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The below Agreement for the Provision of Online Donation Processing may be translated into different languages. In the event of any conflict or inconsistency between any term in the English language and any translation thereof in any other language, the English version shall prevail.
By checking the "Accept" box below, you the beneficiary agree that the effective date of the applicable Provision of Online Donation Processing is the date on which you check such below box.
This Agreement ("Agreement") is made by and agreed to between The Give Back Campaign Pty Ltd and all International related entities, located at 18 Glenna Place Parkinson Queensland Australia 4115 and you ("You").
(a) The Give Back Campaign Pty Ltd is a for profit company which provides online donation, fundraising and administrative services to charities, community organisations, companies and individuals.
(b) The Give Back Campaign trades through the web site addresses at www.thegivebackcampaign.com.
(c) The Beneficiary has requested that The Give Back Campaign provide the Services set out in this agreement.
(d) The Give Back Campaign has agreed to provide the Services on the terms and conditions set out in this agreement.
IT IS AGREED
In this Agreement, unless the context requires otherwise:
Agreement means this agreement and includes any schedules and annexures;
TGBC means The Give Back Campaign Pty Ltd ABN 75 158 085 815;
Beneficiary means the person or entity completing this online application;
Donations mean the payments made by donors to TGBC on behalf of the Beneficiary;
Receipt means a receipt for a tax deductible gift;
Reporting Period means the length of time specified in Item 6 of the schedule, 3 years;
Services mean the web-based promotion of the Beneficiary, Donation payment collection, tax deductible receipt administration and other services agreed between the parties;
2 STATUS OF TGBC
(a) This Agreement defines and governs the relationship which will exist between the Beneficiary and TGBC.
(b) TGBC is engaged by the Beneficiary as a self-employed Service Company.
(c) TGBC is engaged by the Beneficiary pursuant to this contract of service.
(d) TGBC is carrying on its own business in the performance of the contract with the Beneficiary.
(e) The Beneficiary has no right to control the manner in which the services are completed and done so long as those services are completed in accordance with the terms of this Agreement.
(f) It is not a term of this Agreement that the Service Company must perform the Services personally, but as long as the Services are performed in accordance with the terms of this Agreement and the Beneficiary letter of direction
(g) TGBC shall for the term hereof provide the Services through its employees as the TGBC shall in its sole discretion determine.
(h) It is acknowledged that this engagement is non-exclusive and that the TGBC can provide services to other Beneficiaries,
3 OBLIGATIONS OF TGBC
In consideration of the Beneficiary utilising the services of TGBC, for the term of this agreement, TGBC must:
(a) permit the Beneficiary to create an account and webpage;
(b) permit individuals who wish to promote Donations to the Beneficiary, and who agree to TGBC's terms and conditions
i. to make Donations to the Beneficiary;
ii. to create a personal page linking to the Beneficiary webpage;
iii. to create team fundraising pages linking to the Beneficiary webpage
(c) host the Beneficiary webpage and fundraiser's personal fundraising page(s) on the Website;
(d) use all reasonable endeavours to ensure that the Website is operative 24 hours per day, 7 days per week so that donors may make online payments through the Beneficiary webpage by credit card; or via smartphone
(e) respond to any enquiries from donors in relation to using the Website.
(f) monitor the Beneficiary and personal fundraising pages. TGBC reserves the right to remove any content without consultation if TGBC, in its absolute discretion, considers:
i. that the content is inappropriate for inclusion on the Website; and
ii. it is not reasonable or practical in the circumstances to consult with the relevant party in a timely manner.
3.2 Repayment of donations
(a) If a donor contacts TGBC to advise that the donor has mistakenly made a Donation to the Beneficiary, the Beneficiary agrees that TGBC may return the Donation to the donor provided that the amount has not already been paid to the Beneficiary in accordance with clause 3.3.
3.3 Accounts and Records
(b) maintain a bank account for the purposes of:
i. holding all Donations received through the Website and
ii. paying the Donations to the Beneficiary in accordance with clause 3.4
(c) maintain a separate management account for the Beneficiary that will record:
i. all Donations received;
ii. all payments made by TGBC to the Beneficiary;
(d) at the end of each Reporting Period TGBC will provide the Beneficiary with a copy of:
i. the management account setting out each Donation collected for the Beneficiary and due to be paid to the Beneficiary by TGBC for that Reporting Period;
ii. the name and amount of the Donation for the purpose of reconciling monthly reports. (All receipts will be issued by TGBC); and
iii. the names, street addresses and email addresses of the donors who have made Donations to the Beneficiary.
3.4 Issuing Receipts and Donation payment
(a) provide all donors with an immediate acknowledgement by email or SMS of receipt of their donation payment;
(b) provide all donors with a Receipt; and
(c) within 30 days of providing a notice of monies due under clause 3.3, pay the relevant amount to the bank account nominated by the Beneficiary.
3.5 Provision of Services
(a) perform the Services in a sound manner with the standard of diligence and care normally employed by persons in the performance of comparable work in accordance with generally accepted practices appropriate to the type of activity covered by the Services.
(b) rectify any defects in the performance of the Services as notified by the Beneficiary to the Service Company.
i. bind or commit or purport to bind or commit the Beneficiary or hold (or purport to hold) himself out as having any authority to do so; or
ii. issue any public statement or communication or make any representation in any way directly or indirectly affecting the Beneficiary or its affairs other than with the Beneficiaries prior written consent.
(d) ensure that they:-
i. render the Services with integrity and honesty;
ii. observe and comply with government legislation and regulations from time to time pertaining to the performance of the Services;
iii. keep the Beneficiary fully informed of particulars of the Services rendered;
iv. will take all care not to misrepresent the Beneficiary;
v. will take all care not to mislead any beneficiary or prospective beneficiary of the Beneficiary;
vi. will not advertise or distribute material on behalf of the Beneficiary without the consent of the Beneficiary; and
vii. will not negotiate with any beneficiary or prospective beneficiary of the Beneficiary to the Services but shall refer the same to the Beneficiary.
4 OBLIGATIONS OF THE BENEFICIARY
For the term of this Agreement, the Beneficiary must:
(a) obtain and comply with all conditions of any registrations, permits, licences, consents or permissions that the Beneficiary is required to hold in order to validly request and accept donations and to have TGBC request and accept donations on its behalf under this Agreement;
(b) comply with all applicable state and federal laws.
(c) place a link on its website to the Beneficiary's Landing Page on www.thegivebackcampaign.com
5 LICENCES AND RELATIONSHIP
5.1 TGBC Licence
(a) a non-exclusive licence to use the Beneficiary's trademark in connection with the Website and the provision of Services. This licence will automatically terminate upon the expiry or termination of this Agreement.
(b) a non-exclusive licence to use, reproduce, adapt and communicate information provided by the Beneficiary for the purpose of inclusion on the Website, marketing or internal use by TGBC. This licence will terminate 30 days after receiving written notice from the Beneficiary advising TGBC that it wishes to terminate this licence.
5.2 Beneficiary Licence
(a) Subject to obtaining TGBC's prior written consent to the particular use, TGBC grants the Beneficiary a non-exclusive licence to use TGBC's trademark in connection with the Beneficiary's promotion of a particular:
i. fundraising activity; or
ii. method of donating to the Beneficiary.
(b) The licence granted in clause 7(a) will automatically terminate upon the expiry or termination of this Agreement.
(a) This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
(b) A party will have no right or authority expressed or implied to bind the other party to any other Agreement, obligation or undertaking.
(a) Each party agrees with each other party that all information in relation to the other party's business including, without limitation, any trade secrets, operations know-how, or any information concerning the organisation, management and finance of the other party or in relation to TGBC or the Beneficiary which is exchanged between them under this Agreement or acquired during the negotiations prior to execution of this Agreement is confidential and shall not be disclosed, divulged or otherwise placed at the disposal of any person not being a party to this document except:
i. to employees, legal advisers, auditors and other consultants requiring the information for the purposes of this document;
ii. with the consent of the party who supplied the information;
iii. if the information is prior to the execution of this Agreement lawfully in the possession of the recipient of the information through sources other than the party who supplied the information;
iv. if required by law or a stock exchange;
v. if strictly and necessarily required in connection with legal proceedings relating to this document; or
vi. if the information is or becomes generally and publicly available other than through the default of a party who divulges the information.
(b) The provisions of this clause 6 continue in full force and effect for a period of 3 years after the termination of this document.
7 RECORDS AND AUDIT
(a) Subject to the provision of 14 days written notice the Beneficiary may request to inspect and make copies of TGBC's records relating to the provision of Services to the Beneficiary.
(b) During the term of the Agreement and thereafter for a period of 24 months after the dates of the transactions to which they relate, TGBC must keep at its principal office true and correct accounts and records of all Donations.
(a) In this clause:
i. "GST" means the Goods and Services Tax levied under the GST Act or any other goods and services tax, value added tax, consumption tax or tax of similar effect levied from time to time;
ii. "GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) (as amended); and
iii. words and phrases which are defined in the GST Act have the same meaning when used here.
(b) The amounts payable by the Beneficiary under this Agreement in respect of a taxable supply by TGBC are expressed as a GST exclusive amount and the Beneficiary must, in addition to that amount and at the same time pay to TGBC any GST payable in respect of that supply.
(c) The Fees must be listed separately with a total GST amount included in the Tax Invoice.
(d) TGBC's right to payment under this clause 14 is subject to a valid Tax Invoice being delivered to the Beneficiary.
(e) TGBC must issue an adjustment note for any adjustments which arises in relation to a Taxable Supply as and when required to do so by the GST Act.
(a) TGBC warrants that it has:
i. obtained any registrations, permits, licences, consents or permissions that TGBC is required to hold in order to validly request and accept donations under this Agreement; and
ii. the authority to enter into this Agreement, grant the licences under clause 5, and be bound by the warranties contained in this clause 9.
(b) The Beneficiary warrants that:
i. it has obtained any registrations, permits, licences, consents or permissions that the Beneficiary is required to hold in order to validly request and accept donations and to have TGBC request and accept donations on its behalf under this Agreement;
ii. all information provided by the Beneficiary to TGBC and included on the Beneficiary Landing Page or Website:
A. is true and correct;
B. is not misleading or deceptive, defamatory or obscene;
C. does not infringe a third party's intellectual property rights; and
D. may be lawfully published by TGBC;
iii. all relevant information has been provided by the Beneficiary to TGBC and included on the Beneficiary webpage or Website; and
iv. it has the authority to enter into this Agreement, and be bound by the warranties contained in this clause 9.
(a) TGBC will indemnify and keep the Beneficiary indemnified against all claims, costs, expenses, damages, liability or loss arising directly in relation to a breach of the obligation to make payment in accordance with clause 3.4.
(b) The Beneficiary will indemnify and keep TGBC indemnified against all claims, costs, expenses, damages, liability or loss arising in relation to:
(a) a breach of the warranties in clause 9 and
(b) a claim made by any third person in connection with or arising out of the Beneficiary's use of the Services other than in accordance with this Agreement.
11 LIMITATION OF LIABILITY
The liability of TGBC for a breach of this Agreement, statutory cause of action, common law or tort (including negligence) in any way is limited as follows:
(a) TGBC will not be liable for the amount of any loss or damage suffered by the Beneficiary for death or personal injury or damage to any real property or chattels caused by negligent or wrongful acts or omissions of TGBC;
(b) TGBC will not be liable for indirect or consequential loss or damage, notwithstanding anything else in this clause 11 or any other clause of this Agreement; and
(c) Otherwise in respect of all other claims or liability to the Beneficiary for all other proven loss and damage is limited, for an aggregate of all claims, to the amounts paid or payable by the Beneficiary to TGBC under this Agreement.
(b) The Beneficiary agrees that it will treat all personal information collected under clause 3.3 in accordance with the Australian Privacy Principles.
This Agreement will apply from the date of execution and continue until terminated by a party in accordance with clause 14.
14.1 Basis of Termination
(a) A party may terminate this Agreement by giving the other party 28 days written notice.
(b) A party may immediately terminate this Agreement:
i. following a breach by the other party of any material provision of this Agreement; or
ii. in the event the other party is connected with any occurrence of insolvency, bankruptcy or dissolution of the other party.
(c) TGBC may immediately terminate this Agreement if the Beneficiary:
i. loses its charitable status; or
ii. engages in conduct that TGBC, in its absolute discretion, considers is harmful to TGBC's reputation.
(d) The Beneficiary may immediately terminate this Agreement if TGBC engages in conduct that the Beneficiary, in its absolute discretion, considers is harmful to the Beneficiary's reputation.
14.2 Consequences of Termination
Within 28 days after termination of this Agreement, TGBC will
(a) cease accepting Donations;
(b) remove the Beneficiary webpage and all information relating to the Beneficiary from the Website;
(c) provide a final management account statement setting out all information referred to in clause 3.2(b); and
(d) pay the balance of the final management account to the bank account nominated by the Beneficiary.
The provisions of this Agreement will be deemed to be severable and any invalidity of any provision of this Agreement will not affect the validity of the remaining provisions of this Agreement.
16 FORCE MAJEURE
In case either of the parties is totally or partially unable to fulfil one or more of the contract obligations as a result of acts or occurrences beyond the control, though partial, of the party involved such as, but not limited to, actions, omissions, impositions by local federal or national government authorities, fire, flood, earthquake and other natural disasters, Acts of God, war, revolution, strike, fuel shortages, shortage of raw materials, the party involved will be totally or partially relieved from fulfilling its contract obligations during the period of force majeure, provided that the party involved notifies the other party of the circumstances as soon as reasonably possible.
17.1 Form of Notice
Any notice or communication required or permitted to be made or given by the parties under this Agreement must be sent in writing to the addresses set out below or to such other addresses as may be given by written notice in accordance with this clause.
(a) In the case of TGBC:
i. Address: PO Box 1342 Sunnybank Hills QLD 4109
ii. Email: firstname.lastname@example.org
(b) In the case of the Beneficiary:
i. Address: set out in the application form
ii. Email: set out in the application form
17.2 Effect of Notice
A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
17.3 Notices sent by post
If addressed by post, a letter is taken to be received:
(a) In the same country on the third day after posting; or
(b) If posted overseas, on the seventh day after posting.
An email is taken to be received at the time shown in a delivery confirmation report generated by the sender's email system.
18 VARIATIONS TO AGREEMENT
TGBC may make modifications, alterations, changes or variations of any term or condition of this Agreement, by notifying the Beneficiary in writing of the details of the amendment or modification. Any modification or change to the Agreement will take effect after a period of 14 days has elapsed from the date when the Beneficiary is notified of the modification or change. The Beneficiary may not make any changes or modifications to any term or condition of this Agreement without TGBC's prior written consent.
19 GOVERNING LAW
This Agreement is governed by and is to be construed in accordance with the laws in force in the State of Queensland, Australia. Each party irrevocably and unconditionally submits to the non- exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those Courts.
20 FEES AND BANK FEES
(a) In the event that the organisation wants to utilise the PayPal donation portal a processing and administration fee of 5% plus PayPal costs will be administered to the donation.
(b) The donation will be sent net of fees to the beneficiary within 15 days of the last day of each month TGBC must provide the Beneficiary with a valid tax invoice that includes a statement from one of its officers, being the officer in charge of accounting or another responsible executive, that the sum of Fees calculated by TGBC as payable is correct and showing how the Fees are calculated.
(c) The Donation monies less the Fees are sent within 15 days after the beginning of the next month by electronic transfer.
21 ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties and there are no other oral undertakings, warranties or agreements between the parties relating to the subject matter of this document.