6. Fees and Incentives.
6.1 Any fees or incentives due ERO will be paid directly to ERO unless there is an agreement or understanding between a Service Bureau and ERO that such fees will be paid to the Service Bureau. Fees due ERO from any Taxpayer will be paid to ERO (or Service Bureau, if applicable) upon the receipt of the Taxpayer's refund from the IRS or state taxing authority and satisfaction of any other authorized deduction(s) by the Taxpayer; provided, however, the amount of the total fees paid to ERO related to any particular Taxpayer may be limited by Refund Advantage to an amount that Refund Advantage may deem as reasonable, judged in the sole discretion of Refund Advantage.
6.2 The amount of a Taxpayer's refund will be applied in the following order:
(a) first, to any amount due Refund Advantage or Bank in connection with any Product provided pursuant to the Agreement;
(b) second, to any amount due any third-party service provider authorized by Taxpayer including transmitter fees or fees due to any third-party service provider;
(c) third, to any other deduction authorized by the Taxpayer not included under (a) or (b) above or (d) below;
(d) fourth, to any tax preparation fees, including e-file fees, specifically authorized by the Taxpayer, and
(e) finally, any balance will be disbursed to the Taxpayer.
6.3 ERO understands and agrees that its fees are the obligation of the Taxpayer, not Refund Advantage or Bank, and that ERO shall look solely to the Taxpayer to recover any fees in excess of the amount withheld from the amount of the refund received from the IRS or state taxing authority: provided, however, that in no event will ERO attempt to collect or represent that it is collecting any amount due Refund Advantage or on behalf of Refund Advantage in connection with any Product.
6.4 ERO understands and agrees that there may be fees or charges associated with its usage of Refund Advantage's services, or with the services of ERO's tax preparation software provider (TPSP") as may be further disclosed in any schedule attached hereto or other financing arrangement between Refund Advantage and ERO. By using Refund Advantage's services, ERO authorizes and agrees that Refund Advantage may deduct any amount ERO may owe Refund Advantage for services or materials that ERC has purchased from Refund Advantage, or for service fees that may be imposed by Refurid Advantage or by ERO's TPSP in connection with tax refund product facilitation services provided by Refund Advantage or by the TPSP. Such amounts due Refund Advantage or the TPSP will be deducted from the fees or other amounts otherwise due ERO under this Agreement. ERO understands and agrees that if the amount of payments due ERO is insufficient to pay ERO's outstanding obligations with Bank and/or its divisions, Bank and/or its divisions may recoup the amount of such payments from any entity owned by ERO.
6.5 Refund Advantage may, in its sole discretion, retain in a non-interest-bearing account any fee payable or which might be paid under this Agreement that Refund Advantage believes, in good faith, to be in dispute, or any such fees that arise from acts, errors, or omissions of ERO that Refund Advantage, in its sole discretion, considers fraudulent or suspicious. Refund Advantage may also withhold any fee or compensation otherwise due ERO under this or any ERO Agreement (including amounts due ERO for any other EFIN of that ERO, as listed in Refund Advantage's records) to ensure completion of the compliance requirements or related corrective action of which Refund Advantage has advised ERO. If ERO objects to any action Refund Advantage takes under this Section, ERO will provide written notice of its objection to Refund Advantage no later than thirty (30) days after ERO has been advised that the subject action was undertaken and Refund Advantage will, upon receipt of such notice, have thirty (30) days to investigate the grounds for ERO's objection; provided, however, that withheld fees that are not paid to ERO, returned to the IRS and/or appropriate state taxing authority, or disbursed to a Taxpayer within one (1) year will be posted against losses accrued by Refund Advantage related to ERO and/or otherwise forfeited to Refund Advantage. ERO further agrees to reimburse Refund Advantage any costs Refund Advantage incurred enforcing its rights under the applicable ERO Agreement, including collection costs, e.g., reasonable attorney fees and court costs; and ERO will also reimburse Refund Advantage expenses arising from Refund Advantage's investigation of fraudulent or suspicious activity of ERO arising under the scope of this Agreement.
6.6 ERO agrees that Refund Advantage may, without notice and without any liability to ERO, withhold any fees, payments, or incentives otherwise due ERO for any one or more of the following reasons:
(a) ERO or any of its officers, directors, shareholders or employees (or similarly situated persons) has ever been denied by the IRS a request for an EFIN or PTIN and a reasonable explanation for such denial, judged in the sole discretion of Refund Advantage, has not been furnished to Refund Advantage;
(b) ERO violates any provision of this Agreement or any policy or procedure contained herein or in the Guidelines;
(c) ERO elects to wind up or dissolve its operations or is involuntarily wound up and dissolved, or becomes insolvent, incurs a material adverse change in its financial condition, makes an assignment for the benefit of creditors, files a voluntary petition in bankruptcy for its reorganization or is adjudicated as bankrupt or insolvent;
(d) Refund Advantage elects to terminate the Program;
(e) ERO directly or indirectly submits any fraudulent returns for payment under the Program;
(f) ERO directly or indirectly submits any fraudulent Applications;
(g) ERO's filing practices reveal that the Refund Advance applications submitted by ERO, as determined in the sole discretion of Refund Advantage, will result in a risk of excessive credit losses to Refund Advantage (for the avoidance of doubt, to the extent Refund Advantage incurs credit losses in excess of the applicable credit-loss-threshold established by Refund Advantage, in its sole and absolute discretion, Refund Advantage may deduct, offset, or withhold from any fees, payments, or incentives otherwise payable to ERO any such excess amounts);
(h) ERO refuses to assist with the investigation or resolution of Taxpayer complaints, refuses to cooperate with an audit request, or the results of such audit establish that ERO is not in compliance with the Guidelines;
(i) ERO misappropriates or fails to deliver any funds to Refund Advantage, Bank, or to any Taxpayer; or
(i) Refund Advantage learns that a Regulatory Authority is investigating ERO's tax filing practices or ERO's marketing to, or communications with, Taxpayers as a potentially unfair, deceptive or abusive practice.
6.7 Per the terms of ERO's original Commercial Loan Agreement(s), Refund Advantage may deduct, offset, or withhold from the amounts otherwise payable to ERO under any ERO Agreement the amounts owed to Bank and/or its divisions under an applicable Commercial Loan Agreement. ERO understands and agrees that if the amount of payments due ERO is insufficient to pay ERO'S outstanding obligations with Bank and/or its divisions, Bank and/or its divisions may recoup the amount of such payments from any entity owned by ERO. To the extent ERO has any outstanding loan obligations with Bank and/or its divisions from any preceding tax season(s), ERO understands and agrees that Refund Advantage's authority to perform the authorized collection methods as described in this Agreement and/or initiate debit entries as described under an applicable Commercial Loan Agreement permits Bank and/or its divisions' collection of any such prior unpaid balance during a subsequent tax season.
ERO understands and agrees that if any condition listed in this Section is determined to apply to a specific EFIN of ERO, the provisions of this Section may apply to amounts due ERO for any other EFIN of that ERO, as listed in Refund Advantage's records.
7. Confidentiality.
7.1 The term "Confidential Information will mean this Agreement and any schedule, exhibit, attachment, or amendment hereto; any information concerning, the objectives of and the financial results of the Program or any Product; sales volumes; any marketing plan and any marketing materials for any Program or Product that are not publicly available; competitive advantages and disadvantages: technological development and information relating to Refund Advantage's software; and all proprietary information, data, trade secrets, business information and other information of any kind whatsoever which a Party ("Discloser") discloses, in writing, orally or visually, to the other Party ("Recipient") or to which Recipient obtains access in connection with the negotiation or performance of this Agreement. Consumer Information will not be Confidential Information, but rather will be subject to the provisions of Section 8 below. Confidential Information will not include information that: (a) is already rightfully known to Recipient at the time it obtains Confidential Information from Discloser; (b) is or becomes generally available to the public other than as a result of disclosure in breach of this Agreement or any other confidentiality obligations; (c) is lawfully received on a non-confidential basis from a third party authorized to disclose such information without restriction and without breach of this Agreement; (d) is contained in, or is capable of being discovered through examination of, publicly available records or materials; or (e) is independently developed by a Party without the use of any proprietary, non-public information provided by the other Party.
7.2 Each Recipient will hold and maintain in confidence the Confidential Information of Discloser and will use and disclose such Confidential Information only for the purposes of performing its obligations or exercising or enforcing its rights with respect to any Program under this Agreement hen hitted by this Agreement Each Recinient may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, including in the course of an examination by a Regulatory Authority; provided (a) that, except in connection with disclosure in the ordinary course of an examination by a Regulatory Authority, the Party subject to such Applicable Law will notify Discloser of any such use or requirement prior to disclosure of any Confidential Information obtained from Discloser in order to afford Discloser an opportunity to seek a protective order to prevent or limit disclosure of the Confidential Information. to third parties, and (b) that the Party subject to such Applicable Law will disclose Confidential Information of Discloser only to the extent required by such Applicable Law. Each Recipient will (i) limit access to Discloser's Confidential Information to those employees, authorized agents, vendors, consultants, and subcontractors who have a reasonable need to access such Confidential Information in connection with this Agreement or the performance of obligations hereunder, (ii) ensure that any Person with access to Discloser's Confidential Information is bound to maintain the confidentiality of Confidential Information in accordance with the terms of this Agreement and Applicable Law, and (iii) maintain the existence of this Agreement and the nature of their obligations hereunder strictly confidential.
7.3 Each Recipient agrees that any unauthorized use or disclosure of Confidential Information of Discloser might cause immediate and irreparable harm to Discloser for which money damages might not constitute an adequate remedy. In that event, Recipient agrees that injunctive relief may be warranted in addition to any other remedies Discloser may have. In addition, Recipient will promptly (but in no event more than twenty-four (24) hours after discovery of same) advise Discloser by telephone and in writing via facsimile or electronic mail of any security breach that may have compromised any Confidential Information, and of any unauthorized misappropriation, disclosure or use by any Person of the Confidential Information of Discloser which may come to its attention and will take all steps at its own expense reasonably requested by Discloser to limit, stop, or otherwise remedy such misappropriation, disclosure or use, including, but not limited to, notification to and cooperation and compliance with any Regulatory Authority.
7.4 Upon the termination or expiration of this Agreement or the cessation by ERO of submission of Applications, ERO will promptly return to Refund Advantage any Confidential Information of Refund Advantage including all forms and documents designed for or used in connection with the Program, including all completed Applications, and shall properly and securely dispose of all voided, damaged, and/or unused documents and checks. Any Confidential Information maintained in an electronic format will be returned to Discloser in an industry standard format or, at the option of Discloser, deleted and removed from all computers, electronic databases, and other media.. Notwithstanding the foregoing, a Recipient in possession of tangible property containing Discloser's Confidential Information may retain one (1) archived copy of such material, subject to the terms of this Agreement, which may be used solely for regulatory purposes and may not be used for any other purpose. Compliance by Recipient with this Section will be certified in writing by an appropriate officer of such Recipient within thirty (30) days of the end of the Term or the wind-down period, whichever is later, which certification will include a statement that no copies of Confidential Information have been retained, except as necessary for regulatory purposes.
7.5 ERO authorizes and agrees that Refund Advantage may share contact and location information regarding ERO and its business with third-party partners of Refund Advantage to enable Refund Advantage in offering ERO certain benefits that may be of interest to ERO and/or Taxpayers in connection with the facilitation of the Program and Products.
8. Consumer Information.
8.1 The purpose of this Section is to ensure that this Agreement conforms to the applicable provisions of Applicable Law and otherwise sets forth the Parties' agreement with respect to the use and disclosure of Consumer Information. All use and disclosure of Consumer Information under this Agreement will be subject to the provisions of this Section. As between the Parties, the Consumer Information will be owned exclusively by Refund Advantage, including, but not limited to, all completed Applications and copies of disclosures, documents or information, except that ERO will be considered the owner of Consumer Information obtained by Refund Advantage ERO in performing its tax preparation services. Consumer Information of Refund Advantage will not be disclosed to or shared with any Person without prior written consent of Refund Advantage. ERO will implement and maintain appropriate measures designed to safeguard Consumer Information in accordance with industry standards including, but not limited to, firewalls, anti-virus software, spyware detection, utilizing tax preparation software with encrypted data transfer, and software security controls (computer and software logon passwords) and such appropriate physical security methods, including, but not limited to, storage of all Consumer Information not in use, and appropriate access and security measures for its office location(s). ERO shall, at no time, allow public access to Consumer Information. ERO agrees to keep all Consumer Information maintained in physical paper form in locked filing cabinets and/or behind a locked door at all times, and shall shred and then safely dispose of Consumer Information that is not required to be retained. Furthermore, ERO shall not take any Consumer Information in any form out of the United States. Except as provided herein, and subject to the limitations stated herein, ERO shall not compile, sell, or otherwise distribute any lists of Taxpayers for use by any third parties. ERO will instruct its employees, agents, and contractors as to the confidentiality of the Consumer Information and will not disclose any such Consumer Information to any Person. ERO also agrees that any internal dissemination of Consumer Information will be restricted to "a need to know basis" for the purpose of performance hereunder. ERO will protect all Consumer Information from disclosure with no less than the same degree of care afforded by it to protect its own Confidential Information. The foregoing restrictions on disclosure of Consumer Information will apply for so long as is required under Applicable Law.
8.2 ERO will comply with all security policies and procedures, as set forth in the Guidelines and as required by the IRS, and such reasonable and appropriate safeguards are and will remain in place. ERO will provide training to all tax preparers, employees, affiliates, and contractors as to such electronic and physical security measures.
8.3 ERO agrees that in the event there is a breach of security resulting in unauthorized disclosure of Refund Advantage's Confidential Information or Consumer Information, ERO will promptly notify Refund Advantage of such breach, the nature of such breach, and the corrective action taken to respond to the breach, and ERO will indemnify Refund Advantage for any losses, expenses or costs (including reasonable attorney fees) incurred by Refund Advantage as a result of such breach. ERO shall assess the nature and scope of an incident and specifically identify the Consumer Information that has or may have been lost or stolen and potentially improperly accessed or misused. ERO shall take appropriate steps to contain and control any incident of breach of security relating to the Consumer Information, assist Refund Advantage with all reasonably requested steps needed to make all notifications required of any such breach, prevent harm or inconvenience from such breach, and agrees, upon request, to indemnify Refund Advantage for any loss or costs associated with any breach of security or unauthorized disclosure, including but not limited to the cost of providing notification and credit monitoring to Taxpayers.
8.4 ERO represents and warrants that it has policies and procedures with respect to its internal controls, including proper controls to maintain compliance with applicable security standards, and will provide Refund Advantage a copy of a summary of such policies and procedures as requested. To the extent such policies and procedures are materially amended thereafter, ERO will provide Refund Advantage a copy of a summary of such amendment.
9. Indemnification.
9.1 Except as otherwise limited by this Agreement, ERO will indemnity, defend, and hold harmless Refund Advantage, its affiliates, subsidiaries, and parents, and their respective officers, directors, employees, and agents, from and against any and all damages, expenses and costs (including without limitation, reasonable attorneys fees), judgments, penalties, and liabilities (including amounts paid in settlement or other disposition) in connection with any lawsuit, action, claim, demand, administrative action, arbitration, or other legal proceeding (a "Third-Party Claim"). disputes, controversies, or litigation arising out of or resulting from: (a) a violation or alleged violation of Applicable Law committed by ERO or its employees or agents; (b) the breach by ERO or its employees or agents of any of its representations, obligations or agreements hereunder; (c) the provision of inaccurate account information to Refund Advantage for the purpose of depositing any proceeds for which ERO is approved in connection with the Program or any Product; (d) the negligence or willful misconduct of ERO or its employees or agents in connection with the performance of its obligations under this Agreement; or (e) any misrepresentation or false or misleading statement made by ERO or its employees or agents to any Person, Regulatory Authority, or legislative body regarding this Agreement or the Program. ERO further agrees to indemnify Refund Advantage, its affiliates, subsidiaries, and parents, and their respective officers, directors, employees and agents, and hold them harmless from and against any loss, liability, or expense (including reasonable attorneys' fees and expenses) directly or indirectly resulting from or arising out of: (i) the fact that any transaction entered into pursuant to this Agreement or any related agreement is in electronic form; (ii) the failure of ERO to use appropriate security and fraud prevention procedures; or (iii) any claim by an ERO that its electronic signature was forged, unauthorized, or otherwise invalid.
9.2 Except as otherwise limited by the Agreement, Refund Advantage will indemnify, defend, and hoid harmless ERO, its affiliates, subsidiaries, and parents, and their respective officers, directors, employees, and agents, from and against any and all damages, expenses, and costs (including, without limitation, reasonable attorneys' fees), judgments, penalties, and liabilities (including amounts paid in settlement or other disposition) in connection with any Third-Party Claims, disputes, controversies or litigation arising out of or resulting from: (a) a violation or alleged violation of Applicable Law committed by Refund Advantage or its employees or agents; (b) the breach by Refund Advantage of any of its representations, obligations or agreements hereunder; or (c) the negligence or willful misconduct of Refund Advantage in connection with the performance of its obligations hereunder.
9.3 If a Third-Party Claim is asserted against any indemnitee (the "Indemnified Party") by any Person who is not a party to this Agreement in respect of which the Indemnified Party may be entitled to indemnification under the provisions of this Section, as the case may be, the Indemnified Party shall give written notice of such Third-Party Claim promptly to the Party against whom indemnification may be sought hereunder (the "Indemnifying Party"); provided that the failure to give such notice shall not relieve the Indemnifying Party of its obligations to indemnify the Indemnified Party hereunder except to the extent that the Indemnifying Party is materially and adversely prejudiced thereby. The Indemnifying Party shall have the right, by notifying the Indemnified Party within ten (10) Business Days of its receipt of notice of such Third-Party Claim, to assume entire control (subject to the right of the Indemnified Party to participate at the Indemnified Party's expense and with counsel of the Indemnified Party's choice) of the defense and settlement of such Third-Party Claim, including, at the Indemnifying Party's expense, employment of counsel subject to the approval of Indemnified Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall not compromise or settle such Third-Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. If the Indemnifying Party gives notice to any Indemnified Party that the Indemnifying Party will assume control of the defense of such Third-Party Claim, the Indemnifying Party will be deemed to have waived all defenses to the claims for indemnification by the Indemnified Party with respect to such Third-Party Claim. Any damage to the assets or business of the Indemnified Party caused by a failure of the Indemnifying Party to defend, compromise, or settle a Third-Party Claim in a reasonable and expeditious manner, after the Indemnifying Party has given notice that it will assume control of the defense of such Third-Party Claim, shall be included in the damages for which the Indemnifying Party shall be obligated to indemnify the Indemnified Party hereunder. In the event that the Indemnifying Party does not assume entire control of the defense and settlement of such Third-Party Claim, any attorneys' fees or other expenses, including the amount of a settlement or judgment incurred by the Indemnified Party in defending such Third-Party Claim, shall be included in the damages for which the Indemnifying Party shall be obligated to the Indemnified Party, provided that the Indemnified Party can show that the Indemnifying Party was obligated to provide indemnification hereunder, and provided further that in the event that the Indemnified Party does show that the Indemnifying Party was obligated to provide indemnification hereunder, the Indemnified Party shall be further entitled to its attorneys' fees and expenses incurred in making such a showing. Notwithstanding anything to the contrary contained herein, in no event shall the Indemnifying Party have the right to control the defense or settlement of any Third-Party Claim to the extent that such Third-Party Claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party which, if successful, could result in a material adverse effect upon the business, affairs, financial condition, or results of operations of the Indemnified Party (as determined in its good-faith judgment).
10. Limitation of Liability.
Neither Party shall be liable to the other for any indirect, incidental, consequential, punitive, or exemplary damages, loss of profit or income, or loss of use or other benefits arising out of or in connection with this Agreement or the services performed hereunder; provided, however, that the limitations set forth in this Section shall not apply to or in any way limit either Party from recovering damages or other losses arising out of the other Party's violation of the confidentiality provisions under Section 7 and Section 8 or subject to the indemnity obligations under Section 9.
11. Term and Termination.
11.1 This Agreement will become effective when ERO is notified by Refund Advantage that ERO has been approved to participate in the Program and will continue until December 31, 2025 (the "Initial Term"). Thereafter, this Agreement shall automatically renew for additional periods of one (1) year each (each, a "Renewal Term," and collectively with the Initial Term, the "Term"), subject to the Parties' respective termination rights as described in this Agreement.
11.2 During the Term of this Agreement, ERO will exclusively use Refund Advantage as it relates to any products or services similar to those in nature provided by Refund Advantage hereunder.
11.3 Refund Advantage may, without liability, terminate this Agreement at any time immediately upon notice to ERO.
11.4 Refund Advantage may terminate this Agreement immediately upon the direction of a Regulatory Authority.
11.5 ERO may terminate this Agreement by giving at least thirty (30) days' prior written notice to Refund Advantage of its intent to do so; provided, however, that this Agreement shall remain in effect until all transactions initiated under the Program have been finally completed for the applicable tax-filing year. Any amounts due Refund Advantage shall remain due and payable after termination by either Party.
11.6 Upon termination of this Agreement, the Parties will return to any furnishing Party all Confidential Information and certify in writing to such furnishing Party that such receiving Party has not retained any copies of such proprietary or Confidential Information, except to the extent permitted under Section 7 and/or necessary to comply with such Party's record retention requirements under Section 4 of this Agreement or as specified in the Guidelines.
11.7 The termination of this Agreement will not terminate, affect, or impair any rights, obligations, or liabilities of any Party that accrues prior to termination or with respect to any transactions involving any Product occurring or arising prior to termination, or which, under this Agreement, continue after termination. Upon a notice of termination provided by any Party, ERO will not solicit, market, or advertise the Products. Upon termination, ERO will cease accepting Applications.
12. General Provisions.
12.1-Relationship of the Parties, In performing its responsibilities pursuant to this Agreement, ERO is an independent contractor of Refund Advantage. This Agreement does not establish or create a joint venture, partnership, agency, or employment relationship between ERO or its employees, agents, or representatives and Refund Advantage or its employees, agents or representatives. The relationship of the Parties will not be deemed to be any other relationship including, without limiting the generality of the foregoing, that of joint ventures, partners, joint employers, or principal and agent. Neither Party shall represent that its relationship with the other is anything but that of an independent contractor.
12.2-Assignments; Successors and Third Parties. Neither this Agreement nor any rights or obligations hereunder may be assigned, transferred, subcontracted, or delegated by ERO, whether by operation of law or otherwise, without the prior written consent of Refund Advantage. This Agreement and the covenants and agreements contained herein will, subject to the provisions of this Section, inure to the benefit of and be binding on the Parties hereto and their respective permitted successors and assigns.
12.3-Force Majeure, If either Party's performance of any of its obligations hereunder is prevented, restricted or interfered with by reason of fire, or other casualty or accident, strikes or labor disputes, war or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any government agency; or any act or condition whatsoever beyond such Party's reasonable control, then such Party, upon giving reasonable notice, will be excused from such performance to the extent of such prevention, restriction, or interference; and the same will not therefore constitute a default of this Agreement, provided, however, that the Parties will use reasonable efforts to avoid or remove such causes of non-performance and will continue performance hereunder whenever such causes are removed; and provided, further, that if such force majeure event continues to prevent or delay performance of such Party for more than thirty (30) consecutive days, then the other Party may terminate this Agreement, effective immediately upon written notice to such Party.
12.4-Statutory Authority of the Regulatory Authority, The Parties acknowledge that Refund Advantage is regulated by the Office of the Comptroller of the Currency, and is therefore subject to federal law, and entitled to preemption from state laws to the fullest extent permitted by Applicable Law. In any matters not so preempted (if any), this Agreement will be governed by laws of the state of South Dakota. The Parties to this Agreement agree to submit exclusively to courts of jurisdiction in the state of South Dakota for all purposes of enforcing or construing this Agreement or commencing any actions to enforce or construe this Agreement. No waiver or failure to insist upon strict compliance with any obligation, covenant, agreement or condition of the Agreement shall operate as a waiver of, or an estoppel with respect to, any subsequent or other failure.
12.5-Disputes. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement ("Dispute"), the Party raising such Dispute will notify the other promptly and no later than 60 days from the date of its discovery of the Dispute. Failure of a Party to notify the other Party of such Dispute within sixty (60) days from the date of its receipt will result in such matter being deemed undisputed and accepted by the Party attempting to raise such Dispute. The Parties will cooperate and attempt in good faith to resolve any Dispute promptly by negotiating between persons who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration and performance of the provisions or obligations of this Agreement that are the subject of the Dispute. If a Party is required to bring an action to enforce the provisions of this Agreement, then the non-prevailing Party in such action will pay the costs and expenses, including reasonable attorneys' fees and court costs, incurred by the prevailing Party. The Parties hereby knowingly, voluntarily, and intentionally waive any rights they may have to a trial by jury with respect to any Dispute.
12.6-Press Releases and Public Statements, ERO will not issue any press release (or make any other public announcement) related to this Agreement or the transactions contemplated hereby without the prior written consent of Refund Advantage. If any such disclosure is required by Applicable Law, ERO, to the extent practicable, will consult Refund Advantage prior to making the disclosure, and the Parties will use all reasonable efforts to agree upon a text for such disclosure that is satisfactory to Refund Advantage. The Parties will coordinate any and all public external communications, including any press releases related to this Agreement.
12.7-Primary Contact. Unless otherwise designated to Refund Advantage by ERO in writing, ERO's primary point of contact for Refund Advantage in connection with the Program will be the contact designated by ERO at the time of its enrollment in the Program. ERO agrees to notify Refund Advantage of any changes to ERO's primary point of contact through the Refund Advantage Customer Center.
12.8 Notices, Any notice required or permitted to be given hereunder will be in writing and delivered, by overnight delivery service, with proof of delivery, or mailed by certified or registered mail, return receipt requested, to the appropriate Party at its address stated below. If by personal service, notice will be deemed to have been given on the date of delivery or attempted delivery, if service is refused, or, if by mail, on the third business day after mailing.
If to Refund Advantage to:
Pathward, N.A., d/b/a Refund Advantage 5501 S. Broadband Lane Sioux Falls, SD 57108
Attention: General Counsel
If to ERO to:
To the address set forth in the Refund Advantage Customer Center
12.9-Entire Agreement. This Agreement, including the Disbursement Service Product Schedule and the Commercial Loan Agreements, expresses the entire understanding and agreement of the Parties concerning the subject matter hereof, and supersedes all prior agreements, understandings. arrangements, or commitments with respect to such subject matter.
12.10 Severability. To the fullest extent possible, each provision of this Agreement will be interpreted in such fashion as to be effective and valid under Applicable Law. If any provision of this Agreement is declared void or unenforceable for particular facts or circumstances, such provision will remain in full force and effect for all other facts or circumstances. If any provision of this Agreement is declared entirely void or unenforceable, such provision will be deemed severed from this Agreement, which will otherwise remain in full force and effect.
12.11-Counterparts. This Agreement may be executed in one or more counterparts (including via facsimile), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
12.12- No Waiver. No failure or delay by either Party in requiring strict compliance with any obligation or provision of this Agreement (or in the exercise of any right or remedy provided herein) and no custom or practice at variance with the requirements hereof will constitute a waiver or modification of any such obligation, requirement, right, or remedy or preclude exercise of any such right or remedy or the right to require strict compliance with any obligation set forth herein. No waiver of any particular default or any right or remedy with respect to such default will preclude, affect, or impair enforcement of any right or remedy provided herein with respect to any subsequent default. No approval or consent of either Party to a matter requiring such approval or consent will be effective unless in writing and signed by an authorized representative of the Party approving or consenting.
12.13-Remedies. Except as otherwise specifically indicated, the remedies provided herein will be cumulative and will not preclude the assertion by either Party of any rights or any other remedies against the other Party. Neither Party will be deemed to have waived, nor be estopped from asserting, any of its rights, powers or remedies under this Agreement, unless such waiver is approved in writing by the waiving Party.
12.14-Third-Party Beneficiary. Bank is an intended third-party beneficiary of ERO's agreements, duties, and obligations under this Agreement.
12.15-Survival, In addition to those provisions that, by their nature, are intended to be performed after termination or expiration of this Agreement, the following provisions shall survive the termination or expiration of this Agreement: Section 4.3 (Fraud), Section 4.8 (EFIN and PTIN), Section 4.9 (Training and Compliance), Section 4.10 (Software), Section 4.12 (Records), Section 4.16 (Review; Regulatory Authority), Section 7 (Confidentiality), Section 8 (Consumer Information), Section 9 (Indemnification), Section 10 (Limitation of Liability), and Section 12 (General Provisions).