DONOR TERMS AND CONDITIONS

Charitable Giving Ltd ABN 81 657 475 164 (Provider) is trustee of the Fund.

The Provider operates a donation platform that facilitates the connections between donors (You) and charitable organisations (each a Donee) through a mobile application and the Website (Online Services).

You have agreed to enter into an agreement with the Provider on these Terms and Conditions (Agreement). By using the Online Services or otherwise acting in a manner indicative of accepting these Terms and Conditions, You agree to this Agreement and any other policies notified in writing to You or published by the Provider on the Website from time to time.

1. TERM:

This Agreement commences on the date You accept or are deemed to have accepted these Terms and Conditions (Commencement Date) and will continue until terminated in accordance with clause 11 of this Agreement (Term).

2. AUTHORISATION:

You authorise the Provider to receive Your donation on the terms and conditions specified in this Agreement.

3. PROVISION OF SERVICE:

The Provider will use all reasonable endeavours to provide You with the Online Services to enable You to make online donations to the Donees.

4. MERCHANT FEES:

You may be required to pay applicable merchant service or transaction fees which will be notified to You at the time of payment. You acknowledge that the Provider does not receive any benefit in respect of this merchant service or transaction fee and pays the entire amount directly to the applicable merchant service.

5. DONATION ARRANGEMENTS:

a. When You use the Online Services to make a donation, You donate to the Fund.

b. The Provider, in its capacity as trustee of the Fund, facilitates charitable giving by administering donations received in the Fund and distributing each donation to Your selected Donee.

c. The Provider will issue a tax deductible receipt to You when a payment to a Donee is remitted.

d. Donations to the Fund are irrevocable gifts when received in the Fund.  The Provider as trustee of the Fund retains exclusive and legal control over all contributed assets in the Fund.

e. The Provider will remit donations collected to a Donee by EFT or as otherwise agreed with that Donee. At the time of each remittance, the Donee will also be provided with a remittance advice showing each donor’s details and the amounts collected on behalf of the Donee.

f. If Your selected Donee is no longer able to receive a donation within a reasonable timeframe after You make the donation using the Online Services without breaching any law, for example, if the Donee has ceased to be endorsed as a DGR, You authorise the Provider to reallocate the donation to a Donee selected by the Provider.

g. You may also donate to a Donee that is not endorsed as a DGR, however, the donation must be made to the Provider directly rather than the Fund and You will not be entitled to a tax deduction for such donation.

6. YOUR ACKNOWLEDGEMENTS:

You acknowledge that:

a. Neither You nor any of Your Associates will receive any benefit as a result of any donation to Your nominated Donee;

b. You voluntarily make each donation and such donation does not result from a prior obligation imposed on You by any contract or law; and

c. You do not receive or reasonably expect to receive, any material benefit, advantage, right or privilege in return for making any donation (other than any tax deduction permitted by law).

7. YOUR OBLIGATIONS:

You must:

a. not use the information or Intellectual Property of the Provider except in a manner expressly permitted by the Provider;

b. not do anything that may injure the reputation of the Provider and/or bring the Provider into disrepute;

c. comply with all applicable laws and, if You are the trustee of a trust or  are acting on behalf of a company or other entity, comply with Your governing document;

d. promptly provide the Provider with full and accurate information reasonably required by the Provider to provide the Online Services and perform its obligations under this Agreement;

e. comply with third party terms of service/conditions of use applying to the Online Services including Google, Apple and any merchant/bank in relation to the collection of relevant monies;

f. inform all necessary government and regulatory bodies of any matters required to give effect to this Agreement; and

g. ensure that You have Authority to make donations through the Online Services and that such donations are not charged back or otherwise returned.

8. PROVIDER OBLIGATIONS:

The Provider represents and undertakes to You that, at all times during the Term:

a. it and the Fund is and will remain registered as a charity with the ACNC;

b. it and the Fund comply and will continue to comply in all material respects with:

i. its registration requirements under the ACNC Legislation;

ii. the Guidelines, in the case of the Fund; and

iii. the Corporations Act 2001 (Cth), in the case of the Provider;

c. the Fund is endorsed and will maintain its endorsement as a DGR;

d. it will perform its obligations under this Agreement in a timely and professional manner with the degree of skill, experience, care and diligence that is reasonably expected of a person performing the equivalent services; and

e. it and the Fund hold and will continue to hold all Authorities required to perform their obligations under this Agreement.

9. SUSPENSION OF SERVICE:

The Provider may (acting reasonably) suspend the Online Services to carry out essential maintenance work to the Website or any aspect of the Online Services or on the occurrence of any Force Majeure Event. The Provider will not be liable to You for any direct or indirect loss arising from suspension of Online Services.

10. DISPUTES:

a. You must not commence any court or arbitration proceedings relating to a complaint or any dispute relating to the breach, termination, validity or subject matter of this Agreement (Dispute) unless You have complied with this clause, except to seek urgent interim, injunctive or interlocutory relief.

b. You must promptly notify the Provider in writing giving details of the Dispute. On the Provider’s receipt of a notification of a Dispute from You, the Parties must meet and use reasonable endeavours to resolve the Dispute.

c. If the Dispute is not resolved within seven (7) Business Days of the date on which You notify the Dispute in accordance with clause 10(b), either party may submit the Dispute for mediation pursuant to 10(d).

d. Any Dispute submitted for mediation under this clause will be conducted in accordance with the Institute of Arbitrators and Mediators Australia (IAMA) Mediation Rules. The terms of the IAMA Mediation Rules are incorporated into this Agreement. The parties may agree on the identity of the mediator appointed to mediate a Dispute, provided that where the parties are unable to agree on the identity of the mediator within seven (7) days of the dispute being submitted for mediation, either party may request that the IAMA appoint a mediator.

e. If a Dispute referred to mediation under clause 10(c) and (d) is not resolved within thirty (30) days after the date on which the mediator is appointed or any further time period agreed by the parties in writing, the dispute resolution process under this clause will be terminated and either party may commence legal proceedings in respect of the dispute.

11. TERMINATION:

a. Either party may terminate this Agreement by giving not less than fourteen (14) days’ notice in writing to the other party.

b. Either party may terminate this Agreement immediately by notice in writing to the other party if:

i. the other party breaches or threatens to breach any of its material obligations under this Agreement;

ii. the other party breaches an Authority or a condition in any Authority; or

iii. a Termination Event occurs in relation to the other party.

c. The Provider may terminate this Agreement immediately by notice in writing if You have committed an act which, in the reasonable opinion of the Provider, would adversely affect the reputation or business of the Provider, the Fund or the Online Services.

d. Termination of this Agreement will not release either party from any liability arising out of this Agreement, from any breach of the terms of this Agreement or from any obligation to perform some act, matter or thing arising from the termination of this Agreement.

e. Any clauses which either expressly or by their effect continue after termination will continue in full force and effect.

f. Following termination, the Provider may:

i. remove Your access to the Online Service;

ii. retain Your data/information as provided for under the Privacy Policy;

iii. refuse to accept donations; and/or

iv. refund to You or reallocate any donation made by You to another Donee.

12. LIMITATION OF LIABILITY 

a. The Provider excludes all terms, conditions, warranties and guarantees implied by law or statute except for any terms, conditions, warranties and guarantees the exclusion of which would contravene any statute (including the Australian Consumer Law) or which would cause this clause to be void or unenforceable (Non-Excludable Provision).

b. Other than any applicable consumer guarantees that are imposed by statute (including under the Australian Consumer Law), which are not excluded, modified or restricted by this clause, You acknowledge that the Provider makes no representations and gives no warranties that the Online Services are fit for any particular purpose. You must independently assess the suitability of the Online Services for Your needs prior to requesting the Online Services.

c. Subject to clause 12(b), the Provider's liability to You for breach of any Non-Excludable Provision is limited, at the Provider's option, to supplying the Online Services again or paying the cost of having the Online Services supplied again.

d. If the Provider is in breach of this Agreement and You have fully complied with Your obligations under this Agreement, the total liability of the Provider whether in contract, tort (including negligence), under statute or otherwise under or in connection with this Agreement will not exceed the aggregate of $500.

e. Subject to clause 12(c) and to any right You may have under the Australian Consumer Law or any other applicable law, the Provider will not be liable to You for any Consequential Loss (whether direct or indirect) suffered by You or any other person and arising out of any breach or other act or omission of the Provider in connection with this Agreement.

f. In no circumstances will the Provider incur liability or expense directly or indirectly caused by or contributed to by, or arising from, the use or operation, as a means for inflicting harm, of any computer, computer system, computer software program, malicious code, computer virus or process or any other electronic system (Cyber Crime), whether affecting the Online Services or any Third Party Services. 

g. The Provider’s liability will be decreased proportionately to the extent that the loss, cost, expense or damage is caused or contributed to by You or otherwise arises from any breach, failure or other act or omission arising under or in connection with this Agreement by You.

13. PRIVACY:

a. The Provider will comply with the Privacy Act 1988 (Cth) in respect of the collection, use and disclosure of personal information (as defined in that Act).

b. You authorise the Provider to:

i. collect, store, record and transmit, Your personal information provided when You register for the Online Services; 

ii. use and disseminate such personal information for the purposes specified in this Agreement and the Privacy Policy or as otherwise notified by the Provider to You; and

iii. use and retain Your personal information for the following purposes and for other purposes as may be agreed between the parties or required by law from time to time:

A.          to communicate with You regarding the Online Services (including provision of receipts for donations to Donees);

B.          to provide electronic newsletters and marketing information with respect to the Online Services including using social media such as Facebook and Linked In;

C.         processing of any payment instructions, direct debt facilities and/or the collection of amounts outstanding in relation to the Online Services; and

D.         any other purpose in connection with the provision of the Online Services.

14. INTELLECTUAL PROPERTY:

a. Unless agreed otherwise by the Provider in writing, all output from Online Services and any other Intellectual Property supplied or developed under this Agreement in respect of the Online Services vests in the Provider or its licensors on creation.

b. Intellectual Property, whether in existence prior to or arising in the future, and any other rights, title or interest in any Intellectual Property developed in relation to the Online Services will remain the property of the Provider or its licensors.

c. You acknowledge and agree that all content, coding, graphics, images, animations and information made available by the Provider in connection with the Online Services is protected by copyright, trade mark or other intellectual property rights and laws.

d. You must not copy, reproduce, modify, republish, upload, post, transmit or distribute any part of the information made available by the Provider in connection with the Online Services, without the Provider’s prior written consent.

e. Using the Online Services does not give You any right, title or interest to the information supplied by the Provider in connection with the Online Services or any other aspect of the Website.

15. RELATIONSHIP:

a. The parties acknowledge and agree that each party performs its obligations under this Agreement as an independent contractor and nothing in this Agreement creates an employment relationship, agency, joint venture, partnership, delegation or any association of any kind between the parties.

b. Neither party will have any authority to incur and must not incur any obligation or make or purport to make any representation on behalf of the other party except with the express written instructions of the other party.

c. Each party must not at any time represent itself and must ensure that its personnel do not represent themselves to any other person as being the other party’s employee, partner or agent.

16. ASSIGNMENT AND THIRD PARTY SERVICES:

a. You must not assign the benefit or obligations of this Agreement without the prior consent of the Provider.

b. The Provider may assign, subcontract or transfer any of its rights or obligations under this Agreement.

c. In the provision of the Online Services, the Provider frequently utilises third party systems, software, platforms or infrastructure (Third Party Services) and may change such service providers from time to time without notice to You. 

17. FORCE MAJEURE:

a. Where either party (or a provider of Third Party Services) is unable, either wholly or in part, to carry out any obligation under this Agreement (or in the case of a provider of Third Party Services, provide services to the Provider to enable it to perform its obligations under this Agreement) due to an act of God, flood, earthquake, storm, cyclone, fire, explosion, epidemic, war, embargo, electrical disturbance, riot or civil disturbance, which are beyond the reasonable control of that party and that party could not take reasonable measures to prevent such event (Force Majeure Event), the affected party will notify the other party in writing of the occurrence of the Force Majeure Event and use all reasonable endeavours to remedy the effect of the Force Majeure Event and to continue to perform its obligations under this Agreement.

b. The time required for the performance of any obligations of a party affected by the Force Majeure Event will be extended for a period equal to the period that they are affected by any such Force Majeure Event.

c. If the delay or non-performance of the obligations continues for more than thirty (30) days, the other party may terminate this Agreement by giving thirty (30) days’ notice in writing to the affected party.

18. GENERAL:

a. No variation of this Agreement will be of any effect unless it is in writing, signed by the parties.

b. This document contains the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, representations or understanding.

c. A party may only waive a breach of this Agreement by notice in writing to the other party.

d. Any provision of this Agreement which is illegal, void or unenforceable will be ineffective only to the extent of that illegality, voidness or unenforceability without invalidating the remaining provisions.

e. This Agreement may be executed in counterparts and those counterparts taken together constitute one and the same instrument.

f. The parties consent to this Agreement being signed by or on behalf of a party by electronic signature. In this clause, ‘electronic signature’ means a digital signature or other visual representation of a person’s handwritten signature or mark placed or typed on a copy of this deed by electronic or mechanical means (or any other means of electronic signing this deed used by agreement between the parties).

g. The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

19. JURISDICTION:

This Agreement is governed by and will be construed in accordance with the laws from time to time in force in the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.

20. DEFINITIONS

In this Agreement:

ACNC means the Australian Charities and Not-for-profits Commission;

ACNC Legislation means the Australian Charities and Not-for-profits Commission Act 2012 (Cth) and the Australian Charities and Not-for-profits Commission Regulation 2013 (Cth);

Agreement means the agreement formed between You and the Provider when You accept these Terms and Conditions;

Associate means:

a.     any of Your relatives (including Your spouse, Your partner and any of Your dependents);

b.     any partnership in which You are a partner;

c.     a trustee of a trust in relation to which You or any of Your associates benefits or is capable of benefiting, for example, a discretionary trust, either directly or through any interposed company, partnership or trust;

d.     a company which is, or the directors are accustomed or under an obligation (formal or informal) to act in accordance with Your directions, instructions or wishes or the directions, instructions or wishes of any of Your associates; or

e.     a company in relation to which You and/or any of Your associates may cast, or control the casting of, more than 50% of the votes at a meeting of the members of a company;

Australian Consumer Law means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth);

Authority means all necessary licences, consents, permissions, authorities, registrations and permits required for a party to perform its obligations under this Agreement;

Commencement Date has the meaning given in clause 1;

Consequential Loss means loss of profit, loss of production, loss of use of any plant or facility, business interruption, loss of business opportunity or any other indirect, consequential, special, contingent damage or loss;

DGR means an entity to which tax deductible gift or contribution may be made under the Income Tax Assessment Act 1997 (Cth);

Force Majeure Event has the meaning given in clause 17;

Fund means the Charitable Fund ABN 76 615 370 698 established by trust deed dated 13 July 2002;

Guidelines means the Taxation Administration (Public Ancillary Fund) Guidelines 2022 (Cth);

Intellectual Property means all intellectual property rights including in respect of any registered or unregistered business names, copyright, patents, trade marks, service marks, designs and similar industrial, confidential information, commercial and intellectual property (including formulae and know how);

Online Services means Charitabl. application available on GooglePlay or the AppStore and www.charitabl.org or any such site as notified by the Provider from time to time;

Privacy Policy means the Provider’s Privacy Policy located here;

Termination Event means:

a)     in relation to a party that is a body corporate, when the party:

       i.         has an administrator, receiver, manager, receiver and manager, liquidator or provisional liquidator or external controller appointed in relation to it; or

      ii.         is wound up or is dissolved; or

     iii.         is, or states that it is, unable to pay its debts when they fall due or is deemed unable to pay its debts under any applicable legislation (other than as a result of a failure to pay a debt or claim which is the subject of a good faith dispute); or

    iv.         enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors generally or any class of its creditors or proceedings are commenced to sanction any such arrangement, composition, compromise or assignment; or

     v.         ceases, or threatens to cease, to carry on business; or

    vi.         takes any steps to obtain protection or is granted protection from its creditors under the laws of any applicable jurisdiction;

b)     in relation to a party that is an individual, when the party:

       i.         dies or becomes of unsound mind or a person whose personal estate is dealt with in any way under the law relating to mental health;

      ii.         is unable to pay their debts when due or an application is made to declare that person is bankrupt;

     iii.         commits an act of bankruptcy or compounds with their creditors;

    iv.         brings their estate within the operation of any law relating to bankrupts;

     v.         enters into a composition or deed of arrangement with their creditors;

    vi.         takes the benefit of any statute that may be available for bankrupt or insolvent debtors; or

c)     any analogous event occurs in relation to a party in any jurisdiction;

Third Party Services has the meaning given in clause 16; and

Website means www.charitabl.org or any such site as notified by the Provider from time to time.

21. INTERPRETATION:

In this Agreement, unless the context otherwise requires:

a)     a reference to a person includes a reference to a corporation, an association, joint venture, an unincorporated body, partnership, government or local authority or agency or other entity;

b)     a reference to a party includes the party’s administrators, successors and permitted assigns and substitutes;

c)     a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;

d)     where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

e)     headings are inserted for convenience only and do not affect the interpretation of this Agreement; and

f)      a reference to a clause, paragraph or schedule is to a clause or paragraph of, or schedule to, this Agreement, and a reference to this Agreement includes any schedule.