This Agency Services Program Supplement, (“Supplement“), applicable to any Agency Services program, supplements and amends the Master Agreement (the “Agreement”) as set forth herein. Capitalized terms not otherwise defined herein will have the meanings given to them in the Master Agreement.
a. EAB Ownership of Certain Materials
The definition of Materials as set forth in the Master Agreement shall also include (i) the components displayed by EAB on behalf of Organization (except the O-P Data therein) on any Platform (as defined below), including without limitation, taxonomy, graphics, icons, logos, buttons and aggregated data compilations; (ii) any photographs, 360 degree panoramas, videos and other media specific to Organization edited by EAB whether or not such original media was created by EAB or supplied by Organization (“Edited Media”); (iii) log files, event data, GPS data, cookies, clear gifs, scripts and other technologies used by EAB in the course of providing the Services and any related data collected, (iv) any and all software used to provide virtual experiences on any Platform, (v) any and all Cappex Inquiries and Cappex Candidates, and (vi) any trademarks, logos and service marks of EAB displayed on any Platform. Organization may not modify, decipher, decompile, disassemble, reverse engineer distribute, transmit, republish, display or perform any of the Materials (i) except as expressly authorized in this Agreement, or (ii) without EAB’s prior written consent. EAB may use any ideas, concepts, know-how or techniques regarding improvements or additions to the Services provided by Organization. For purposes of this Supplement, “Platform” shall mean any site to which the Services are posted, including (i) www.eab.com; (ii) www.youvisit.com; (iii) www.cappex.com or www.collegegreenlight.com; (iv) Organization’s website, mobile applications and/or online services; (v) any website or mobile applications hosted by EAB on behalf of Organization; and (vi) any EAB partner or affiliate website. Without prior approval of EAB, Organization agrees that it will not publish or redistribute in any form any portion of EAB created photographs, 360 degree panoramas, videos, and any other media, to the extent such media contains the image or audio of any EAB employee or third party contractor or any actor hired in connection with any virtual experience, except with respect to an actor as may be contained in a completed and approved virtual experience.
For the avoidance of doubt, Organization owns any unedited source content that is delivered to Organization by EAB and is not edited by EAB in connection with the Services.
(a) Subject to subsection (b), and to the extent that EAB receives from Organization or otherwise has access to, on behalf of Organization, personally identifiable information from a student education record (collectively, Student Records), EAB agrees to maintain such Student Records in accordance with the requirements of the Family Educational Rights and Privacy Act, 20 USC § 1232g, and its implementing regulations, 34 CFR pt. 99, as each may be amended from time to time (collectively FERPA). (b) Organization agrees (i) that EAB is performing for the Organization an institutional service or function for which the Organization would otherwise use its employees, (ii) that the Organization will retain control over all education records provided to EAB, and (iii) that the Organization is responsible for complying with FERPA, including with respect to the annual notification requirement (34 C.F.R. § 99.7) and with respect to providing Student Records to EAB.
Organization will indemnify, defend and hold harmless EAB and its Personnel from any and all third party claims, liabilities, and expenses arising from Organization’s breach of its obligations under this Section (b).
c. Compliance with Laws
EAB represents, warrants, and covenants that the compensation of its employees, subcontractors or other persons who perform any student recruitment activities for Organization (if any) under the Agreement or any Order Form is and will be in material compliance with Section 487(a)(20) of the HEA (20 U.S.C. § 1094(a)(20)), or any successor provision, and the regulations promulgated thereunder by the U.S. Department of Education (currently located at 34 C.F.R. § 668.14(b)(22)), (the “Incentive Compensation Rules”), to the extent applicable. In the event the Incentive Compensation Rules change during the term of the Agreement or the Department of Education revises or issues official guidance concerning such regulations such that, in either case, the calculation and payment of fees as structured under the Agreement is no longer feasible, the parties will promptly negotiate in good faith an amendment to the Agreement to comply with such change and to preserve, as nearly as practicable, the payment provisions and other economic benefits and terms of the Agreement. Organization and EAB agree that Organization is solely responsible for making final decisions about enrollments and enrollment targets for all campaigns.
To the extent the Services include marketing activities, EAB shall send to Organization for its review and approval a proof of the final template for each deliverable (e.g., website design, tour) prior to finalization of such deliverable. If Organization discovers any problems after issuing its approval, Organization will immediately notify EAB and instruct EAB on all necessary corrections. If there are any subsequent changes in the deliverable, Organization will review again according to the above procedure. Organization shall review all marketing deliverables created by EAB for Organization to ensure that all such marketing materials are accurate, complete and in compliance with all applicable laws, rules and regulations, including, but not limited to, adherence with the U.S. Department of Education’s misrepresentation regulations provided at 34 C.F.R. 668, Subpart F, any applicable Federal Trade Commission laws, regulations, or guidelines and all other consumer marketing laws and regulations. Organization will be solely responsible for the design of any marketing program created as part of the Services and its compliance with applicable laws, rules and regulations.
d. General Posting and Acceptable Use Terms
Organization represents and warrants that it will comply with the General Posting and Acceptable Use Terms available at http://eab.com/terms/agency_acceptableuse.
e. Indemnification; Liability
Organization agrees to indemnify and hold harmless EAB and its affiliates from and against any third party claim to the extent arising from a breach of the General Posting and Acceptable Use Terms and Conditions.
To the extent that the Services include the Panoramic Accelerated Capture Kit that enables Organization to self-capture 360 video and 360 photos (the “PACK”), Organization is solely responsible for any Damages (as defined below) to the PACK. “Damages” means losses, damages, liabilities, claims, costs, or expenses of any kind.
f. Video Player
g. EAB Capture of Media
To the extent that Organization requests that EAB capture or create any media including any photographs, 360 degree panoramas, videos or audio, Organization agrees that EAB has Organization’s permission to enter Organization’s premises and that Organization will be responsible for obtaining any permissions that may be required of any individuals appearing in such media and for clearance of any other intellectual property rights of a third party in such media. EAB and Organization shall coordinate in advance the dates at which EAB representatives will be on Organization’s property to capture or create any such media. EAB will not make any virtual experience specific to Organization publicly available without prior consent of Organization.
h. Improvements to Platform
EAB may update and enhance the Platform at any time and Organization agrees that, so long as such changes are not contrary to, or less than, any of the rights that it is entitled to receive under the products or services purchased as set forth in any Order Form, EAB may make any such changes to the Platform in its sole discretion.
EAB reserves the right to modify or revise these Terms at any time, and shall post such modified or revised Terms at http://eab.com/terms/agency.
Sections (b) through (h) of this Supplement, and any provision of the Agreement that by its nature should survive, shall survive the expiration or termination of the Agreement.
Version 7 (Updated 9/21/2020)