4-RFP 2026-05 Marketing Draft Contract - copy.pdf

MARKETING, DIGITAL MEDIA & ENROLLMENT SUPPORT

THIS AGREEMENT is made and entered into by and between the New Mexico Military Institute, 101 West College Blvd., Roswell, NM 88201, hereinafter referred to as “NMMI,” and ____________________ a STATE ENTITY TYPE, with principal offices at ADDRESS, hereinafter referred to as the “Contractor,” and is effective on the date in which NMMI signs the contract.

1. DEFINITIONS

1.1 "Agreement" means this Professional Services Agreement, including all Attachments and incorporated documents.

1.2 "Services" means the marketing, digital media, enrollment support, and related consulting services described in Attachment A (Scope of Work).

1.3 "Deliverables" means all work product, creative assets, reports, content calendars, media plans, templates, and other items to be delivered under this Agreement.

1.4 "Confidential Information" means information designated as confidential or that reasonably should be understood to be confidential, including Student Data, Education Records, personally identifiable information (PII), proprietary business information, and non-public technical information.

1.5 "Student Data" means all data relating to prospective, current, or former cadets or students of NMMI, including Education Records as defined by FERPA (20 U.S.C. § 1232g; 34 CFR Part 99).

2. TERM; RENEWALS

2.1 Initial Term. The term of this Agreement shall commence on the Effective Date and continue through [June 30, 2029], unless earlier terminated as provided herein.

2.2 Renewals. NMMI may, at its sole option, extend this Agreement for up to three (3) additional one-year periods, subject to available appropriations and satisfactory performance.

3. SCOPE OF SERVICES; INCORPORATION

3.1 Scope. Contractor shall perform the Services and provide the Deliverables in accordance with Attachment A (Scope of Work), which incorporates NMMI RFP No. 2026-05 and Contractor’s response, to the extent not inconsistent with the RFP.

3.2 Priority of Documents. In the event of conflict, the following order of precedence applies: (a) this Agreement; (b) Attachment A (NMMI RFP) and any addenda; (c) Attachment C (Cost/Rate Schedule); (d) Contractor’s Proposal; (e) other Attachments.

4. COMPENSATION; INVOICING; TAXES

4.1 Compensation. NMMI shall pay Contractor the fees set forth in Attachment C (Cost/Rate Schedule). Media spend shall be treated as pass-through and is excluded from evaluated service fees; Contractor shall not mark up media costs.

4.2 Invoicing. Contractor shall invoice monthly in arrears for Services rendered and approved by NMMI. Each invoice must reference Contract No., dates of service, workstream, and Deliverables.

Invoices shall be email to purchasing@nmmi.edu.

NEW MEXICO MILITARY INSTITUTE

mailto:purchasing@nmmi.edu

4.3 No Right to Reimbursement for Pre-Contract Costs. Contractor shall bear all costs incurred prior to full execution of this Agreement.

4.4 Taxes. Contractor is responsible for applicable taxes, if any, consistent with New Mexico law.

5. KEY PERSONNEL; SUBCONTRACTORS

5.1 Key Personnel. Contractor shall assign the key personnel identified in its Proposal and shall not reassign them without NMMI’s written consent, which shall not be unreasonably withheld.

5.2 Subcontractors. Contractor shall not subcontract any material portion of the Services without prior written consent of NMMI. Contractor remains responsible for subcontractor performance and shall flow down all applicable obligations, including data privacy and security requirements.

6. PERFORMANCE STANDARDS; ACCEPTANCE

6.1 Standards. Contractor shall perform the Services in a timely, professional, and workmanlike manner consistent with industry best practices for higher-education enrollment marketing.

6.2 Acceptance. Deliverables are subject to review and written acceptance by NMMI. If a Deliverable does not conform to requirements, NMMI may reject it and Contractor shall promptly correct without additional cost.

7. DATA PRIVACY, SECURITY & FERPA

7.1 FERPA Compliance. To the extent Contractor obtains access to Education Records, Contractor is deemed a "School Official" with a legitimate educational interest and shall comply with FERPA (20 U.S.C. § 1232g; 34 CFR Part 99). Contractor shall not disclose Education Records or Student PII to any third party except as permitted by FERPA and authorized in writing by NMMI.

7.2 Student Data Restrictions. Unless expressly authorized by NMMI in writing, Contractor shall not: (a) collect Student PII directly from minors; (b) use Student Data for advertising, marketing, or profiling; (c) sell, rent, or otherwise monetize Student Data; (d) combine Student Data with data from other sources, except as necessary to provide the Services and authorized by NMMI.

7.3 COPPA and CAN-SPAM. For any activities implicating data from children under 13, Contractor shall comply with COPPA (15 U.S.C. § 6501 et seq.). All email communications must comply with CAN-SPAM (15 U.S.C. § 7701 et seq.) and applicable state laws.

7.4 Security Controls. Contractor shall implement and maintain administrative, physical, and technical safeguards appropriate to the nature of the data processed, including: (a) least-privilege access; (b) unique IDs and MFA for administrative access; (c) encryption in transit (TLS 1.2+) and at rest; (d) secure software and systems maintenance; (e) patching and malware protection; (f) employee background checks consistent with law; (g) annual security awareness training.

7.5 Incident Response. Contractor shall notify NMMI’s Procurement Manager and designated IT Security contact of any actual or suspected security incident impacting NMMI data within 72 hours of discovery, providing details, containment, impact assessment, and remediation steps. Contractor shall cooperate fully with NMMI and applicable authorities.

7.6 Data Location and Transfer. Without NMMI’s written approval, Contractor shall store and process Student Data only within the United States and shall not transfer Student Data internationally.

7.7 Subprocessor Controls. Contractor shall not engage subprocessors that handle Student Data without NMMI’s prior written consent and shall ensure equivalent privacy and security obligations via written agreement.

7.8 Data Return/Deletion. Upon request or termination, Contractor shall return to NMMI all Student Data and Confidential Information and securely delete all copies within 30 days, certifying destruction in writing, except as retention is required by law.

7.9 Audit Rights. With reasonable notice, NMMI may request evidence of Contractor’s security and privacy controls (e.g., SOC 2 report, policies, penetration test summaries). Contractor shall promptly address material deficiencies identified by NMMI.

8. CONFIDENTIALITY

8.1 Obligations. Each party shall protect the other party’s Confidential Information with at least the same degree of care it uses to protect its own, but not less than reasonable care. Confidentiality obligations survive for five (5) years, except that obligations regarding Student Data and Education Records survive indefinitely as required by law.

9. INTELLECTUAL PROPERTY; LICENSES

9.1 Work Product. All Deliverables and work product first created for NMMI under this Agreement (excluding Contractor Background IP) shall be "works made for hire" to the extent allowed by law, and otherwise assigned to NMMI, and shall be owned exclusively by NMMI upon payment.

9.2 Background IP. Contractor retains ownership of its pre-existing tools, templates, and methodologies ("Background IP"). Contractor grants NMMI a perpetual, worldwide, royalty-free, non-exclusive license to use, copy, and modify any Background IP embedded in the Deliverables solely for NMMI’s internal purposes.

9.3 Third-Party Materials. Contractor shall identify any third-party materials and ensure NMMI receives the necessary rights for intended use.

10. PUBLICITY; BRAND; PLATFORM TERMS

10.1 Publicity. Contractor shall not issue press releases or use NMMI’s name, marks, or logos without prior written approval.

10.2 Brand Standards. Contractor shall comply with NMMI’s brand guidelines provided from time to time.

10.3 Platform Terms. Contractor shall comply with applicable platform terms (e.g., Google, Meta, YouTube, LinkedIn, TikTok) and shall not take actions that risk account suspension.

11. INSURANCE

Contractor shall maintain insurance as set forth in Attachment B (Insurance Requirements) and shall provide certificates of insurance prior to performance.

12. INDEMNIFICATION; LIMITATION OF LIABILITY

12.1 Indemnification. To the extent permitted by New Mexico law, Contractor shall indemnify and hold harmless NMMI, its officers, trustees, and employees from third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of: (a) Contractor’s negligent or willful acts or omissions; (b) infringement or misappropriation by the Deliverables (excluding NMMI-provided materials); or (c) Contractor’s violation of law or this Agreement. Nothing herein shall be construed as a waiver of NMMI’s sovereign immunity.

12.2 Limitation of Liability. Except for (i) breach of confidentiality, (ii) data security obligations, or (iii) infringement indemnity, neither party shall be liable for indirect, incidental, special, or consequential damages. Contractor’s aggregate liability shall not exceed two (2) times the fees paid or payable in the 12 months preceding the claim, to the extent permitted by New Mexico law.

13. TERMINATION

13.1 For Convenience. NMMI may terminate this Agreement in whole or in part upon thirty (30) days’ written notice.

13.2 For Cause. Either party may terminate for material breach not cured within fifteen (15) days of written notice.

13.3 Insufficient Appropriation. NMMI may terminate without penalty if sufficient appropriations or authorizations do not exist.

14. RECORDS; AUDIT; RETENTION

14.1 Records. Contractor shall maintain complete and accurate records related to performance and charges for at least six (6) years after final payment or longer as required by law.

14.2 Audit. NMMI or its designees may audit such records upon reasonable notice during normal business hours.

15. COMPLIANCE WITH LAWS; NON-DISCRIMINATION

Contractor shall comply with all applicable federal, state, and local laws, including but not limited to FERPA, COPPA, CAN-SPAM, ADA/Section 508 accessibility requirements for digital content, and New Mexico procurement and employment laws. Contractor shall not discriminate on the basis of race, color, national origin, sex, sexual orientation, gender identity, religion, disability, age, or veteran status.

16. NEW MEXICO PROVISIONS

16.1 Governing Law; Venue. This Agreement shall be governed by the laws of the State of New Mexico, without regard to its conflicts rules. Venue lies exclusively in state courts located in Chaves County, New Mexico.

16.2 Campaign Contribution Disclosure. Contractor shall provide the campaign contribution disclosure form as required by NMSA 1978, § 13-1-191.1, as applicable.

16.3 E-Verify. Contractor shall comply with applicable employment verification requirements.

17. MISCELLANEOUS

17.1 Independent Contractor. Contractor is an independent contractor and not an employee or agent of NMMI.

17.2 Assignment. Contractor shall not assign this Agreement without NMMI’s prior written consent.

17.3 Notices. Notices shall be in writing and delivered to the addresses set forth below or as updated by notice.

17.4 Entire Agreement; Amendments. This Agreement constitutes the entire agreement and may be amended only by a written instrument signed by both parties.

17.5 Order of Precedence. As set forth in Section 3.2.

18. ATTACHMENTS (INCORPORATED)

Attachment A – Scope of Work (NMMI RFP No. 2026-05 and Contractor Proposal Excerpts) Attachment B – Insurance Requirements

Attachment C – Cost/Rate Schedule

SIGNATURES

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

NEW MEXICO MILITARY INSTITUTE [CONTRACTOR LEGAL NAME]

By: By:

Name: Name:

Title: Title:

Date: Date:

ATTACHMENT B

INSURANCE REQUIREMENTS

The selected Offeror ("Contractor") shall provide proof of insurance coverage prior to contract execution and maintain such coverage throughout the term of the agreement and any renewals. All policies shall be issued by companies authorized to do business in the State of New Mexico.

1. Commercial General Liability (CGL) Minimum Limits: $1,000,000 per occurrence; $2,000,000 general aggregate. Coverage to include bodily injury, property damage, personal and advertising injury, products/completed operations, and contractual liability. NMMI shall be named as Additional Insured.

2. Cyber Liability / Technology E&O Minimum Limits: $1,000,000 per claim. Coverage to include privacy liability, network security, data breach costs, media liability for digital content, regulatory defense (if applicable), and unauthorized access.

3. Workers’ Compensation & Employer’s Liability As required by New Mexico law. Employer’s Liability minimums: $100,000 each accident;

$500,000 policy limit; $100,000 each employee. If exempt, provide an affidavit of non-use/exemption.

4. Policy Requirements All policies shall be primary and non-contributory. Certificates of Insurance shall be provided prior to performance and upon renewal. Certificates shall include a 30-day notice of cancellation (10 days for non-payment). Failure to maintain insurance is grounds for termination.

5. Additional Insured & Endorsements NMMI, its officers, trustees, employees, and agents shall be named as Additional Insureds on CGL, Auto, and Cyber Liability policies. Contractor shall provide policy endorsements evidencing Additional Insured status and primary/non-contributory wording.

6. Subcontractors Contractor shall ensure that all subcontractors maintain insurance of the same type and minimum limits and shall obtain certificates upon request.

NEW MEXICO MILITARY INSTITUTE