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ARTHUR L HEROLD ALAN P. DYE
EDWARD FRANK D. COLEMAN
K. P. S.
JOHN W. HAZARD.J"HUGH
D.C. 20006 (202) 785~9500 FAX: (202) 835~243
E. CHAMBERLAIN Of COUNSEL
KENT -NOT MASTERSON ADMITTED
BROWNDC BAR. TO
HEIDI K. ABEGG DAVID M. ABRAHAMS JOHN
October 31, 2011
West Virginia Secretary of State Charitable Organizations Assistant Building 1, Suite 157-K 1900 Kanawha Blvd E Charleston, WV 25305-0770 Re: TLC, The Lukens Company - Contract Submission
Dear Sir/Madam: Enclosed please find the following information submitted on behalf of the above-named professional fund raising counsel: • Contract with National Organization for Marriage
If you have any questions please do not hesitate to contact my paralegal, Linsey M. Ford, or myself at (202) 785-9500. Please address all correspondence regarding this matter to my attention.
Enclosures: a/s /lmf
2600 snlrlln9lOil~""d. 9" floor v ....2,..2206
THIS AGREEMENT made and entered into as of this -.11::_ day ofJvV( , 2011 by and between The Lukens Company, (2800 Shirlington Rd, Suire 900, Arlington, VA 22206), and the National Organization for Marriage (2029 K Street NW, Suite 300, Washington, DC 20006), is a non-exclusive agreement for direct response marketing consultation and management, the creation and production of direct mail packages. Anything additional In terms of internet consultation will be written under separate contract. TLC, The Lukens Company, (hereinaher TLC), and the National Organization for Marriage (hereinafter NOM), agree to the following terms:
1. Direct Mail consultation services provided by TLC will include providing advice on direct response projects and aid in the selection of lists, copy strategy and concept brainstorming. creation and management of direct mail, list analysis and cost analysis. 2. To perform the tasks in section Al above, TLC will meet with NOM as necessary and will be available for unlimited telephone, mall and e-mail contact. 3. Ti..C wm charge NOM a monthly consutrauon services. retainer of 53,000 for the above
L TLC will create copy and graphic
design for direct mail packages to mall current. lapsed and prospective donors as part of NOM's direct response program. Copy and graphic design created by TLC for and on behalf of NOM will be approved by NOM in writing in advance of any production or mailing of said copy by ILL
2. TLC will charge NOM a fee of $.04 per letter mailed or $3,000 per unique package, whichever Is greater, for mailings created under section B1 above. 'Untque Package" is defined as a package for which at! components, other than envelopes, are new or substantially different copy.
3. If HC creates a package for NOM, at the request of NOM. and the package is approved but not mailed, TLC will be paid a fee of $2,SOO.
TLe production services will include supervision of art creation. bidding and tracking of printing, arranging for computer work, and coordination with the mail house. He will bid all direct mail packages to a minimum of three (3) vendors and will. at the request of NOM, provide NOM or their designated representative with all bid prices.
2. Should NOM require TLC to produce mail packages for which TLC did not create copy, or produce mail packages created and designed either Inhouse or by NOM or by a freelance writer or agency other than TLC, TLC will receive a fee of $.04 per letter mailed or $2,000, whichever is greater.
D. NOM Approval/Responsibilities
a. NOM will approve all copy, list broker orders and Mail Control budget documents, In wrIting in advance of any mailing. Plan
b. Work/Items purchased by TLC on behalf of NOM will be Invoiced to NOM in care of TlC by the supplier of said work/item. NOM agrees to be solely liable for payment of tnvolces for which NOM has given written approval. c. Invoices Will be no greater than 5% of the total cost ceiling listed on the applicable, approved Mall Control Plan unless NOM gives written approval for TLC to exceed the original approved total cost ceiling. In the event NOM refuses to consent to an increase in said cost ceiling, and HC has been operating in good faith, TLC shall not be obligated to perform any additional work on that particular mailing. d. NOM will advance postage and list costs for all mailings created or produced by TLC upon TLC's written request. e. TlC will provide NOM with results analysis in a mutually-agreed upon format and on a mutually-agreed upon schedule for all housefile and prospecting mailings based on data NOM, or the designated caging! - escrow agent sends to TLC.
E. purpose. Custody. and Use of Contributions
NOM represents that all contributions received by NOM In response to solicitations prepared and/or mailed by TLC shall be used 10 accomplish its charitable purposes (including reasonable costs of fundraislng and management), and for no other purpose.
b. NOM's charitable purposes are: to protect marriage and the faith
communities that sustain it. c. The parties agree that all response devices and reply envelopes shall be addressed to NOM or the designated caging/escrow agent at its designated address, that NOM shall have control over the use of contributions received by NOM in response [Q solicitations prepared and/or mailed by TlC. d. Under no circumstances will TLC have direct custody, possession or sole control of any contributions or Client Funds generated under this Agreement. All contributions and/or other funds generated under this Agreement shall be received by and held under the custody and control of a deslqnated, third party escrow agent.
F. List Ownership and List Brokerage Services
a. NOM will own all copy, artwork, bluelines and other materials in the
mailings in which HC creates and produces for NOM, as well as a non-exclusi ve. perpetual license to the prospect lists used and donor list created. However. should NOM elect to continue mailing a package created by TLC or copy and/or graphics [hat are substantially those created by TLC for NOM, then NOM shall pay TLC at a rate of $.04 per letter mailed. The obligations included In this Section shall survive termination of this Agreement.
b. All lists of contributors and non-contributors including all information such as names, addresses, donor history and source codes shall be
owned solely and exclusively by NOM. TLC will not use any list of NOM contributors or non-contributors nor any portion of said list acquired by NOM without the express written consent of NOM. TLC agrees that in all instances. such information to Which it has access from the NOM's database shall be confidentIal, and it will not divulge
any such information to anyone other than NOM
and its employees
without the express written consent of NOM.
c. TLC or their designated representative, Pinnacle List Company, shall
be the exclusive list broker for all mailings created or produced by TLC for or on behalf of N0!-1. C. Payment of Fees and ElSpenses a. All normal and customary expenses incurred by TLC as a result of fulfilling the obligations set forth in this agreement shall be invoiced by TLC directly to NOM, and NOM agrees to be liable for payment of the direct cost of these expenses. Such expenses shall include, but not be limited to, courier and overnight delivery costs. postage, and travel, when required and approved In writing. b. Payment of all mailing. copy creations, and other fees incurred under this agreement are due thirty (30) days after the mail date as Indicated on the offtcial postal forms or mall receipts. c. Overdue amounts shall be subject to a late payment charge (after 30 days) of two percent (2~~ per month or the maximum lawful rate, whichever is less. H. c.ag.iJlg and Escrow Services a. For any mailings conducted during the term of thiS Agreement. NOM agrees to enter into and be bound by contract with a bonded. third party caging company (TBD). Afl returns generated as a result of mailings created or produced by TLC for and on behalf of NOM will be caged, opened, sorted by mali code and moneys deposited by said caging company. b. All moneys generated as a result of mailings created or produced by TLC for or on behalf of NOM shall be deposited by the aforementioned caging company into an Escrow Account. Said Escrow Account shall be maintained by a bonded, third party Escrow Agent. TLC and NOM agree to enter into and be bound by contract with said Escrow Agent and TlC and NOM further agree that during the term of this Agreement oranv extension thereof. any and all moneys or contributions generated as a result of mailings created or producedbv
TLC shall be released by the Escrow Agent only with the express written and joint approval of both TLC and NOM or as set forth herein.
All moneys generated as a result of mailings created or produced by TLC on behalf of NOM shall be used first to pay vendor Invoices, including those of TLC and Pinnacle List Company, associated with mailings created or produced under the terms of this agreement prior to NOM receiving any funds. Once all vendor invoices have been paid, NOM shall be entitled to be paid any net revenues from any mailings created or produced by TLC on behalf of NOM.
I. Confidentiality During the term of this Agreement and for three (3) years after termination hereof, each party agrees not to disclose any Confidential Information (as hereinafter defined) obtained from the other party to any other person or entity, except as required by law. A$ used herein, "Confidential Information" means information that is identified (orally or in writing) as confidential or of such a nature that a reasonable person would understand such Information to be confidential, including, without limitation, any strategies and tactlcs, and marketing or bustnas s plans. Confidential Information shall not include information (i) generally k.nown to the pubtic, (ii) already known, through legal means, to the party receiving the Information, (iii) developed by the party receiving the lnforrnatton independent of any Confidential Information of the other party, or (Iv) legally obtained from a third party. In any event, however, NOM shall not disclose the fInancial terms of this Agreement. including TlC's fees, without TlC's prior written consent or as may be required by law (including, but not limited to, filing copies of this Agreement with regulatory agencies to the extent required by applicable state law or local ordinance). TlC will not sell, give, or make available any donor address (whether email or physical) acquired for NOM to any third party without the prior written consent of NOM. except if such address was acquired by TLC from another source.
This agreement and all provlstons herein and any legal proceeding which may arise in relation to this agreement shall be governed by the laws of the Commonwealth of Virginia and both parties consent to jurisdiction thereIn.
K. il.r.r.n.a.nd..Ierminatjoo 5
1. This Agreemen sh II be effective as of 1-11'2. 2b1l and shall continue In effect until ~ II 1. or if terminate by either party given ninety (90) days written otlce to the other party. a. For clients registered or required to be registered only applying to services provided In New York: i. in New York, and
NOM's right to terminate this Agreement. NOM has the right to terminate this Agreement Without cause and without cost, penalty. or liability if NOM notifies TLC in writing as provided below. Period during which Agreement may be terminated. NOM may terminate this Agreement at any time up to and including the lS,h day after this Agreement is filed by the TLC with the New York State Office of Charities Registration. Procedure for terminating this Agreement. NOM may terminate this Agreement by giving TLC written notice of termination. which may be In the form of a letter Indicating that NOM does not intend to be bound by thiS Agreement. The notice of termination may be hand-delivered or mailed to TLC at its business address. NOM must also mail a duplicate copy of the notice of termination to the State of New York, Office if the Attorney General, Charities Bureau, The Capitol. Albany, NY 12224.
iv. When the termination Is effective. If the notice of termination is hand-delivered. the termination is effective when It is delivered to AGENCY. If the notice of termination is mailed, the termination Is effective when the nonce is deposited, properly addressed and postage pre-paid. in a mailbox. b. For clients soliciting in California provided by TLC in California. i. and applying only to services
NOM has the right to cancel this Agreement without cost, penalty. or liability for a period of 10 years after the date on which the second party executes this Agreement; NOM can exercise Its right to cancel this Agreement pursuant to subsection (a) by serving a written notice of cancellation on TLC. and sending a copy to the California Attorney General's Registry of Charitable Trusts;
05: 02 PM
service of the written
(ii) she be by certified mail, return receipt requested;
iv, Cancellation shall be deemed effective upon the expiration of 5 days from the date the written notice described in paragraph (b)(ii) was mailed; Following the IO-day period described In paragraph (b)(i), NOM may terminate this Agreement by giving 90 days' written notice In the manner set forth In paragraphs (2) and (3), which shall be effective as provided in paragraph (b)(iv). and in the event of such termination. NOM shall be liable to pay for all services rendered by TLC through the effective date of termination. as otherwise provided in this Agreement.
In the event that a mailing for which NOM has given approval is canceled by NOM, NOM shall be liable for all costs incurred up to the point of cancellation, Including any fees incurred under sections above. 2. Upon the expiration or termination of thts Agreement by any party for any reason, NOM shall pay TLC any and all accrued and unpaid fees and
expenses due and payable to TLC as of the date of expiration or termination, and NOM shall remain liable after the date of expiration or termination for the Transaction Fees and third party Processtnq Fees for any Transaction occurring after the date of expiration or termination, as set forth in Section G.
NOM and TLC acknowledge that, on account of the activities contemplated under the Agreement. or other activities, each may be subject to registration, reporting, or other requirements in various states. the Commonwealth of Virginia, or other jurisdictions. Each party will be responsible for its own compliance with such requirements, and both parties agree to cooperate with each other by providing appropriate, helpful, and necessary Information to facilitate compliance. NOM acknowledges that TLC shall Incur no liability under this Agreement if It ceases to provide services otherwise required under this A9reement with respect to any state, the Commonwealth of Virginia. or other jurisdiction In which NOM Is not in compliance with applicable state laws governing charitable sollcitatlons. For purposes of the preceding sentence, TlC may rely on Information from its legal counselor the regulatory agency responslble for enforcing such laws.
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In the event of a dispute, the parties shall first attempt to resolve the dispute between themselves in good faith and then, If unsuccessful, by commercial mediation. At the request of either party, the other party shalf make itself available for mediation Within thirty (30) days of the request, using the mediation rules of the judrctal Arbitration and Mediation Service ('JAMS"), If the dispute cannot be resolved In this manner, the parties expressly agree that jurisdiction and venue for actions under or pursuant to this Agreement shall be solely in any state court in the Commonwealth of Virginia. Nothing contained herein shall prevent either party from exercl sing its right to injunctive relief in any court of law having proper jurisdiction in the Commonwealth of Virginia, The undersigned do hereby personally warrant and affirm that they are authorized to execute and bind the parties hereto: NOM, National Organization for Marriage By:
Brian S, Rrown President
TLC, The Lukens 06mpany ,/
<(:/// /' ,~ ,//< --<•
• Walte'r G. Lukens. III President
Executive Vice President 8
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