These Terms & Conditions, together with the Service Agreement to which these Terms & Conditions are attached (including any attachments or subsequent amendments thereto, the "Service Agreement"), constitute a binding agreement (the "Agreement") between the entity named in the Service Agreement (the "Client" or "you") and EAB Global, Inc. ("EAB" or "we"), effective as of the date set forth on the Service Agreement ("Effective Date") regarding the services set forth on such Service Agreement (the "Services"). In the event of a conflict between any term set forth in the Service Agreement and any term or condition set forth in these Terms & Conditions, the term set forth in the Service Agreement shall control.
1.1. Fees. Fees for Services ("Fees") are set forth in the Service Agreement. Client will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on EAB's income), and any related penalties and interest for the grant of the Services hereunder. If Client is tax exempt and provide EAB with a valid tax exempt certificate issued by the relevant taxing jurisdiction, EAB will not charge Client any taxes that Client is not obligated to pay. Client will make all required payments to EAB free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to EAB will be Client's sole responsibility, and Client will, upon EAB's request, provide FAR with official receipts issued by appropriate taxing authorities, or such other evidence as EAB may reasonably request, to establish that such taxes have been paid.
1.2. Payment. Fees are due in full within thirty (30) days of invoice date. EAB's obligation to furnish Services (or to continue to furnish Services) is conditioned on Client's timely payment of invoiced amounts. Any past due balance will be subject to interest at the lower of the monthly rate of one percent (1%) per month or the highest rate permitted by law. Client will be responsible for all costs and expenses incurred by EAB in collecting any Fees or other sums owed by Client. In the event any invoice remains unpaid for thirty (30) days or more, EAB reserves the right to terminate this Agreement or suspend the provision of any Services until the account is brought current.
2.1. EAB Responsibilities. EAB agrees to furnish the Services described in the Service Agreement. Any additional Services shall be set forth in additional Service Agreement(s) signed by both Partles.
2.2. Client Responsibilities. Client shall provide EAB with all information and data by the specified dates or milestones reasonably required by EAB to perform services and furnish Services to Client. Specifically, Client will be solely responsible for: (a) the accuracy and completeness of the Client Materials (as defined below); (b) the design of any marketing program created as part of the Services and its compliance with applicable laws, rules and regulations; and (c) the content of any mailings to a prospective student or his/her families for completeness, accuracy and compliance with applicable laws, rules and regulations.
2.3. Review of Marketing Materials. EAB shall send to Client for its approval a proof of the final communication template for each mailing (e.g., emails and/or direct mail). If Client discovers any problems after review, Client will immediately notify EAB. If there are any subsequent changes in the marketing communications or campaign details, Client will review again according to the above procedure. Client shall review all marketing materials created by EAB for Client 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 FTC guidelines and other consumer marketing laws and regulations. Client acknowledges that delays in notification of approval in or changes to EAB may result in Service delays.
2.4. Financial Aid Processing. Client agrees to carry out, or cause to be carried out, the processing and awarding of all aspects of the financial aid process in compliance with federal regulations. Client will retain complete control of all aspects of awarding financial aid, including setting of budgets and disbursement schedules. It is understood and agreed that this Agreement does not render EAB as a "Third Party Servicer" as that term is defined at 34 C.F.R. § 668.2 and EAB is not subject to the requirements of 34 C.F.R. § 668.23 or 34. C.F.R. § 668.25. Client shall not report or characterize EAB to the U.S. Department of Education or any regulatory agency as such, and EAB shall not undertake any work pursuant to this Agreement inconsistent with this section.
3.1. Term. This Agreement shall be in effect as of the Effective Date and, unless terminated as set forth herein, will continue until all Services have been furnished pursuant to the Service Agreement (the "Term").
3.2. Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter has failed to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
3.3. Termination for Convenience. Client may terminate this Agreement for any reason in its sole discretion upon 30 days written notice. The parties agree that if Client terminates this Agreement pursuant to this Section 3.3, no prepaid fees will be refunded.
3.4. Upon Termination. Upon expiration or termination of this Agreement, (a) Client will pay all outstanding invoices or amounts owing to EAB and (b) the following Sections will survive: 3.4, 4, 5, 6, 7 and 8.
4.1. Client Materials. As between the Parties, Client will own all data provided to EAB under a Service Agreement, including any admissions and financial aid data Client provides to EAB ("Client Data"). Client will also own all right, title and interest in and to all other content and materials, including any copyrights, trademarks, service marks, data, and other intellectual property Client may provide to EAB in order to allow EAB to provide the Services to Client under the terms of this Agreement and the applicable Service Agreement ("Client Materials"). Client grants to EAB a worldwide, non-exclusive, right and license to store, reproduce, modify, perform, display, distribute and utilize the Client Data and Client Materials: (a) to provide the Services; (b) for internal tracking, reliability testing and research purposes; and (c) in a manner that does not identify Client for any lawful purpose in EAB's discretion. The rights granted in the foregoing clauses (b) and (c) shall be perpetual and shall survive any termination or expiration of this Agreement. Notwithstanding the foregoing, upon written request following termination of the Agreement, EAB shall return or destroy all Client Data and Client Materials within thirty (30) days.
4.2. Ownership of Services. As between the Parties, EAB owns all right, title and interest in and to all Services (excluding any Client Data and Client Materials therein), as well as all products and services, including all hardware, systems, software, artwork, copy, concepts, techniques, and other intellectual property EAB uses to provide services and furnish Services hereunder, and any derivatives thereto. Client is authorized to use the Services only to the extent expressly authorized in these Terms & Conditions during the Term of this Agreement. Upon termination of this Agreement, Client's rights to and its use of the applicable Services shall promptly cease. To the extent EAB provides you Deliverables (as defined in the Services Agreement) as part of its Financial Aid Optimization services pursuant to the Service Agreement, EAB hereby grants Client the right to store, reproduce, perform, display and utilize the Deliverables for Client's internal business purposes; however, you may not (a) provide the Deliverables to any third party, or (b) modify, alter, reverse engineer, decompile, or disassemble the Deliverables to obtain or perceive any source code or algorithms.
4.3. Additional Programs. To the extent Client presently participates in more than one membership program or service offering or enrolls in or purchases additional membership programs or service offerings of EAB or its affiliates in the future ("Programs"), the data that Client provides to EAB in connection with a particular Program may be combined with data provided by Client in connection with other Programs or otherwise used by EAB and its affiliates in connection with other Programs to provide services to Client pursuant to the Agreement and other membership or services agreements between Client and EAB or its affiliates.
4.4. No Other Licenses. Except for the license and other rights granted to EAB under this Agreement, EAB claims no ownership or control over, and
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