LETTER OF AGREEMENT
This Agreement governs the terms and conditions of the business relationship between ("Organization") and Givenik LLC, 246 West 44th St, NY, NY 10036 ("Givenik").
1. Givenik Services. Starting on the date on which written notification by e-mail is delivered by Givenik to Organization stating that Organization has been approved as a participant in Givenik and on which Givenik has received the IRS letter described in Paragraph 2 below (the "Effective Date"), Givenik agrees to provide:
1. Offers ("Offers") to Broadway and other shows ("Shows") for Organization Members;
2. A monthly newsletter ("Newsletter") highlighting participating Shows for Organization to provide to its members;
3. A link to Givenik.com ("Link") for Organization's website;
4. Givenik.com art and copy, for Organization's promotional purposes;
5. Page(s) on Givenik.com personalized for Organization highlighting Shows and Offers;
6. Payments to Organization in accordance with paragraph 4 below;
Givenik has the right in its sole discretion to provide Offers to additional attractions, including but not limited to Off-Broadway, other performing arts and/or sporting events.
2. Organization Services. Organization agrees to:
1. Register at Givenik.com by completing in full the Registration Form;
2. Within ten (10) business days of accepting this Letter of Agreement electronically through the Givenik.com site, provide to Givenik, a copy of the IRS letter confirming Organization's non-profit status, delivered by mail to Givenik LLC c/o Jujamcyn Theaters, Attn: Karen Freidus, 246 W. 44th Street, NY, NY, 10036.
3. Utilize Givenik.com resources (including but not limited to: art, copy and newsletters) to share information with members, supporters, donors, participants, alumni, students, parents, employees, as applicable (collectively, "Organization Members") either by email or on paper, on a regular, to be determined basis.
4. Include Link on Organization's website.
5. Provide content (i.e. art, copy) as requested by Givenik to personalize Organization's page(s) on Givenik.com.
In connection with Givenik and the services provided under this Agreement, Organization represents and warrants that it has obtained all consents, approvals and licenses necessary for its participation in and registration for Givenik and grants Givenik the right to use, publish, and disseminate information associated with Organization as defined in the Publicity paragraph herein.
4. Payment to Organization. Upon the occurrence of the Effective Date, for all Reported Sales, Givenik will make a payment to Organization of 5% of the established ticket price, excluding any service, handling, theatre restoration, facilities, or other applicable charges ("Payment"). Givenik will remit Payment by check to the Organization on a quarterly basis, provided that the amount of Payment is equal to or in excess of Fifty ($50) Dollars. In the event that the amount of Payment is less than Fifty ($50) Dollars for a specific quarter, then the Payment will be held by Givenik until the next quarterly period that the total amount of Payment is equal to or in excess of Fifty ($50) Dollars. In the event the Payment due for the last quarter of the calendar year or the accrued Payment(s) due from previous quarter(s) in the last quarter of the calendar year is less than Fifty ($50) Dollars, Givenik will make the Payment to Organization. Payment will be sent by U.S. Mail, and will include a report documenting the ticket sales data associated with the Payment. In the event there is a customer dispute or accounting discrepancy associated with a particular ticket sale by any Organization Members, then that portion of the Payment will be held by Givenik pending resolution of the dispute or discrepancy. Givenik is not liable to Organization or Organization Members for any sales not included in Reported Sales. Givenik represents and warrants to Organization that Givenik payments do not exceed the applicable statutory limit(s), if any, for payments to third parties on the sale of tickets.
5. Term. This Agreement will continue for a period of twelve (12) months from the Effective Date. This Agreement will automatically renew for successive twelve (12) month terms, unless terminated by either party in accordance with paragraph 6 below.
6. Termination. Either party may terminate the Agreement by providing at least thirty (30) days' advance written notice to the other party prior to the end of the then current term of its intention to terminate the Agreement. Either party may terminate the Agreement due to any material breach by the other of the terms and conditions of the Agreement, provided that the breaching party has not cured the breach within five (5) business days of notice. Notwithstanding anything to the contrary in this Agreement, Givenik may immediately terminate this Agreement if (a) Givenik has not received, within ten (10) business days of the date Organization accepted this Letter of Agreement electronically through the Givenik.com site, a copy of the IRS letter confirming Organization's non-profit status required pursuant to Section 2 of this Agreement, or (b) at any time, Organization is not a 501(c)(3) or 509(a)(1) tax-exempt organization currently in operation and located within the United States.
7. Effect of Termination. Upon the expiration or termination of the Agreement for any reason, Organization's right to use Givenik, and any other rights granted hereunder, will immediately cease; and each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of the Agreement will not relieve either party from any liability arising prior to the termination of the Agreement provided that in no event shall Givenik be required to make any payment to Organization pursuant to Section 4 of this Agreement with respect to a Reported Sale, to the extent Organization was not a 501(c)(3) or 509(a)(1) tax-exempt organization in operation and located within the United States at the time of such Reported Sale. Following termination of the Agreement, Givenik will send any outstanding payments accrued or due to Organization at the end of the quarter in which the date of termination falls. Organization Members who become members of Givenik will continue to be members of Givenik following the termination of the Agreement. The terms of this Paragraph survive any termination of the Agreement.
8. Publicity. Givenik has the right to mention the existence of the Agreement after the Effective Date and while the Agreement remains in full force and effect, in its marketing materials, public announcements, or as reference for future participants, provided that any such marketing materials accurately reflect the nature of the business relationship created by the Agreement and any such marketing materials do not disclose Confidential Information defined herein.
9. Confidential Information. Organization and Givenik each undertake to retain in confidence the terms of the Agreement and all other non-public information, technology, materials and business of the other party disclosed or acquired by the other party pursuant to or in connection with the Agreement, which is either designated as proprietary and/or confidential or in good faith should be treated as proprietary and/or confidential ("Confidential Information").
10. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
11. Assignability. Neither party may assign this Agreement without the prior written consent of the other.
12. Arbitration. In the event a dispute between Organization and Givenik should arise in connection with this Agreement and is unresolved, the dispute will be arbitrated with the American Arbitration Association ("AAA"), with each side to share equally the fee of the arbitration and otherwise bear its own expense, including but not limited to attorney's fees.
13. Notice. All notices will be in writing delivered in person, or sent by facsimile, or delivered by certified mail, postage prepaid, or via overnight courier, properly addressed in accordance with this Paragraph. Delivered to Givenik at Givenik LLC, c/o Jujamcyn Theaters, Attn: Karen Freidus, 246 West 44th Street, New York, New York 10036, Facsimile (212) 944-0708, Phone (212) 840-8181. Delivered to Organization at the address given in Organization's on-line enrollment form under "Organization".
14. Entire Agreement and Modification. The terms of this Agreement constitute the entire Agreement between Organization and Givenik and its terms supersede any prior Agreement or terms, whether written or oral. Any waiver, modification, or amendment of any provision of the Agreement will be effective only if executed by the parties in writing.
15. Business Relationship. No joint venture, association, partnership, employment, franchise or agency relationship exists or will be construed between Organization and Givenik or any of its affiliates, as a result of this Agreement and/or any Enrollment Form.