This Advancement Marketing Services Program Supplement (“Supplement“), applicable to any Order Form by and between Advancement Services, LLC, a wholly-owned subsidiary of EAB Global, Inc. (“EAB“) and Organization, supplements and amends the Master Agreement as set forth herein, Capitalized terms not otherwise defined herein will have the meanings given to them in the Master Agreement.
(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.
To the extent not prohibited by law, 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 27(a).
b. Review of Marketing Materials
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 communication (e.g., emails and/or direct mail) prior to distribution of such communication. 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 marketing communications or campaign details, Organization will review again according to the above procedure. Organization shall review all marketing materials 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: (a) the design of any marketing program created as part of the Services and its compliance with applicable laws, rule and regulations; and (b) the content of any mailings to a prospective student or his/her families for completeness and accuracy.
c. Custody of Funds
EAB will not at any time solicit funds, assets, or property for charitable purposes, receive or control funds, assets, or property solicited for charitable purposes, or employ, procure, or engage any compensated person to solicit, receive, or control funds, assets or property for charitable purposes. EAB will not have custody or control of contributions from donors at any time.
d. Compliance with Laws
The following terms are required to be stated in the Agreement for the purpose of state registration of nonprofit agencies and their fundraising counsel:
1. The number of persons to be involved in providing services to Organization will not exceed 25.
2. For the purposes of the State of California only, the following shall apply:
The Agreement will commence and end within the State of California on the dates that are as set forth in the Order Form. Services will commence with respect to solicitation of contributions on the date set forth in the Order Form. Organization has the right to cancel the Agreement without cost, penalty, or liability for a period of ten (10) days following the date on which the Agreement is executed. Organization may cancel the Agreement by servicing a written notice of cancellation within thirty (30) days of execution. If mailed, service shall be by certified mail sent to EAB Global, Inc., 2445 M Street, NW, Washington, DC 20037, attention General Counsel, return receipt requested, and cancellation shall be deemed effective upon the expiration of five (5) calendar days from the date of mailing. Following the 10-day cancellation period, Organization may terminate the Agreement by giving thirty (30) days written notice. If mailed, service of the notice shall be by certified mail, return receipt requested, and shall be deemed effective upon the expiration of five (5) calendar days from the date of mailing. In the event of termination after the 10-day cancellation period, Organization shall be liable for services provided by EAB to the effective date of termination.
3. For the purposes of the State of Maryland only, the following shall apply:
Organization shall forward EAB, prior to commencement of services, a copy of Organization’s agreement with its caging service for filing with the state. Organization shall have the right to select or substitute vendors of its own choosing for mailings into the state.
4. For the purposes of the State of New York only, and only with respect to Services provided in New York State, the Agreement shall be modified to add the following section:
The New York State identification number for EAB and for the Organization are specified in the Services Agreement. Contract will commence on the date specified in the Services Agreement within the State of New York.
Contract will terminate on the date specified in the Services Agreement unless extended within the State of New York.
Organization’s right to cancel this Agreement. It is understood by both Parties that Organization has the right under New York State law to cancel this contract and that Organization does not have to give any reason for the cancellation. By law, the Parties to this contract cannot waive or modify this right by any pre-existing agreement or by any subsequent agreement between the Parties. Therefore, Organization may cancel this contract without cost, penalty, or liability if Organization notifies EAB in writing as provided below.
Period under which Agreement may be canceled. If EAB is registered with the New York State Office of the Attorney General Charities Bureau, Organization may cancel this contract at any time up to and including the fifteenth day after this contract was filed by EAB with the New York State Office of the Attorney General Charities Bureau. If, however, EAB is not registered with the New York State Office of the Attorney General Charities Bureau at the time this contract is signed, Organization may cancel at any time after it is signed.
Procedure for canceling this Agreement. Organization may cancel this contract by giving EAB written notice of cancellation. This notice can be in the form of a letter indicating that Organization does not intend to be bound by the contract. The notice of cancellation may be hand-delivered or mailed to the President of EAB. If mailed, it must be sent to the following address: 2445 M Street, NW, Washington, DC 20037.
Organization must mail a duplicate copy of the written notice of cancellation to the Office of the Attorney General at the address listed below:
Office of the Attorney General
Albany, New York 12224
When cancellation is effective. If the notice of cancellation is hand-delivered, the cancellation is effective as soon as it is delivered to EAB. If the notice of cancellation is mailed, the cancellation is effective as soon as the notice is deposited, properly addressed and postage pre-paid, in a mailbox.
5. For the purposes of the State of New Jersey only, the following shall apply:
This Agreement between EAB and Organization is not a percentage-based agreement, and the following language is provided only for purposes of complying with the contract disclosure requirements of State of New Jersey. EAB is to be paid as set forth in this Agreement and said compensation provisions shall be controlling. For purposes of providing language to comply with the New Jersey Charitable Fundraising Rules, the following shall apply:
EAB shall receive one percent (1%) of the gross revenue from the campaign. The amount going to EAB is an estimated percentage based upon previous experience of similar campaigns conducted by EAB. This shall not affect or alter compensation provisions as provided in this Agreement.
6. For the purpose of the State of Mississippi only, the following shall apply:
Organization’s solicitation activity under this Agreement is to commence on the date specified in the Order Form within the State of Mississippi or ten working days after the Agreement is received by the Office of the Secretary of State.
Solicitation activity and the Agreement will terminate on the date specified in the Order Form unless extended, within the State of Mississippi.
7. For the purpose of the Commonwealth of Pennsylvania only, the following shall apply:
Services under the terms of the Agreement with respect to solicitation of contributions in the Commonwealth will commence on the date specified in the Order Form or ten (10) working days after the Agreement is received by the Department of State, Bureau of Charitable Organizations and/or is approved by the Department of State Bureau of Charitable Organizations.
Services and the Agreement will terminate on the date specified in the Order Form unless extended within the Commonwealth of Pennsylvania
8. For the purposes of South Carolina, the following shall apply:
The South Carolina Registration Number for EAB is as specified in the Order Form. The South Carolina Registration Number for Organization is as specified in the Order Form.
In those states requiring EAB to file a campaign financial report, Organization agrees to disclose fundraising data as necessary to complete such reports prior to the due date of these reports.
If either Party to the Agreement is not compliant with state registration requirements, the Agreement may be terminated immediately without penalty.
EAB reserves the right to modify or revise this Supplement at any time and shall post such modified or revised terms at http://eab.com/terms/AMS.
Sections (a) through (d) of this Supplement, and any provision of the Agreement that by its nature should survive, shall survive the expiration or termination of the Agreement.