The definitions and rules of interpretation in this clause apply in this agreement.
Assessments: shall have the meaning given in clause 9.2.
Business Day: a day (other than a Saturday or Sunday or public holiday) when the banks in the City of London are open for business.
Commencement Date: shall have the meaning given to it in the Key Terms Document.
Content: all materials provided by you, which are used in the marketing of the Donation page, including but not limited to images, text, videos and audio.
Donation: a financial transaction made by the End Customer to us through the Service.
Donor: a person who makes a Donation.
End Customer: the person or company who uses our Service through us.
Gift Aid: a scheme enabling you, or a Gift Aid Agent acting on behalf of you, to reclaim tax on a donation made by a UK taxpayer.
Key Terms Document: the document sent from us to you to confirm the key details, and existence, of the contract between us to which these terms apply.
Marketing Publications: any articles, press releases, news stories or other written pieces which we may publicise along with any Content in order to promote you and the giving of Donations.
Network Operators: EE, O2, Three Mobile, Virgin, Vodafone and any of their associated mobile virtual network operators.
Regulator: Ofcom, PhonepayPlus, Charity Commission for England and Wales, Charity Commission for Northern Ireland, Office of the Scottish Charity Regulator, the UK mobile network operators or such other official regulator from time to time appointed.
Payment Processor: any banking institution, card payment processor, bank transfer intermediary, Network Operator or any other third party which operates in the process of Donations made by a Donor being ultimately received by us.
Service: shall have the meaning given to it in the Key Terms Document.
Software: the online software applications provided by us as part of the Service.
Term Duration: shall have the meaning given to it in the Key Terms Document.
2.1 What these terms cover. These are the terms and conditions on which we supply the Service.
2.2 Why you should read them. These terms tell you who we are, how we will provide services to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.
2.3 This is our entire agreement with you. These terms constitute the entire agreement between us in relation to your purchase of our provision of the Service to you. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
3.1 Who we are. We are donr limited, a company registered in England and Wales, trading as donr. Our company registration number is 10402410 and our registered office is at The Stables, Back St George's Terrace, Newcastle upon Tyne, NE2 2SU. Our registered VAT number is 256 9378 55.
3.2 How to contact us. You can contact us by telephoning our customer service team at 0333 4444 111 or by writing to us at firstname.lastname@example.org or The Stables, St George’s Terrace, Newcastle upon Tyne, NE2 2SU.
3.3 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
3.4 "Writing" includes emails. When we use the words "writing" or "written" in these terms, this includes emails.
How we will accept your order. Our acceptance of your order will take place when we send to you the Key Terms Document, at which point a contract will come into existence between you and us.
5.1 Any changes that you request us to make to the Service will be made entirely at our discretion.
5.2 We provide reporting facilities which will be made available to you. Please note that any data obtained from the reporting facility is estimated and as such, may not be accurate.
6.1 Minor changes to the Service. We may change the Service without notice:
(a) to reflect changes in relevant laws and regulatory requirements; and
(b) to implement minor technical adjustments and improvements, for example to address a security threat.
6.2 Updates to content. We may update or require you to update the Content, provided that the Content shall always match the description of it that we provided to you when the Service was created.
7.1 You shall (in relation to the provision of the Service by us):
(a) co-operate (as requested by us) with us in all matters relating to the Service;
(b) appoint from time to time throughout the term of this agreement a suitable and qualified representative in relation to the Service (your Manager);
(c) provide, for us, our agents, subcontractors, consultants and employees, in a timely manner and at no charge, unrestricted access as reasonably required;
(d) provide, in a timely manner, such information as we may reasonably require, including all information required to enable us to complete any Assessments we consider necessary and ensure that such information is accurate in all material respects; and
(e) obtain and maintain all necessary licences and consents and comply with all relevant legislation.
7.2 You undertake to:
(a) obtain all necessary permissions and rights to use the Content including in relation to all necessary intellectual property rights in the Content;
(b) ensure that the Content complies with all applicable laws, regulations, licences, codes of practice and guidelines and obtain such regulatory permissions from the relevant regulatory bodies as may be necessary;
(c) follow all technical and other guidelines issued by us for the use of the Service;
(d) market the Service in accordance with all relevant laws, regulations, codes of practice and guidelines and to follow the Committee of Advertising Practice (CAP) best practice code of conduct and ensure that no marketing of the Content is made to End Customers without prior consent. You acknowledge that payment from us on behalf of the End Customer does not constitute consent;
(e) ensure that no unsolicited marketing is sent to End Customers at any time;
(f) comply with all applicable tax legislation and regulations and fully account for any Value Added Tax or other taxes that should be payable by you;
(g) ensure that no viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful is knowingly or carelessly introduced to or transmitted by or on behalf of you;
(h) ensure that neither the Content nor the Donation or Service is being used fraudulently or illegally;
(i) provide any information or evidence reasonably requested by us in relation to your identity or to show your compliance with the above;
(j) ensure that where a Donor is advised that their Donation will be used for a specific purpose, appeal or outcome, the Donation is used only for that specific purpose, appeal or outcome;
(k) inform us immediately if you cease to be a registered charitable organisation in the United Kingdom for any reason whatsoever; and
(l) ensure that the personal information of Donors is never sold to or shared with any third parties under any circumstances.
7.3 You shall not, without our prior written consent, at any time from the Commencement Date to the expiry of 12 months after the termination of this agreement, solicit or entice away from us or employ or attempt to employ or engage as a consultant or subcontractor any person who is, or has been within the previous 18 months, engaged as an employee, consultant or subcontractor of us in the provision of the Service.
7.4 You provide your full consent to us creating the Service with regards to you and the work your charity undertakes.
7.5 You provide your full consent to us preparing and publishing Marketing Publications with regards to you and the work your charity undertakes.
7.6 You undertake to provide your reasonable assistance to us in the creation of any Service or Marketing Publications.
7.7 You undertake to use your reasonable endeavours to obtain any and all proper consents, including those relating to data protection regulations, from any individuals associated with your charity that are included in any Service or Marketing Publications.
7.8 You acknowledge that all intellectual property rights in any Service or Marketing Publications are owned solely by us.
7.9 You acknowledge that any marketing of the Service to End Customers on your behalf by us is at our sole discretion and we may cease this activity at any time.
8.1 In consideration of the provision of the Service by us, you shall pay to us a Fee of 5% of the gross amount of every Donation (which does not include Gift Aid contributions.) Depending on how a person gives to your cause, there may be a card processing fee of 1.4% + 20p. If they choose to donate via text, then there are no additional processing fees or charges.
8.2 Our Fees will be deducted from the Donation amount.
8.3 All Donations will be paid to you on a monthly basis, 45 days after the end of the month in which the Donation took place (or the nearest Business Day). Donations may be paid to you sooner if they are made by credit or debit card.
8.4 All SMS text messages sent for the purpose of marketing (the volume and content of which to be instructed by you, but subject to the relevant compliance) to End Customers will be charged at a rate of £0.03p per message.
8.5 Time for payment shall be of the essence of this agreement.
8.6 All sums payable by you to us under this agreement shall become due immediately on its termination (howsoever that may occur), notwithstanding any other provision of this agreement. This clause 8.7 is without prejudice to any right we have to claim interest.
8.7 We may, without prejudice to any other rights it may have, set off any payment due from you to us against any payment due from us to you.
8.8 We reserve the right to amend payment days where payment from a Payment Processor to us is delayed, and such dates are estimates only and time for payment shall be not made of the essence.
8.9 We shall not be obliged to make any payments to you where we have not received payment from a Payment Processor for the corresponding Donation.
8.10 If, in our opinion you have breached this agreement or your obligations to the End Customer and as a consequence we have refunded Donations to the End Customer, we shall be entitled to invoice you for such refunds and costs or charges incurred by us in investigating the breach and providing such refunds.
8.11 If so requested by a Payment Processor, Network Operator or Regulator, we shall be entitled to withhold any sum due to you. Where such sums exceed fees due to you, we shall invoice you for the balance. Payment of such sums shall be due upon delivery of the invoice.
8.12 We reserve the right to increase our fees after providing you with at least 45 days written notice of such proposed increases in advance of implementation. During this period you will be entitled to cease using the Service upon providing us with written notice.
9.1 We shall use all reasonable endeavours to provide the Service to you, and to make the Software available at all times during the Term Duration.
9.2 We shall carry out such risk assessments or due diligence (Assessments) relating to the provision of the Service as deemed necessary and may serve notice by email to you where such Assessments identify a breach of any regulatory provision or requirement, any law or code of practice or any internal policy or procedure of us.
9.3 You acknowledge that all intellectual property rights in the Software anywhere in the world are licensed to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software other than the right to use it in accordance with these terms.
9.4 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the software meet your requirements.
9.5 The Software may not be free of bugs or errors from time to time, and the existence of minor errors shall not constitute a breach of this agreement and the Service is provided "as is", "with all faults" and "as available".
9.6 To the maximum extent permitted by law, we make no representations, warranties or conditions express or implied about the quality of the Service or Software.
9.7 We may change or amend the Service at any time without prior notice to you.
9.8 We shall use all reasonable endeavours to keep all data secure and safe in accordance with the Data Protection Act 1998, Electronic Commerce (EC Directive) Regulations 2002, Privacy and Electronic Communications Regulations 2003 and the EU General Data Protection Regulation.
9.9 We will provide a consumer care telephone number for all End Customers of yours using the Service. All calls to this telephone number will be handled by us unless you have specifically requested in writing to handle them.
9.10 We shall provide a facility for you to download and view all information relating to Gift Aid.
9.11 We will never sell or rent the personal information of Donors to any third parties.
9.12 We shall not, without your prior written consent, at any time from the Commencement Date to the expiry of 12 months after the termination of this agreement, solicit or entice away from you or employ or attempt to employ or engage as a consultant or subcontractor any person who is, or has been within the previous 18 months, engaged as an employee, consultant or subcontractor of you in the provision of the Services.
9.13 Where we market the Service on your behalf, we undertake to:
(a) obtain all necessary permissions and rights to use the Content including in relation to all necessary intellectual property rights in the Content;
(b) follow any guidelines issued by you;
(c) market the Service in accordance with all relevant laws, regulations, codes of practice and guidelines and to follow the CAP best practice code of conduct and ensure that no marketing of the Content is made to End Customers without prior consent;
(d) ensure that no unsolicited marketing is sent to End Customers at any time; and
(e) co-operate (as requested by you) with you in all matters relating to the marketing of the Content.
9.14 We may have to suspend the Service to:
(a) deal with technical problems or make minor technical changes; or
(b) update the product to reflect changes in relevant laws and regulatory requirements.
9.15 Your rights if we suspend the supply of the Service. We will contact you in advance to tell you we will be suspending supply of the Service, unless the problem is urgent or an emergency.
10.1 We may end the contract if you breach it. We may end the contract for the Service at any time by writing to you if:
(a) you do not make any payment to us when it is due and you still do not make payment within 14 days of us reminding you that payment is due; or
(b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Service; or
(c) you do not comply with any one of your obligations in clause 7 of this agreement within a reasonable time of the request to do so (if a request is applicable).
How to tell us about problems. If you have any questions or complaints about the Service, please contact us. You can telephone our customer service team at 0333 4444 111 or write to us at email@example.com or The Stables, St George’s Terrace, Newcastle upon Tyne, NE2 2SU
12.1 Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
12.2 All terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
12.3 Subject to clause 12.1:
(a) we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and
(b) our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the price paid for the Service during the previous 3 months (or the charges incurred since the commencement of this agreement where it has been in force for less than 3 months).
13.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the technical or commercial know-how, specifications, business, affairs, customers, clients or suppliers of the other party.
13.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 6; and
(b) as may be required by law, court order or any governmental or regulatory authority.
13.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
14.1 If any dispute arises in connection with this agreement, one of our directors and your Manager shall, within 14 Business Days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
14.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR Notice) to the other party requesting a mediation. A copy of the request should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR Notice.
14.3 No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
We may at any time set off any sums due to us by you against any sums collected on your behalf, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, we may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by us of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
16.1 We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation.
16.2 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
16.3 Nobody else has any rights under this contract. This contract is between you and us. No other person shall have any rights to enforce any of its terms. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these terms.
16.4 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
16.5 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later date.
16.6 Which laws apply to this contract and where you may bring legal proceedings. Any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.