AMENDED AND RESTATED MARKETING AGREEMENT

Exhibit 10.1

Execution Version

[*] 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 MARKETING AGREEMENT

This Amended and Restated Marketing Agreement (the “Agreement”) dated as of November 17, 2008 is by and between Jackson Hewitt Inc. whose address is 3 Sylvan Way, Parsippany, New Jersey 07054 (“Company”) and MetaBank d/b/a Meta Payment Systems whose address is 5501 Broadband Lane, Sioux Falls, South Dakota 57108 (“Bank”). Each may be referred to as a “Party” or collectively as “Parties.” Capitalized terms not defined in the context of a provision of this Agreement have the meanings set forth in Article I.

RECITALS

WHEREAS, Company and Bank are parties to that certain Card Marketing Agreement, dated December 10, 2007 (“Original Agreement”);

WHEREAS, Company (i) is the franchisor of the Jackson Hewitt Tax Service ^® tax preparation system to independently owned and operated franchisees (“Franchisees”) and (ii) through Tax Services of America, Inc., a wholly owned subsidiary, owns and operates certain Jackson Hewitt Tax Service locations (“Corporate Stores,” and together with Franchisees, “Operators”);

WHEREAS, the Operators provide income tax return preparation with electronic filing and related services to their customers (“Customers”);

WHEREAS, Bank is a duly registered principal member of the MasterCard, Discover, and the Visa payment card associations (each a “System” and, collectively, the “Systems”) and is authorized to provide the Programs;

WHEREAS, Company desires to offer the Programs to (i) Customers, (ii) employees of Franchisees, Company, and Company’s affiliates (collectively, the “Employees”), and (iii) certain other eligible Persons; and

WHEREAS, Company and Bank wish to amend and restate the Original Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth, the receipt and sufficiency of which is acknowledged, the Parties, intending to be legally bound, agree as follows:

ARTICLE I - DEFINITIONS

Except as otherwise specifically indicated, the following terms shall have the following meanings in this Agreement (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“Applicable Law” means, collectively, (i) the Rules, (ii) the Guidelines, and (iii) all other federal, state and local statutes, codes, regulations, rules, laws, published regulatory guidelines and judicial or administrative orders and interpretations which are applicable to the Cards, Programs, and each Party in the performance of its obligations under this Agreement, as they may be modified from time to time.

“Applicant” means any Person who applies for a Card or Credit Product.

“Business Day” means any day other than a Saturday, Sunday, legal holiday or other day on which banks in the State of South Dakota are required or permitted by law to be closed.

“Card” or “iPower Card” means a non-personalized or personalized System branded, prepaid, reloadable, debit card bearing Company Intellectual Property issued within a Card Program by Bank.

“Card Deliverables” means the Cards, Cardholder Agreements, Card Packets, and all disclosures, consents and procedures required under Applicable Law with respect to a Card Program.

 

1

Execution Version

 

“Card Packet” means the Card, Card carrier, Card activation sticker on the Card, welcome brochure or letter, Cardholder Agreement, Bank’s privacy policy, related promotional material (as mutually agreed), and the outer envelope and such other materials as Bank and Company mutually agree.

“Card Processor” means any Person engaged from time to time by Bank to (i) produce, emboss and deliver Cards, (ii) assemble enrollment kits, (iii) effect and process Cardholders’ transactions on the Cards, and (iv) perform any other Processing Services on behalf of Bank with respect to a Card Program.

“Card Program” means the iPower Card for Disbursements Program described in Exhibit A-1 or the iPower Card with iAdvance Program described in Exhibit A-2 (collectively, the “Card Programs”).

“Card Services” means the prepaid card services provided by Bank to Cardholders through use of the Cards, and all customer service provided by Bank to Cardholders in connection with the Cards, all as set forth in the Cardholder Agreement or this Agreement.

“Cardholder” means any Person to whom a Card is issued.

“Cardholder Agreement” means the agreement between Bank and a Cardholder governing the terms and use of a Card.

“Cardholder Funds” means the funds available for use by a Cardholder from Loads and/or Credit Disbursements after recording the debits and credits with respect to transactions originated by or on behalf of a Cardholder.

“Contract Year” means a period of twelve consecutive months beginning on the execution date of this Agreement or each anniversary of the execution date of this Agreement, whichever is applicable, and ending on the day immediately preceding the anniversary of the execution date of this Agreement.

“Credit Agreement” means the agreement between a Cardholder and Bank setting forth the terms and conditions applicable to each Credit Product Program. A copy of the Credit Agreement for each Credit Product Program is appended as an attachment to the exhibit describing each such Credit Product Program.

“Credit Disbursement” means the disbursement of loan advances under Credit Product Programs.

“Credit Documents” means the Credit Agreement, Credit Product application (including any acknowledgment or consent, to the extent applicable) and any other documents that evidence a Cardholder’s obligation to repay funds advanced by Bank to Cardholder under a Credit Product Program. For avoidance of doubt, the term Credit Documents shall not include any Company documents prepared in connection with any tax, budgeting, planning services, or related promotional offers, coupons, sweepstakes, and the like provided by Company to Customers, Employees or other Persons.

“Credit Processor” means any Person engaged from time to time by Bank to (i) effect and process transactions initiated by or on behalf of a Cardholder with respect to a Credit Product Program, and (ii) provide any other Processing Services on behalf of Bank with respect to the Credit Products.

“Credit Products” or “Credit Product Programs” means all credit programs provided by Bank to Customers, Employees, and other Persons, the financial terms of which are set forth on an exhibit to this Agreement. The term “Credit Products” is currently limited to the iAdvance Credit Product (as described in Exhibit A-3) and the iPower Plus Line of Credit Product (as described in Exhibit A-5 ).

“Credit Services” means the services provided by Bank to Cardholders in connection with a Credit Product Program, and all customer service provided by Bank to Cardholders in connection therewith, all as set forth in the applicable Credit Agreement or this Agreement.

“Effective Date” means December 10, 2007, the date the Original Agreement first went into effect.

“Funds Transfer Information” means information provided to Bank by Company so that Bank can credit or debit the Omnibus Account in connection with the Cardholder Funds made available to each Cardholder.

“Intellectual Property” means all Marks, and patents, copyrights, other information, art or design work, copy or other material for which a Party holds intellectual property rights, and all trade secrets, confidential and proprietary information, business models, methods of doing business, know-how and all other intellectual property rights.

“Load” means that value has been added to a Card from a source other than Credit Disbursements.

 

Execution Version

 

“Mark” means the service marks and trademarks of each member of the System, Bank, and Company, including but not limited to, the names and other distinctive marks or logos which identify the Systems, Bank, and Company.

“Marketing Materials” shall mean any marketing material, advertising pieces, sales literature, scripts, and other materials, including but not limited to, email solicitation messages, published advertising (such as newspaper and magazine advertisements), Internet media, telemarketing scripts, television or radio advertisements, brochures, card designs, disclosures, frequently asked questions, interview or public speaking scripts and talking points, sales materials, and press releases, produced by Company and used by Company and/or Operators relating to a Program (which materials shall expressly exclude any and all materials included in the Card Packet, and any other materials Bank may, in its discretion, produce and or distribute to prospective Applicants or Cardholders in accordance with the terms of the Agreement).

“Omnibus Account” means an account (i) that is insured by the Federal Deposit Insurance Corporation, (ii) that is created and established by Bank on behalf of Cardholders at Bank in connection with the Programs, and (iii) into which funds Loads and Credit Disbursements will be deposited to provide Cardholders access to Cardholder Funds.

“Person” means, as the context requires, a human being and/or any firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, joint venture, business trust, association or other legal entity other than a Party.

“Pre Tax Season” means the period beginning on [*] and ending on [ * ], or such other period as may otherwise be mutually agreed upon by the Parties.

“Processing Services” means those services described herein or commonly performed under the management and direction of Bank by a Card Processor or Credit Processor which are necessary to manage a Program and process transactions in accordance with Applicable Law. Such services shall include but shall not be limited to: set-up and maintenance of a Program and Cards, transaction authorization, processing, clearing and Settlement, System access, Card Services, Credit Services, Cardholder dispute resolution, collections, System compliance, regulatory compliance, security and fraud control, and activity reporting.

“Program” means a Card Program or a Credit Product Program (collectively, the “Programs”).

“Provider” means the financial institution(s) identified by Company, from time to time, as a provider of Tax Related Financial Products.

[*]

“Regulatory Authority” means, as the context requires, any System; the State of South Dakota; the Office of Thrift Supervision; the Federal Reserve Board; the Federal Deposit Insurance Corporation, and any federal or state agency having jurisdiction over Bank or Company.

“Rules” means, as applicable, the by-laws and operating rules of any System member and Bank’s published policies and procedures applicable to the Programs, as promulgated by Bank’s Board of Directors in good faith to ensure Bank’s safety and soundness.

“Settlement” means the movement and reconciliation of funds between Bank and System members in accordance with the Rules.

“Tax Refund” means a refund by a taxing authority of funds paid by a Customer in excess of such Customer’s tax liability to such taxing authority.

“Tax Related Financial Products” means loan and non-loan products provided by Providers to Customers from time to time through Operators. As of the Effective Date, Tax Related Financial Products consist of Assisted Refunds, Assisted Refund/Bank Loans, Refund Anticipation Loans, and Money Now Loans.

“Tax Season” means the period beginning on January 2 or on such later date as the parties mutually agree upon and ending on April 15th or on such later date as the Internal Revenue Service permits the filing of federal income tax returns without the taxpayer requesting an extension. Unless otherwise specified, the term “Tax Season” shall also include the corresponding Pre Tax Season.

 

Execution Version

 

“Term Year” means any calendar year during the Term of this Agreement beginning January 1 and ending December 31, except that the first Term Year shall mean the period beginning on the Effective Date of this Agreement and ending on December 31 of the next calendar year.

ARTICLE II - PRODUCTS

Section 2.1 Bank and Company have agreed to provide the Programs described in Exhibit A-1 , Exhibit A-2, Exhibit A-3 and Exhibit A-5 , beginning on one or more mutually agreeable dates after the Effective Date pursuant to the terms described in such Exhibits.

Section 2.2 Upon completion of development and testing, Bank intends to offer additional programs during the Term, including, without limitation, (a) [*], (b) a rewards program currently known as the iPower Rewards Program, and (c) any other customized programs that the Parties may mutually agree to make available to Customers, Employees and other Persons during the Term. Any additional programs provided by Bank pursuant to this Agreement, including the proposed programs described in this Section, shall be separately described and agreed to in writing by the Parties and attached as exhibits to this Agreement. Nothing in this Section 2.2 shall constitute a binding obligation on Bank to offer such additional programs.

Section 2.3 [*]

Section 2.4. Subject to Bank approval and provided such features and enhancements comply with Applicable Law, Bank agrees to use commercially reasonable efforts to introduce new features to or otherwise enhance a Card Program within a reasonable time and upon mutually agreeable terms after receipt of Company’s reasonable request.

ARTICLE III

ARTICLE III - DUTIES OF BANK

Section 3.1 General.

Bank shall perform through itself, or with Company’s prior written approval, the Bank’s processors or affiliates, all Processing Services, including, without limitation, the following:

(a) establish, maintain and manage the relationship between Bank, as the issuer of the Cards, and Applicants and Cardholders;

(b) prepare and produce the Card Deliverables,

(c) prepare the Credit Documents related to the Credit Products, which shall be reproduced and provided to Applicants by Operators exactly as agreed upon by the Parties, and, in the case of the iPower Line of Credit Program, signed by Applicants and, if applicable, the joint filer pursuant to Applicable Law;

(d) replenish non-personalized Card stock upon request by Company no later than December 15 of each year, as required by a Card Program at any other time of the year, or as otherwise mutually agreed upon by the Parties;

(e) distribute, as mutually agreed to ensure agreed upon delivery deadlines, (i) Card Packets and applicable Credit Documents to Company, Operators or otherwise (at Company’s reasonable discretion), (ii) any subsequent disclosures required to be provided to Cardholders under the terms of the Cardholder Agreement, Credit Agreement and/or Applicable Law or this Agreement, (iii) electronic transaction histories to Cardholders that detail the activity on such Cardholder’s Card, and (iv) periodic statements to participating Cardholders that detail the transaction history and rate information for each Credit Product Program in which they are enrolled; provided that with respect to subpart (i) in this Section 3.1(e), overnight delivery shall be the method of distribution if needed to ensure an Operator has sufficient supply of materials at all times during Tax Season;

(f) provide a Card manufacturing and embossing schedule upon mutual consent for the 2008/2009 Tax Season and for each subsequent Tax Season;

(g) deliver to Company’s processing centers the number of Cards that Bank and Company mutually agree is sufficient to meet reasonably anticipated demand;

(h) subject to Section 3.10, receive and process Funds Transfer Information and make funds available via a Load or Credit Disbursement for a Cardholder such that Cardholder Funds are available within one hour of Bank’s receipt of such Cardholder’s Funds Transfer Information;

 

Execution Version

 

(i) at Bank’s expense, conduct all Office of Foreign Assets Control screening upon receipt of Funds Transfer Information;

(j) authorize and effect credits to and debits from Cardholder Funds in connection with transactions initiated on Cards by or on behalf of Cardholders, and maintain (or cause to be maintained on its behalf) records of such transactions and fees related thereto, consistent with industry standards;

(k) (i) include written disclosures in each Card Packet that lists all actions a Cardholder should take in the event such Cardholder’s Card or PIN is damaged, lost or stolen and, (ii) upon receiving notice from a Cardholder that his or her Card or PIN has been damaged, lost or stolen, take prompt action to block the Card and promptly issue a replacement Card in accordance with Applicable Law. Cards may be delivered via overnight carrier upon request by and at the sole cost of the Cardholder;

(l) maintain in full force and effect all licenses, permits and other governmental authorizations required of it to perform its obligations under this Agreement;

(m) comply with all the terms and conditions set forth in the Cardholder Agreement, the Credit Documents, the provisions of this Agreement, as the same may hereafter be amended in accordance with the terms of this Agreement, and Applicable Law in connection with the conduct of its business and its participation in each Program (including the provision of Processing Services);

(n) ensure that the Processing Services comply with Applicable Law, including, but not limited to, consumer protection laws, laws that regulate unfair and deceptive acts and practices, anti-money laundering laws and abandoned property laws;

(o) ensure that all Card Deliverables and Credit Documents comply with Applicable Law;

(p) promptly give written notice to Company of any material adverse change in the business, properties, assets, operations or condition, financial or otherwise, and any pending, or threatened litigation involving a Program;

(q) own or otherwise hold valid rights to use its Marks that are used in connection with a Program;

(r) maintain and protect the confidentiality of Customer Information (as defined in Section 9.3) furnished to Bank by (or on behalf of) Company, Operators, Customers, Employees or other Persons;

(s) provide to Company such documentation and information that Company may reasonably request to confirm Bank’s compliance with its obligations under this Agreement;

(t) comply with Bank’s privacy policy.

Section 3.2 Documentation for Programs

(a) Initial Program Documentation.

(i) With respect to the iAdvance Credit Product Program, as such term is defined in paragraph 1 of Exhibit A-3 , and any additional programs the Parties may mutually agree to offer to Cardholders year round, Bank, at its sole expense, shall design and provide to Company for review and reasonable suggestion and comment the proposed form and content of all Card Deliverables or Credit Documents, whichever is applicable (“the Program Documentation”), for each such Program at least thirty (30) days prior to implementation of any such Program.

(ii) With respect to the Card Programs, iPower Plus Line of Credit Program and any additional programs the Parties may mutually agree to offer only during a Tax Season, Bank, at its sole expense, shall design and provide to Company for review and reasonable suggestion and comment the proposed form and content of all Program Documentation for each such Program. Bank shall use reasonable efforts to provide all such Program Documentation to Company for review and reasonable suggestion and comment prior to September 1 of each upcoming Tax Season during the Term.

(b) Changes to Program Documentation.

(i) The Program Documentation relating to the Programs described in Section 3.2(a)(i) may be subsequently changed from time to time by Bank in its sole discretion as Bank deems necessary.

 

Execution Version

 

(ii) Any changes to the Program Documentation for any for the applicable Programs described in 3.2(a)(ii) shall be provided by Bank to Company in writing at least thirty (30) days prior to the proposed change becoming effective (or such shorter time as may be required by a Regulatory Authority) by Bank delivering to Company a written notice of change that includes (i) a summary of the changes to the Program Documentation and the date when such changes are proposed to go into effect and (ii) the reason for the changes. Company may object to such changes if Company determines that Bank’s proposed changes violate Applicable Law or that such changes will have a significant adverse economic impact on Company (each a “Permissible Reason”). If Company objects to the proposed changes, Company must notify Bank by providing a written notice of objection within ten (10) Business Days of Company’s receipt of Bank’s written notice of change. Company’s written notice of objection must state the Permissible Reason for the objection and include written support for its determination. Following Bank’s receipt of Company’s notice of objection, the Parties shall use commercially reasonable efforts to work together to develop mutually acceptable changes that will satisfy Company’s objections. If the Parties are unable to develop mutually acceptable changes to the Program Documentation, either Party may terminate the Program to which the proposed changes relate pursuant to Section 8.3 of this Agreement. If for any reason, Company fails to respond to Bank with a notice of objection within the required time frame, such changes to the Program Documentation shall be deemed approved.

Section 3.3 Designated Contact.

Bank agrees to designate a program manager who shall serve as the primary contact for Company regarding the Programs, and to provide such other technical and operational support as Company may reasonably request to implement and manage the operation of the Programs.

Section 3.4 Customer Service.

(a) Cardholder Support. Bank shall perform all customer service functions with respect to the Programs. Each Card (and any Cardholder communication relating thereto) shall identify a toll-free telephone number and Internet website address through which Cardholders may obtain information and make inquiries regarding the Cards and Credit Products. Specifically, during the Term, Bank shall (i) maintain a toll free telephone number with Interactive Voice Response (“IVR”) service (in English and, except in the case of the iAdvance Credit Product, Spanish) and Internet website for Cardholders to check available balances, transactions, or request a new PIN, or request Credit Disbursements (if applicable), which service shall be available 24 hours per day, seven days per week; and (ii) provide live operator customer service (in English and, except in the case of the iAdvance Credit Product, Spanish) for the Card Programs through the IVR service Monday through Friday 9 a.m. – 11 p.m., Saturday 9 a.m. – 6 p.m., Sunday 11 a.m. – 5 p.m. beginning January 11 and ending on April 30 (with the exception of holidays and in all cases, Eastern time) and, with respect to any Credit Product, at such times as the parties shall mutually agree upon. Bank shall service all inquiries and matters relating to the Cards and Credit Products in a prompt and professional manner in accordance with industry standards of practice, and in compliance with Applicable Law. Without limiting the foregoing, Bank shall use commercially reasonable efforts to respond to Cardholder inquiries in accordance with the service level agreements (“SLAs”) established between Bank and the Card Processor or Credit Processor, which SLAs are attached hereto as Exhibit B . Bank shall send an updated copy of such SLAs to Company upon any revision of such SLAs. At all other times, Bank shall provide customer service levels that are customary for debit card providers.

(b) Operator Support. During the Term, maintain a toll free telephone number (separate from the telephone number established and maintained by Bank pursuant to Section 3.5(a)), with live operator customer service (in English and, except in the case of the iAdvance Credit Product, Spanish) for Operators to obtain information and make inquiries regarding the Programs, including the Cards, Credit Products, Processing Services and the terms and conditions set forth in the Cardholder Agreement and Credit Documents, which service shall be available (i) Monday through Friday 9 a.m. – 11 p.m., Saturday 9 a.m. – 6 p.m., Sunday 11 a.m. – 5 p.m. beginning January 11 and ending on April 30 (with the exception of holidays and in all cases, Eastern time) and (ii) during all times during the Term, Monday through Friday 9 a.m. – 5 p.m. to provide such information and to handle such inquiries (with the exception of holidays and for each U.S. time zone). Bank shall service all inquiries of the Operators in a prompt and professional manner in accordance with industry standards of practice, and in compliance with Applicable Law. At all other times, Bank shall provide customer service levels that are customary for debit card providers and shall require that all customer service representatives are sufficiently familiar with all aspects of the Programs.

(c) Call Referrals. Company shall refer all Cardholder inquiries regarding the Cards, Card Services, or Credit Services to the toll-free phone number provided to it by Bank. Bank shall refer all inquiries regarding the status of any Cardholder’s Tax Refund or Tax

 

Execution Version

 

Related Financial Product and all other inquiries that are unrelated to the Cards, Card Services, or Credit Services to Company’s customer service call center or to the relevant Provider call center, as applicable. Bank shall handle all inquiries or disputes relating to the Cards, Card Services or Credit Services, and Company shall handle all Cardholder inquiries or disputes relating to Company’s and its Providers’ products and services, in each case, in compliance with Applicable Law.

Section 3.5 Memberships in System.

Bank shall obtain and maintain its membership in each System and maintain all related licensing rights (“Membership”) at its sole expense, and shall timely pay all fees, dues, and assessments associated therewith. If a System elects to terminate Bank’s Membership for any reason, Bank shall give notice to Company promptly after it receives notice from such System.

Section 3.6 Program Services.

Bank shall be solely responsible for the production of all Card Packets, including, without limitation, all expenses related thereto. The Cardholder Agreement shall identify Bank as the issuer of the Cards and holder of all Cardholder Funds.

Section 3.7 Bank Enhancements.

If during the Term Bank develops new features or functionality related to tax preparation services provided by Company or its Operators to Customers (“Bank Enhancements”), Bank will offer Bank Enhancements to Company prior to offering them to a Company Competitor. Bank Enhancements do not include features under development by Bank prior to the Effective Date of this Agreement that have been communicated to the market or otherwise disclosed to the Company, including such products as network messaging or any other feature that Bank develops at the request of any of Bank’s customers. As used herein “Company Competitor” means any business directly or indirectly engaged in the preparation of individual income tax returns, including, but not limited to, tax preparation services, aggregators and businesses engaged in the development of computer software used for the purpose of preparing individual income tax returns.

Section 3.8 New Features.

Bank agrees that for any new feature or functionality that Company designs and offers solely to Bank, Bank will not make any of these features or functionalities available to Company’s competitors. Notwithstanding the foregoing, should a Company competitor, without any support or assistance from Bank, create a similar feature, Bank shall have the right to support and deliver such feature, but only to the extent that it can do so without violating its obligations under this Agreement.

Section 3.9 Subcontractors.

Upon Company’s prior written consent, not to be unreasonably withheld by Company, Bank may contract with one or more Persons to perform services that enable Bank to perform its obligations under this Agreement, the Cardholder Agreement, or any Credit Agreement. Bank agrees that any Person with which it subcontracts shall be bound by the applicable obligations and representations and warranties and to the service levels described herein and that subcontracting shall not result in any degradation of the Processing Services. Notwithstanding anything to the contrary in any such subcontract, Bank shall retain full responsibility for any acts or omissions of any such subcontractor.

Section 3.10 Card Loads.

Bank covenants that 99% of all Loads requested by or for a Cardholder and Credit Disbursements requested by or for a Cardholder with respect to the iPower Plus Line of Credit Program shall be available for such Cardholder’s use within one hour of Bank’s receipt of a Cardholder’s Funds Transfer Information.

Section 3.11 Pay Compensation.

Bank shall pay as and when due the compensation to which Company is entitled, as set forth in Exhibit A to this Agreement.

Section 3.12 Communications with Governmental Authorities.

Unless otherwise prohibited by Applicable Law or a Regulatory Authority, Bank shall promptly notify Company of any communications from or with a Regulatory Authority or any official thereof, including without limitation any member of

 

Execution Version

 

Congress, official of the executive branch of the United States Government, state legislator, or federal or state agency with respect to a Program and promptly provide Company with a summary of any written or verbal correspondence or communications with or from any of the above parties, to the extent such correspondence or communications (a) negatively impact the continuation of the Program; (b) contain criticisms regarding operation of the Program; or (c) provide guidance to make changes to any aspect of the Program.

ARTICLE IV - DUTIES OF COMPANY

Section 4.1 General.

During the Term, Company shall:

(a) subject to the terms of this Agreement and Applicable Law, (i) distribute Cards and Credit Documents to Operators, as mutually agreed to ensure agreed upon delivery deadlines, (ii) provide Operators with the tools necessary to prepare and electronically transmit Customer tax returns to the Internal Revenue Service and applicable state taxing authorities, and (iii) facilitate the offer and sale of Tax Related Financial Products;

(b) for applicable Programs, require Operators to (i) verify the identity of Applicants who apply for a Card or Credit Product in accordance with Company’s standard authentication policies and procedures, which shall be of the same quality as Bank’s policies and procedures, (ii) distribute a Card Packet to Applicants who are approved for a Card, (iii) distribute a Credit Agreement to Applicants who are approved for a Credit Product in accordance with Applicable Law;

(c) subject to Applicable Law, exercise due care to accurately provide or require Operators to accurately provide Applicant’s personal data that may be required to participate in a Program, such as name, address, social security number, home phone number, and any other information Bank reasonably requests in connection with the issuance of Cards and providing of Credit Products to Applicants (“Enrollment Information”) to Bank (or its permitted designee) on the same day as the Enrollment Information becomes available to Company or its Operators, in such format and through such means or media as Bank and Company shall mutually agree;

(d) require its Operators to ensure that all applications for Cards and any applications, acknowledgement or consents related to the Credit Products are properly executed by the Applicant and, if applicable, the joint filer pursuant to Applicable Law;

(e) provide, or arrange for the provision of, Funds Transfer Information to Bank (or its permitted designee), on the same day as the such information becomes available to Company or its Operators, in such format and through such means or media as Bank and Company shall mutually agree;

(f) own or otherwise hold valid rights to use its Marks that are used in connection with a Program;

(g) provide reasonable efforts to act as the liaison between Bank and any Provider;

(h) maintain, and require Operators to maintain, in full force and effect, all licenses, permits and other governmental authorizations required of Company or an Operator to perform Company’s obligations under this Agreement or to provide any tax planning or budgeting services in conjunction with the Programs provided under this Agreement;

(i) comply with all the provisions of this Agreement, as the same may hereafter be amended in accordance with the terms of this Agreement, and Applicable Law in connection with the conduct of its business and its participation in a Program;

(j) promptly give written notice to Bank of any material adverse change in its business, properties, assets, operations or condition, financial or otherwise, and any pending or threatened litigation involving a Program, Tax Related Financial Product, or any other services or products provided by Company in connection with any of the Programs;

(k) maintain and protect, and require its Operators maintain and protect, the confidentiality of Customer Information furnished to Company or its Operators by (or on behalf of) Bank or Cardholders;

(l) comply with Company’s privacy policy;

(m) provide to Bank such documentation and information that Bank may reasonably request to confirm Company’s compliance with its obligations under this Agreement;

 

Execution Version

 

(n) participate, and allow Cardholders to participate in, certain agreed upon Visa promotions and advertise or communicate, and require its participating Operators to advertise and communicate, such promotions to Cardholders to the extent Visa provides materials and support as agreed for each promotion;

(o) require each Operator who desires to participate in the Card Programs to execute a Card Program Franchisee Agreement with Bank prior to providing, marketing or otherwise participating in the Card Programs; provided, however, that each Operator’s participation in the Card Programs shall be subject to Bank’s approval in its sole discretion;

(p) require each Operator who desires to participate in the iPower Plus Line of Credit Program to execute an addendum to the Card Program Franchisee Agreement with Bank prior to providing, marketing or otherwise participating in such Credit Product Program; provided, however, that each Operator’s participation in the iPower Plus Line of Credit Program shall be subject to Bank’s approval in its sole discretion;

(q) actively market, and require its Operators actively market, Company’s tax planning and budget planning services to the general public on a as stand-alone basis;

(r) require its Operators to maintain possession of all executed Card applications and Credit Product acknowledgments, applications and consents for a period of five years from the date of execution (or deliver the same to Bank, if so requested by Bank, at Bank’s cost and expense);

(s) require its Operators to maintain hard copies of any other Card Deliverables or Credit Documents that the Parties mutually agree to retain.

Section 4.2 Designated Contact.

Company shall designate a senior employee who shall serve as the primary contact for Bank with respect to the Programs, and to provide such other technical and operational support as Bank may reasonably request to implement and manage the operation of all Programs.

Section 4.3 Security Approval Form.

Company shall require each Operator to complete any security approval form required by each System (the “Security Form”) in respect of such Operator’s location(s). Company shall distribute, collect and retain (for at least one year following the date of collection) the Security Forms to be provided to Bank upon Bank’s request. Company shall not distribute Cards to any Operator or location that fails to complete a Security Form.

Section 4.4 Customer Service Support.

Company shall use commercially reasonable efforts to assist Bank in addressing Cardholder issues, as requested by Bank from time to time.

Section 4.5 Unused Cards.

Company shall require each Operator to destroy any unused non-personalized Cards within 40 Business Days after the end of each Tax Season (excluding the Pre Tax Season) or within such other periods as mutually agreed upon by the Parties, at Company’s expense. Company shall certify such destruction on a form to be provided by Bank.

Section 4.6 Operators.

Company shall deliver instructions to Operators and Providers as required under this Agreement and shall use commercially reasonable efforts to ensure that Operators comply with all such instructions, including, but not limited to, audit procedures to assess each participating Operator’s conformance to Company policies and procedures related to the Programs. Bank may cease providing the Card Programs or Credit Products described herein at any Operator location where compliance with Applicable Law or the requirements set forth in this Agreement have been found to be deficient by Bank or Company.

Section 4.7 System Integration.

Company and Operators will interface with Bank or its Card Processor and Credit Processor(s) via an integration method to be mutually agreed by the Parties, and at Company’s sole cost. Company shall establish such additional connections as reasonably requested by Bank at Company’s expense.

 

Execution Version

 

Section 4.8 Communications with Governmental Authorities.

Without first obtaining the express written consent of Bank, Company will not communicate with, respond to inquiries from, or lobby any Regulatory Authority or any official thereof, including without limitation any member of Congress, official of the executive branch of the United States Government, state legislator, or federal or state agency with respect to any matter which might, in any way, affect any Program. The foregoing restriction shall not prevent either Party from responding to any inquiries if: (a) the nature and timing of the inquiry does not reasonably allow for prior input and approval from the other Party, (b) the information being disclosed in such communication is already in the public domain or agreed-upon by the Parties in advance as talking points, or (c) the communication is in response to a request during the course of an earnings call or other public disclosure required under applicable securities laws, rules and regulations. Further, Company shall promptly notify Bank of any such inquiries with respect to a Program and promptly provide Bank with copies of any correspondence received pursuant to this Section 4.8, unless otherwise prohibited by law. For the purpose of clarity, this Agreement shall not restrict Company from engaging in Governmental Communications regarding Company services or products not otherwise pertaining to a Program.

Section 4.9 Marketing of Programs.

(a) Program Promotion. Company shall use commercially reasonable efforts to (i) actively promote the Programs to Operators and prospective Cardholders and (ii) require participating Operators to actively promote the Programs to Customers, including requiring participating Operators to advertise the Programs to Customers through any means that Company, at its sole discretion, shall deem appropriate, including making available, in Company locations, a sales/information brochure to Customers. Notwithstanding the foregoing, Bank understands and agrees that Company makes no representation or warranty concerning participation in the Programs by any Operator, Customer, Employee or other Person.

(b) Company’s Production of Marketing Materials. Company shall create and produce Marketing Materials for each of the Programs of a character, quality and quantity in its sole discretion.

(c) Bank’s Approval of Company’s Marketing Materials. Any and all Marketing Materials produced by Company shall be subject to Bank’s prior approval, which shall not be unreasonably withheld. Bank shall (i) complete its review of any Marketing Materials submitted to it, and use commercially reasonable efforts to obtain any approvals required by the Systems, within 10 Business Days following such submission; (ii) ensure that the Marketing Materials comply with Applicable Law, and furnish to Company for inclusion with such Marketing Materials all notices and disclosures regarding Card Services or Credit Services that are required by Applicable Law; and (iii) be responsible for the accuracy of the content of the Marketing Materials relating to its own services and performance obligations. Notwithstanding the foregoing, Company and not Bank shall be solely responsible for ensuring that Marketing Materials comply with Applicable Law insofar as they pertain to any Tax Related Financial Product or Company’s tax planning or budget planning services.

(d) Bank’s Production of Marketing Materials; Company’s Approval of Bank’s Marketing Materials. Bank agrees that Company may, in its sole discretion, provide Cardholders with promotional offers related to the services provided by Operators. Bank further agrees that any marketing or promotional materials that Bank wishes to distribute to prospective Applicants, Cardholders, or Customers regarding the Card Programs or Credit Programs or any of Bank’s current or future products to be provided by Company shall be subject to Company’s prior review and approval, which shall not be unreasonably withheld. Any such materials which Company approves shall be produced and distributed by Bank at Bank’s sole expense, unless otherwise mutually agreed upon by the Parties.

Section 4.10 Reimbursement of Termination and Performance Fees.

Prior to providing a Program, Company will provide Bank with certain projections so that Bank may enter into a contract with (a) a Card Processor for the provision of Processing Services, and (b) a Credit Processor for provision of iPower Plus Line of Credit Program. If at the end of a Contract Year it is determined that the projections such Contract Year have not been met due to the following events (i) Company’s notifies Bank of its decision not to offer the Card Programs and/or the iPower Plus Line of Credit Program, (ii) Company delays the start of the Card Programs and/or the iPower Plus Line of Credit Program, or (iii) less than a majority of Operators execute the Card Program Franchise Agreement with Bank and the addendum to the Card Program