Terms and Conditions | NPO Pheniks

NPO PHENIKS Terms and Conditions for Charities

Please read these Terms and Conditions carefully. By applying to be (and continuing to be) a member of the NPO Pheniks platform, each charity and similar organisation (each a “Charity” for the purposes of these Terms and Conditions) is agreeing to these Terms and Conditions. If the Charity does not wish to be bound by these Terms and Conditions, the Charity should not continue to use or access any of the NPO Pheniks Verviers (as defined below).

NPO Pheniks operates its business in a number of countries and Sections 1 to 15 of these Terms and Conditions (the “core terms”) apply to all Charities, wherever they are located.

NPO Pheniks is a trading name of the local NPO Pheniks entity as set out in the country specific terms. NPO Pheniks operates various online tools and services including a website at www.npopheniks.co.uk which allows members to create fundraising pages, to donate to those pages and for Charities to access data about those pages .The Terms and Conditions govern the Charity’s use of the NPO Pheniks Services.

NPO Pheniks may change or update these Terms and Conditions from time to time. The current version of the Terms and Conditions will be available on www.npopheniks.co.uk is the Charity’s responsibility to access and check these Terms and Conditions whenever the Charity accesses or uses the NPO Pheniks Services. The latest version of these Terms and Conditions will govern any future usage by the Charity of the NPO Pheniks Services.

1. Term & Membership

1.1 For the purposes of these Terms and Conditions, “Commencement Date” shall mean the date from which the Charity or Organisations is notified that the Charity has been successfully registered to use the NPO Pheniks Services (which shall be at NOO Pheniks’s sole discretion). NPO Pheniks shall provide the NPO Pheniks Services to the Charity and the Charity shall comply with these Terms and Conditions until the membership is validly terminated.

1.2 Membership is for a minimum period of one (1) month from the Commencement Date and thereafter from month to month until terminated by written notice by either party to the other, in accordance with Section 10.1 below. Please see Section 10 of these Terms and Conditions for further termination provisions.

2. NPO Pheniks Obligations

Donations and Charity Account

2.1 NPO Pheniks will maintain the Charity Funds Account at Bank of UK ( Barclays Bank )

2.2 NPO Pheniks will operate the NPO Pheniks Services so that donors can make online donations by credit or debit card, or by any other payment method made available by NPO PHENIKS through a Fundraising Page set up for the Charity or on the Charity’s area on the NPO Pheniks website.

For all Charities, use of the NPO Pheniks Services is on an “as is” and “as available” basis. Whilst NPO Pheniks cannot promise trouble-free use, experience suggests that the NPO Pheniks Services are reliable.

2.3 NPO Pheniks will set up arrangements to ensure that all donations received by NPO Pheniks (after deduction of bank processing charges, NPO Pheniks’s transaction fees and applicable sales taxes, as described in Section 6) are:

2.3.1 paid into a Charity Funds Account and are held for the Charity; and

2.3.2 paid out by automated bank transfer from the Charity Account to the Charity’s validated bank account.

2.4 NPO Pheniks will provide information systems design, testing and verification standards and requirements in accordance with good industry practice to ensure that donors’ credit cards and debit cards are debited and the Charity Funds account is credited in a secure manner.

Support and Donation Acknowledgements

2.5 NPO Pheniks will send prompt e-mail acknowledgments to donors in respect of each donation made to the Charity via the NPO Pheniks Services.

2.6 NPO Pheniks will respond to fundraisers’ and donors’ account enquiries that it receives.

Personal Information

2.7 NPO Pheniks will capture personal information including but not limited to the fundraiser’s and the donor’s name, title, address and email address (“Personal Information”) at all times in accordance with local privacy laws, regulatory requirements and guidance as updated and amended from time to time including such laws, regulatory requirements and guidance applicable in the territory where donors and fundraisers access the Website (“Local Privacy Laws”) and protect and secure such information. For more details of how NPO Pheniks operates its services, processes Personal Information and uses cookies. For the avoidance of doubt this Section 2.7 does not imply that NPO Pheniks will share such information with the Charity, but selected Personal Information shall be shared with the Charity in accordance with Section 2.9 below.

2.8 To the maximum extent possible under applicable law, NPO Pheniks will abide by the instructions of all fundraisers and donors in respect of their Personal Information.

2.9 Subject to the Charity paying the Fees in accordance with Section 6 below, NPO Pheniks will provide all Charities with access to a secure, password- and PIN-protected account on the Website where the Charity can view and download details of donations made to the Charity, details of payments made by NPO Pheniks to the Charity and updates on fundraiser and donor details (“Charity Account”), all such information to be provided by NPO Pheniks in strict compliance with:

2.9.1 the applicable Local Privacy Laws as they apply to the relevant fundraisers and donors;

2.9.2 the privacy laws referred to in the country specific terms relevant to the Charity; and

2.9.3 any other privacy laws, regulatory requirements and guidance which are relevant to the processing of Personal Information throughout the world,

2.10 NPO Pheniks will not sell, trade or rent Personal Information to third parties.

Records and Audit Requirements

2.11 NPO Pheniks will keep proper records of all donations and income received and expenses incurred for such period as may from time to time be required by the applicable local governmental revenue body, and maintain records which relate to the Charity and the performance of the obligations hereunder (to which the Charity may, subject to the Global Privacy Laws, have access and take photocopies of at its own expense on request and at reasonable times).

2.12 NPO Pheniks will, via the Charity Account, provide each Charity with the ability to download reports outlining: the number of donations received, the value of the donations received, and (where applicable) the transaction fees deducted from the total donations in accordance with Section 6.

Site Maintenance and Miscellaneous

2.13 NPO Pheniks will comply at all times with all applicable laws and applicable authority, licence, permit or registration requirements.

2.14 NPO Pheniks will undertake planned maintenance and upkeep of the NPO Pheniks Services.

Intermediary

2.15 NPO Pheniks , as operator of the NPO Pheniks Services, acts as an intermediary between the Charity and the individual users of the NPO Pheniks Services. Whilst the Charity and the individual user information resides on the NPO Pheniks Services, NPO Pheniks does not check or exercise any editorial control over the content of such information, save as required by applicable local laws. In the event that NPO Pheniks is made aware of or has knowledge of any unlawful activity or information on the NPO Pheniks Services, NPO Pheniks shall promptly act to remove or disable access to the information. NPO Pheniks shall not be liable to the Charity as a result of its role as intermediary and is not required to notify the Charity of any such removal or disablement of access to information.

3. Charity’s Obligations – General

3.1 The Charity will ensure that all content (including text and images) supplied by it to NPO Pheniks for display on the NPO Pheniks Services or which it itself posts on any of the NPO Pheniks Services (including, in each case, links to any third party sites or content) will not violate any law or regulation or be defamatory, misleading, obscene or breach any intellectual property rights of a third party or breach any right of or duty owed to a third party.

3.2 The Charity will provide written confirmation to NPO Pheniks of any donations (including any Gift Aid reclaimed on the same) that it permits NPO Pheniks to reimburse to the donor. NPO Pheniks will not permit refunds without prior written consent from the Charity, unless required by applicable local laws.

3.3 Subject to local applicable laws, the Charity will permit NPO Pheniks to deduct such refunds, and any chargebacks arising, from subsequent donations payable to the Charity. Should no donations arise within one (1) week of the refund or chargeback NPO Pheniks reserves the right to invoice the Charity for the refunds and chargebacks, and the Charity agrees to settle that invoice within one (1) month of the invoice date.

3.4 The Charity will maintain the necessary authority, permit, licence, consent, approval and registration for it to fundraise (and, where applicable, for NPO Pheniks to fundraise on its behalf) in accordance with applicable local laws and if NPO Pheniks needs any such authority, permit, licence, consent, approval or registration for it to fundraise on behalf of the Charity then the Charity will, at no cost to NPO Pheniks , provide all such assistance as NPO Pheniks reasonably requires to assist NPO Pheniks with the same.

3.5 The Charity will inform NPO Pheniks immediately if, for any reason, it:

3.5.1 ceases to carry on operating for charitable purposes;

3.5.2 is found to be engaged in any corrupt or immoral practices;

3.5.3 is subject to any investigation or inquiry which could result in the necessary authority, permit, licence, consent, approval and/or registration for it to operate as a charity in accordance with applicable local laws being suspended, revoked or withdrawn; or

3.5.4 ceases to have the necessary authority, permit, licence, consent, approval and/or registration for it to operate as a charity in accordance with applicable local laws.

3.6 The Charity will promptly provide any information reasonably requested by NPO Pheniks in order for NPO Pheniks to be able to provide the NPO Pheniks Services to the Charity effectively.

3.7 The Charity will ensure that, in each case where a donor is advised that his/her donation will be used for a specific purpose, appeal or outcome (including but not limited to all NPO Pheniks Campaign pages), the donation is used only for that specific purpose, appeal or outcome.

3.8 The Charity will comply with all applicable laws and regulations in its use of the NPO Pheniks Services.

3.9 The Charity will maintain the security and confidentiality of any passwords and PINs provided by NPO Pheniks for the purpose of accessing the Charity Account and shall not share these passwords or PINs with any third party. NPO Pheniks shall not be liable for and accepts no responsibility for misuse of any Charity Account.

3.10 The Charity represents, warrants and undertakes to NPO Pheniks that:

3.10.1 these Terms and Conditions have been accepted and agreed to by a sufficient number of its duly authorised representatives; and

3.10.2 any documents provided to NPO Pheniks as part of the Charity’s application for registration or maintenance of such registration) have been or shall be executed by a sufficient number of its duly authorised representatives.

4. Charity’s Obligations – Data Protection and Direct Marketing

4.1 To the extent that the Charity’s use of the NPO Pheniks services results in access to any Personal Information, the Charity will:

4.1.1 at all times assist with the responsibilities of NPO Pheniks as a data controller responsible for determining how the Personal Information is processed under the provisions of the Global Privacy Laws;

4.1.2 not do, or cause or permit to be done, anything which may result in a breach by NPO Pheniks of the Global Privacy Laws and comply with all reasonable instructions from NPO Pheniks relating to the processing by the Charity of such Personal Information;

4.1.3 comply with the Local Privacy Laws in respect of the Charity’s collection, use, disclosure or processing of the Personal Information;

4.1.4 abide by the lawful instructions of all data subjects in respect of the Personal Information and not do anything to compromise the security of such information;

4.1.5 not sell, trade or rent Personal Information to third parties;

4.1.6 hold the Personal Information securely and not disclose it to anyone other than NPO Pheniks , as agreed to by the data subject and/or as permitted by Global Privacy Laws;

4.1.7 implement adequate security, technical and organizational measures against all unauthorized, unlawful or accidental access, processing, use, erasure, loss or destruction of, or damage to, Personal Information in accordance with Global Privacy Laws, and abide by NPO Pheniks’s reasonable requirements to ensure the security of the Personal Information as notified to the Charity from time to time;

4.1.8 use Personal Information appropriately and only for the specific purposes as notified to the Charity from time to time and

4.1.9 not retain any Personal Information for longer than is necessary.

4.2 In addition to its obligations under Section 4.1 above, if the Charity’s use of the NPO Pheniks services results in access to any Personal Information and the fundraiser or donor has agreed to receive marketing communications from the Charity (as will be reflected in the Charity Account), the Charity will only send marketing communications to the fundraiser or donor to the extent that the fundraiser or donor:

4.2.1 has indicated their preference to receive such communications; and

4.2.2 has not indicated a preference or otherwise asked to stop receiving such communications. This includes the fundraiser or donor clicking an unsubscribe link or registering with any applicable preference service (which the Charity agrees it shall, to the extent it is required to do so, check before sending any communications).

Where use of the NPO Pheniks services results in access to any Personal Information relating to a fundraiser but that fundraiser has not agreed to receive marketing communications from the Charity, as will be reflected in the Charity Account, the Charity shall only communicate with that fundraiser in relation to their specific fundraising page and shall not (unless separate consent is obtained by the Charity) communicate with that person for any other purpose (including marketing).

4.3 The Charity shall be liable for and indemnify NPO Pheniks , its successors and assigns against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by NPO Pheniks which arise (directly or indirectly) out of or in connection with any breach of Sections 4.1 or 4.2 by the Charity.

5. Intellectual Property Rights and Licence

5.1 All intellectual property rights in the NPO Pheniks Services and any material (including text, photographs and other images, trademarks and logos) contained in the NPO Pheniks Services are either owned by NPO Pheniks or have been licensed to NPO Pheniks by the rights owner(s) for use as part of providing the NPO Pheniks Services. Nothing in these Terms and Conditions shall operate as an assignment of any such intellectual property rights. NPO Pheniks hereby grants to the Charity a personal, non-exclusive, non-transferable, royalty-free licence for the Charity to use the NPO Pheniks Services for the sole purpose for which they are provided and in accordance with these Terms and Conditions.

5.2 The Charity hereby grants to NPO Pheniks , its affiliates and its partners a non-exclusive, worldwide and royalty-free licence to use its name and logo in connection with the performance and promotion of the NPO Pheniks Services.

5.3 The licences in Sections 5.1 and 5.2 shall terminate automatically on valid termination of the Charity’s membership in accordance with Section 10 below.

5.4 The Charity shall be liable for and shall indemnify NPO Pheniks , its successors and assigns against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by NPO Pheniks which arise (directly or indirectly) out of or in connection with any third party demand, claim or action alleging infringement of the third party’s intellectual property rights.

6. Fees

In consideration of using the NPO Pheniks Services, the Charity shall pay the subscription and transaction fees set out in this Section 6 to NPO Pheniks together with any other fees set out in the country specific terms below (together, the “Fees”).

Subscription Fees

6.1 A subscription fee may apply, as set out in the relevant country specific terms. If applicable, the subscription fee shall be payable monthly via automated bank transfer. NPO Pheniks retains the right to suspend the Charity’s use of the NPO Pheniks Services at any time should collection of this amount not be successful for any reason or the Charity does not pay any other amount due to NPO Pheniks under these Terms and Conditions for any other reason. In this situation, the Charity will only be granted access to the NPO Pheniks Services upon receipt of any outstanding subscription fees.

Transaction Fees

6.2 The Charity shall pay to NPO Pheniks a transaction fee on each donation which is comprised of:

6.2.1 the cost to access the necessary payment card infrastructure via a payment gateway or other electronic service to process payments on behalf of the Charity which is determined at market rates and varies by payment type and payment processor (“Payment Processing Fee”); and

6.2.2 except where otherwise specified in the relevant country specific terms below, a platform fee of a percentage of the gross donation (“Platform Fee”).

6.3 The Charity hereby authorises NPO Pheniks subject to applicable local laws, to deduct the Platform Fee (if applicable) together with applicable sales taxes and the Payment Processing Fee from each donation before paying the balance to the Charity in accordance with Section 2.3 above.

6.4 The NPO Pheniks Services may include an option for a donor to pay the Platform Fee instead of the Charity. If a donor chooses this option, the full amount of the donation will be paid to the Charity after the deduction of the applicable Payment Processing Fee (and applicable sales taxes), and NPO Pheniks will retain the Platform Fee paid by the donor.

6.5 For more information about NPO Pheniks transaction fees, please contact NPO Pheniks Director .

6.6 NPO Pheniks may offer the Charity the option of implementing a deep link to power its fundraising activities (for example, on its website or in emails to donors) (“Deep Link”), which will permit donations to be processed via NPO Pheniks’s payment services without the deduction of any Payment Processing Fees (“Giving Checkout Offer”). Instead, a donor will be given the option of making a voluntary contribution to NPO Pheniks to cover the costs of operating the fundraising platform, including the payment processing charges. If the Charity participates in the Giving Checkout Offer, NPO Pheniks will not charge the Charity the Payment Processing Fees on any donation processed via the Deep Link, and accordingly NPO Pheniks will pay the full amount of each such donation to the Charity after deducting any applicable Gift Aid Service Fees. NPO Pheniks reserves the right to withdraw the Giving Checkout Offer (on a standard or individual basis) at any time in respect of any or all Charities and recommence the charging, and the deduction, of the Payment Processing Fees on all such external donations, subject to notifying the relevant Charity or Charities in advance. For the avoidance of any doubt, if the Charity participates in the Giving Checkout Offer, it will still be charged the Payment Processing Fees on donations processed on its behalf on the website.

7. LIABILITY

7.1NPO PHENIKS DOES NOT, AND NOTHING IN THESE TERMS AND CONDITIONS SHALL ACT TO, EXCLUDE OR LIMIT NPO PHENIKS’S OR THE CHARITY’S LIABILITY: (I) FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE; (II) FRAUD; (III) UNDER ANY INDEMNITY CONTAINED IN THIS AGREEMENT; OR (IV) ANY OTHER LIABILITY WHICH MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED.

7.2 The Charity agrees that the NPO Pheniks Services are provided on an “as is” and “as available” basis and that its use of the NPO Pheniks Services is at the Charity’s sole risk. NPO Pheniks does not guarantee continuous, uninterrupted, error or virus free or secure access to our Services and operation of the NPO Pheniks Services may be interfered with by numerous factors outside of NPO Pheniks’s control. On that basis, except as expressly set out in these Terms and Conditions, NPO Pheniks does not enter into conditions, warranties or other terms in relation to the NPO Pheniks Services, and they are excluded to the fullest extent permissible by law.

7.3 Subject to Section 7.1, in no event shall NPO Pheniks be liable (whether for breach of contract, negligence or for any other reason) for any loss or damage which the Charity may claim to have suffered by reason of its (or any donor, fundraiser or other user) accessing and use of (or inability to access and use) the NPO Pheniks Services or any part of them, including (but not limited to) loss of profits, exemplary or special damages, loss of sales, loss of donations, loss of Gift Aid, loss of revenue, loss of goodwill, loss of any software or data, loss of bargain, loss of opportunity, loss of use of computer equipment, software or data, loss of or waste of management or other staff time, or for any indirect, incidental consequential or special loss, however arising.

7.4 NPO Pheniks may change the format and content of the NPO Pheniks Services from time to time. In particular, the Charity should refresh its browser each time it visits the Website to ensure that the Charity downloads the most up to date version of the Website, including the latest version of these Terms and Conditions.

7.5 Subject to the other terms of this section 7, the total aggregate liability of NPO Pheniks arising under or in connection with the Charity (or any donor, fundraiser or other user) accessing and using the NPO Pheniks Services and inability to access or use the NPO Pheniks SERVICES shall be limited to the total fees paid under these Terms and Conditions by the Charity during the preceding 12 months period ending on the date the circumstances giving rise to the liability arose.

7.6 Some countries do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages which means that some of the above limitations may not apply to Charities based on those countries. In these countries, NPO Pheniks’s liability will be limited to the greatest extent permitted by law

8. Insurance

Each party must at all times maintain such adequate insurances as are required by local applicable laws or as are customary for the parties to an agreement of the nature of these Terms and Conditions to maintain in the local marketplace.

9. Confidential Information

During the term of the Charity’s membership and for a period of seven (7) years thereafter, the parties shall treat as strictly confidential all information about the other which has been acquired as a result of the use of NPO Pheniks’s Services and which is not in the public domain. No party shall use or disclose to any third party such information belonging to the other party without that party’s prior written consent, except where required to do so by applicable local law or regulatory or governmental body. This Section 9 shall survive termination of these Terms and Conditions

10. Termination

10.1 In accordance with Section 1 above, notice of cancellation should be received no later than the 5th day of the final month that a Charity wishes to remain as a member Charity (or the preceding Friday where the 5th day falls on a weekend or national holiday) and all notices from a Charity must include the Charity’s full name and registered charity number. Such notice shall be deemed to have been received within five (5) business days if posted (att: finance department) and within twenty-four (24) hours if emailed .Cancellation notices received after the 5th day of a given month (or the preceding Friday, where relevant) will usually be processed the same month, but this cannot be guaranteed. Please note that cancelling a direct debit that has been set up to pay the subscription fee described in Section 6 is not sufficient to cancel a Charity membership; so that NPO Pheniks can process a cancellation request accurately and on time, post or email notice must also be provided to NPO Pheniks in accordance with this Section 10.1.

10.2 In addition to the rights of each party under Sections 1 and 10.1 above, each party will have the right to terminate the use (and provision) of the NPO Pheniks Services with immediate effect by notice in writing when, and at any time after, the other party commits an act of default (as defined below) or commits any act or threatens to do any act the direct result of which is to damage or is likely to damage the reputation of the other party. An act of default by either party shall occur if:

10.2.1 the party is wound up or a liquidator or examiner is appointed;

10.2.2 an administration order is made in relation to the party or a receiver or an administrative receiver is appointed over or an encumbrancer takes possession of or sells all of the party’s assets;

10.2.3 the party makes an arrangement or composition with its creditors generally;

10.2.4 the party ceases or threatens to cease to carry on its business;

10.2.5 any event analogous to the events listed in Sections 10.2.1 – 10.2.4 (inclusive) occurs in any territory in relation to the party or any step towards any such event or analogous event is taken by any person and not promptly dismissed or reversed.

10.3 In addition to its rights under Sections 1, 10.1 and 10.2 above, in the event that the Charity materially breaches any of these Terms and Conditions or if NPO Pheniks reasonably considers that any of the events listed in Sections 3.5.1, 3.5.2, 3.5.3 or 3.5.4 apply (or are likely to apply), NPO Pheniks may, at its sole discretion, without notice and with no liability to the Charity do one or both of the following:

10.3.1 suspend or terminate the Charity’s access to the NPO Pheniks Services;

10.3.2 suspend any payments due to the Charity under Section 2.3.

10.4 To the maximum extent permitted by applicable law NPO Pheniks , in any event, reserves the right to withdraw the NPO Pheniks Services (or any part of them) from public access at any time, at its complete discretion.

11. Suspension of NPO PHENIKS Services

NPO Pheniks may, in its sole discretion, without liability to the Charity, suspend the operation of any of the NPO Pheniks Services in full or in part at any time, for example but without limitation for repair or maintenance work or in order to update or upgrade the contents or functionality of the NPO Pheniks Services from time to time.

12. Notices and Entire Agreement

12.1 Notices referred to above should be made in writing and sent by registered post to the addresses given in the applicable country specific terms or, in the case of notices to be sent by or to NPO Pheniks by email .

12.2 These Terms and Conditions represent the entire agreement between NPO Pheniks and the Charity and supersede and replace any other representations made orally or in writing.

13. Third Party Rights

A person who is not a party to these Terms and Conditions has no right to enforce any term of these Terms and Conditions.

14. Grievances from employees, complaints handling process and dispute resolution

Grievances from employees

14.1 Any grievances by employees of either party will be dealt with by that party.

Complaint handling procedure

14.2 NPO Pheniks will promptly respond to any complaints from fundraisers or donors concerning the NPO Pheniks Services.

14.3 NPO Pheniks will maintain records relating to complaints it receives.

Dispute resolution

14.4 If a dispute arises under these Terms and Conditions or concerning its subject matter, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute. The nominated senior representatives of both parties must meet within five business days of the notice and try to resolve the dispute in good faith. If such a meeting does not take place or if five business days after the meeting the dispute remains unresolved, either party may pursue its rights at law.

14.5 Despite the existence of a dispute, each party must continue to perform its obligations under these Terms and Conditions.

14.6 Sections 14.4 and 14.5 do not restrict or limit the right of either party to obtain interim, protective or interlocutory relief, or to immediately terminate these Terms and Conditions where these Terms and Conditions provide such a right.

15. Governing Law

These Terms and Conditions and any contractual or non-contractual claim arising out of or in connection with a Charity’s use of the NPO Pheniks Services are governed by the law, and subject to the jurisdiction of the courts, of the country set out in the country specific terms.

The following provisions apply in addition to (and in the event of any conflicts will prevail over) the core terms, and section numbers below relate to the corresponding sections in the core terms:

Donations and Charity Funds Account

2.3 NPO Pheniks will set up arrangements to ensure that all Gift Aid received from HMRC is paid in accordance with Section 2.3 of the core terms (subject to having received the necessary information from HMRC to allocate that Gift Aid). Any Gift Aid received shall be paid out to each Charity once per month, normally in the same week that NPO Pheniks receives the Gift Aid from HMRC. Where Gift Aid is claimed in respect of a donation, processing charges and NPO Pheniks transaction fees (as described in Section 6) will be deducted from the Gift Aid reclaimed amount in priority to a deduction from the donation itself (or any subsequent donation). Where the Charity has not appointed the designated NPO Pheniks reclamation tax officers as officers of the Charity for the purpose of reclaiming Gift Aid due to the Charity and fails to sign and return to NPO Pheniks a completed Gift Aid reclaim form within twenty-one (21) days of receipt, NPO Pheniks is hereby authorised to deduct the transaction fees (if any) together with payment processing charges from the donation (or any subsequent donation).

Personal Information

2.9 In addition, the Charity can view and download updates on Gift Aid reclaims if it has a Charity Account.

2.9.2 The applicable Local Privacy Laws in the United Kingdom include, without limitation, the Data Protection Act 2018, the retained EU law version (converted by section 3 of the European Union (Withdrawal) Act 2018) of the General Data Protection Regulation (EU) 2016//679 (UK GDPR) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), in each case, as amended, extended or re-enacted from time to time and including all subordinate legislation made from time to time thereunder.

Records and Audit Requirements

2.11 In addition, NPO Pheniks will keep proper records of all tax reclaims for the relevant period.

Miscellaneous

2.13 The applicable local fundraising laws which NPO Pheniks are required to comply with in the United Kingdom shall include, without limitation, the Charities Act 1992, the Charities Act 2011 and the Charitable Institutions (Fundraising) Regulations 1994.

PCI Compliance

2.14 NPO Pheniks has implemented PCI standards regarding secure storage of data and strong access control to achieve PCI DSS for the NPO Pheniks Services.

Gift Aid

2.19 NPO Pheniks will offer all donors who are UK taxpayers the option of making donations in a manner that makes them eligible for Gift Aid reclaims.

2.20 On behalf of the Charity (but provided that the Charity has appointed the designated NPO Pheniks reclamation tax officers as officers of the Charity for the purpose of reclaiming Gift Aid due to the Charity and signed and returned to NPO Pheniks a completed Gift Aid reclaim form), and subject to the Charity being recognised by HMRC as a charity or community amateur sports club (CASC) and fulfilling all applicable HMRC or other requirements for Gift Aid eligibility, NPO Pheniks will make Gift Aid reclaims monthly from HMRC in respect of eligible donations (i.e. donations where the donor has satisfied HMRC’s requirements and made a Gift Aid declaration).”

3. Charity Obligations – General

3.2 The Charity will provide written confirmation to NPO Pheniks of any related Gift Aid reclaims.

3.3 In circumstances where no Gift Aid reclaims arise within one (1) week of a refund or chargeback, NPO Pheniks reserves the right to invoice the Charity for the refunds and chargebacks, and the Charity agrees to settle that invoice within one (1) month of the invoice date.

The following shall be added at the end of Section 3:

“3.11 The Charity shall not provide the donor with any gift, prize or any other form of incentive in connection with the making of any donation by the donor.

3.12 Should HMRC or any other relevant body make enquiries with NPO Pheniks regarding Gift Aid, including the Charity’s eligibility for Gift Aid reclaims, the Charity shall provide all reasonable assistance requested by NPO Pheniks in order to resolve HMRC’s enquiries or, if requested by NPO Pheniks liaise directly with HMRC or the other relevant body.

3.13 The Charity acknowledges and agrees that NPO Pheniks is required to maintain records of Gift Aid and authorises NPO Pheniks to maintain such records for as long as considered necessary by NPO Pheniks

3.14 The Charity will include, in all advertising materials promoting the text giving service, the following message: “Texts are charged at your mobile phone operator’s standard rate. The charity will receive 100% of your donation. You must be 16 or over and please ask the bill payer’s permission.

6. Fees

Subscription Fees

6.1 No monthly subscription fee is currently payable by Charities that join NPO Pheniks on the starter plan, regardless of donation volume, for as long as they remain on the starter plan. However, the functionality provided by NPO Pheniks as part of the starter plan is more limited than for the paid-for plans, as described in these Terms and Conditions. For all other UK Charities, and from 1 September 2016, the monthly subscription fee payable by each Charity depends on the total amount of donations (including any Gift Aid reclaimed on those donations) raised for the Charity via the NPO Pheniks Services in the period 1 July 2015 to 30 June 2016 (and the corresponding period in each subsequent year) (“Total Fundraising”), as follows:

(i) If the Charity’s Total Fundraising is less than or equal to GBP £15,000, the monthly subscription fee is GBP £15 (plus VAT).

(ii) If the Charity’s Total Fundraising is greater than GBP £15,000, the monthly subscription fee is GBP £39 (plus VAT).

When joining NPO Pheniks a Charity’s monthly subscription fee will be GBP £15 (plus VAT) unless the Charity joins NPO Pheniks on (and remains on) the starter plan or a waiver of the fee is agreed otherwise by NPO Pheniks

If a starter plan Charity’s Total Fundraising increases such that it is eligible for the GBP £15 (plus VAT) per month plan, NPO Pheniks will offer the Charity the opportunity to upgrade from time to time but no upgrade shall be mandatory.

The applicable subscription fee is payable by direct debit unless otherwise agreed by NPO Pheniks and the Charity agrees to provide the details required in order for the direct debit to be set up and maintained. The Charity agrees that it shall only cancel the direct debit where that cancellation is done in connection with the Charity validly terminating its relationship with NPO Pheniks under Section 10 of the core terms.

Transaction Fees

6.2 The Charity shall pay to NPO Pheniks a transaction fee on each donation which is comprised of:

6.2.2 when a donation is eligible for Gift Aid reclaim and JustGiving processes such Gift Aid reclaim on behalf of the Charity, a transaction fee of 5% of the reclaimed Gift Aid (“Gift Aid Service Fee”).

6.3 The Charity hereby authorizes NPO Pheniks subject to applicable local laws, to deduct the Payment Processing Fee and the Gift Aid Service Fee together with applicable taxes from each donation (or, as applicable, the reclaimed Gift Aid) before paying the balance to the Charity in accordance with Section 2.3 of the core terms above.

6.4 No platform fee will be charged to the Charity on the donation other than the Payment Processing Fee and the Gift Aid Service Fee. Instead, a donor will be presented with the option of making a voluntary contribution to NPO Pheniks for the operation of the NPO Pheniks Services, and any such voluntary contribution made by a donor will be retained by NPO Pheniks

9. Confidential Information

The applicable local laws in the United Kingdom, which may require disclosure of otherwise confidential information, include, without limitation, the Freedom of Information Act 2000 and the Environmental Information Regulations 2004.

15. Governing Law

The governing law for the purpose of Section 15 is the law of England, and the English courts have exclusive jurisdiction.

Additional terms for Charities in Australia and New Zealand

The Charity agrees that NPO Pheniks is authorised to conduct a fundraising appeal jointly with the Charity.

The following provisions apply in addition to (and in the event of any conflicts will prevail over) the core terms, and section numbers below relate to the corresponding sections in the core terms:

1. Term – Membership

For charities in New South Wales – these Terms and Conditions shall continue in force for a minimum period of one (1) month and thereafter from month to month for a period of twelve (12) months unless terminated in accordance with section 10 and, upon the expiry of the twelve (12) month period, a new agreement will be taken to have been agreed upon the same terms as this agreement (as varied from time to time) unless the Charity has notified NPO Pheniks otherwise by two (2) month’s prior notice in writing.

For charities outside New South Wales – the term shall be as set out in the core terms ie Membership is for a minimum period of one (1) month and thereafter from month to month until terminated by written notice by either party to the other, in accordance with section 10.1.

2. NPO Pheniks Obligations

Personal Information

2.9.2 The applicable Local Privacy Laws in Australia include the Privacy Act 1988 (Cth) and the Spam Act 2003. The applicable Local Privacy Laws in New Zealand include the Privacy Act of 2020.

Records and Audit Requirements

2.11 NPO Pheniks will, in relation to each donation that it receives:

2.11.1 maintain records of income and expenditure of all donations either in the English language or so as to enable the records to be readily accessible and readily convertible into writing in the English language;

2.11.2 document particulars of all items of gross income received or receivable;

2.11.3 document particulars of all items of expenditure incurred (including the application or disposition of any income obtained from the appeal);

2.11.4 document particulars of any transactions to which Section 2.11.2 or 2.11.3 above relates; and

2.11.5 provide the Charity with records and particulars set out in Sections 2.11.1 to 2.11.4 above, which must be kept at the Charity’s registered office for a period of 7 years.

Site Maintenance and Miscellaneous

2.13 The applicable local fundraising laws which NPO Pheniks are required to comply with in Australia and New Zealand include the Charitable Fundraising Act 1991 (NSW), the Charitable Collections Act 2003 (ACT), the Collections Act 1966 (Qld), the Collections for Charitable Purposes Act 1939 (SA), the Collections for Charities Act 2001 (Tas), the Fundraising Act1998 (Vic), Charitable Collections Act 1946 (WA) and the Charities Act 2005 (NZ).

5. Intellectual Property Rights and License

5.2 NPO Pheniks will seek approval of the format and text of any advertisement or any notice from the Charity, such approval not to be unreasonably withheld. Where the Charity provides its logo and information about itself to NPO Pheniks for use as part of the NPO Pheniks Services then it will be deemed to have approved their use.

6. Fees

6.1 There is no monthly subscription fee currently payable by Australian and New Zealand charities, however JustGiving retains the right to introduce a subscription fee at any time subject to notifying the Charity in writing at least three months prior to the date the subscription fee first becomes payable.

6.2 NPO Pheniks does not currently charge charities a transaction fee.

6.3 The Charity hereby authorizes NPO Pheniks subject to applicable local laws, to deduct the Platform Fee (if not paid in full by the donor as per Section 6.4) together with applicable taxes and the Payment Processing Fee from each donation before paying the balance to the Charity in accordance with Section 2.3 of the core terms above.

6.4 The NPO Pheniks Services include an option for a donor to pay the Platform Fee instead of the Charity. If a donor chooses this option, the full amount of the donation will be paid to the Charity after the deduction of the applicable Payment Processing Fee (and applicable sales taxes), and NPO Pheniks will retain the Platform Fee paid by the donor.

The following shall be added at the end of Section 6:

“GST

6.6 Amounts payable under or in connection with these Terms and Conditions are GST exclusive. Accordingly:

6.6.1 if the whole or any part of any such amount (including the transaction fees and processing fees described in Section 6) is the consideration for a taxable supply for which the payee is liable to GST, the payer must pay to the payee an additional amount equal to the first mentioned amount multiplied by the rate of GST;

6.6.2 any reference to a cost or expense in these Terms and Conditions excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an input tax credit; and

6.6.3 the payee will provide to the payer a tax invoice at the time of payment.

Terms used in Sections 6.6.1 – 6.6.3 (inclusive) above have the meanings given to them in A New Tax System (Goods and Services Tax) Act 1999 (Cth).”

7. Liability

7.7 The Competition and Consumer Act 2010 (Cth) may confer rights, guarantees and remedies on the Charity in relation to the provision by NPO Pheniks of the NPO Pheniks Services, which cannot be excluded, restricted or modified. NPO Pheniks does not exclude, restrict or modify those rights.

8. Insurance

The applicable insurances in Australia and New Zealand include workers’ compensation insurance as required by law for its employees and professional indemnity insurance.

15. Governing Law

The governing law for the purpose of Section 15 is the law of New South Wales, Australia, and the courts of New South Wales, Australia have non-exclusive jurisdiction.

16. Schools Terms and Conditions

Everyday Hero trading as NPO Pheniks Australia and NPO Pheniks New Zealand (“JustGiving”) shall provide the School, Community or Sporting Association/ Club entity (the Entity) registered above with online fundraising services so that donations can be made online to the Entity by Donors using a credit card, or PayPal account. Fundraisers for the Entity will be able to create individual Fundraising Pages to appeal for online donations to the Entity. NPO Pheniks will provide the Entity with all information required to utilise the online fundraising services and to track online donations to the Entity. NPO Pheniks will offer telephone and email support to the Entity, its fundraisers and donors during business hours. NPO Pheniks will receive donations to the Entity into its Bank Account, and will then pay the Entity by electronic transfer the net payment amount (total of donations received in a fourteen day period after deduction of the Service Fee) every fourteen days into its nominated bank account. NPO Pheniks will keep a separate Management Account for the Entity showing all donations received, service fees deducted and transfer of donations to the Entity. NPO Pheniks will provide the Entity with password-protected access to this account and the names and addresses of the Donors who have made donations.

NPO Pheniks will provide FREE membership from the commencement date. The Entity may terminate the online fundraising services provided by NPO Pheniks to the Entity by giving at least 30 days notice, or either party may terminate immediately in the event of an act that adversely affects the reputation or business of the other party.

Applicable fees are set forth in Section 6 under Additional terms for Charities in Australia and New Zealand.

NPO Pheniks reserves the right to change the Service Fee noted above for certain events promoted by third parties (Premium Events). NPO Pheniks will notify the Entity in advance of any Premium Events and of the relevant Service Fee for that event. The Entity will have the option to withdraw participation from the Premium Event. If the Entity chooses to participate, the Entity shall pay the Service Fee notified to them by NPO Pheniks This fee is deducted from each fortnightly payment before the funds are dispersed to the Entity.

NPO Pheniks will secure and protect the information obtained from all users of the Website in accordance with the Privacy Act 1988 (Cth), Privacy Act 2020, and NPO Pheniks’s privacy policy. The Entity will ensure that the information published on the Website relating to the Entity and its request for donations, including information placed on the website by the Entity’s fundraisers, does not breach any law and does not contain material that is defamatory, pornographic, prohibited, violent or otherwise offensive. The Entity confirms that an authority to fundraise under relevant state or territory fundraising statutes is not required by the Entity for this fundraising activity. Where this authority is required, the Entity will notify NPO Pheniks so that the appropriate paperwork can be executed. In this case, all conditions associated with the applicable fundraising statutes will be complied with, including those relating to the participation and supervision of children in fundraising activities. The Entity confirms it will comply with all relevant laws and policies relating to obtaining parental consent and the appropriate supervision and direction of children participating in fundraising activities. The Entity will not expose NPO Pheniks a to risk of any claim, legal or administrative action. The Entity will take out and maintain all necessary insurances. The Entity grants NPO Pheniks a permission to use and publish on the Website or in related publicity the information that has been provided by the Entity to NPO Pheniks for the Entity’s fundraising purposes. All other information shared between the Entity and NPO Pheniks will be treated confidentially. NPO Pheniks shall indemnify the Entity against any loss or liability arising out of any breach of these terms and conditions by NPO Pheniks The Entity shall indemnify NPO Pheniks against any loss or liability arising out of any breach of these terms and conditions by the Entity.

2. NPO Pheniks Obligations

Personal information

2.9.2 The applicable Local Privacy Laws shall be deemed to be those in the United Kingdom and include, without limitation, the Data Protection Act 2018, the retained EU law version (converted by section 3 of the European Union (Withdrawal) Act 2018) of the General Data Protection Regulation (EU) 2016//679 (UK GDPR) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), in each case, as amended, extended or reenacted from time to time and including all subordinate legislation made from time to time thereunder..

Records and Audit Requirements

2.11 The applicable local government revenue body shall be deemed to be the one in the United Kingdom.

Personal information

Records and Audit Requirements

2.11 The applicable local government revenue body shall be deemed to be the one in the United Kingdom.

6. Fees

Subscription Fees

6.1 There is no monthly subscription fee currently payable by charities in the rest of the world (other than United Kingdom). However, NPO Pheniks retains the right to introduce a subscription fee at any time subject to notifying the Charity in writing at least three months prior to the date the subscription fee first becomes payable.

Transaction Fees

6.2 The Charity shall pay to NPO Pheniks a transaction fee on each donation which is the cost to access the necessary payment card infrastructure via a payment gateway or other electronic service to process payments on behalf of the Charity, determined at market rates and varies by payment type and payment processor (“Payment Processing Fee”).

6.3 The Charity hereby authorizes NPO Pheniks subject to applicable local laws, to deduct the Payment Processing Fee (together with applicable sales taxes) from each donation before paying the balance to the Charity in accordance with Section 2.3 of the core terms above.

6.4 No platform fee will be charged to the Charity on the donation other than the Payment Processing Fee and applicable sales taxes. Instead, a donor will be presented with the option of making a voluntary contribution to NPO Pheniks for the operation of the NpO Pheniks Services, and any such voluntary contribution made by a donor will be retained by NPO Pheniks 15. Governing Law

6.5 NPO Pheniks may offer the Charity the option of implementing a deep link to power its fundraising activities (for example, on its website or in emails to donors) (“Deep Link”), which will permit donations to be processed via NPO Pheniks’s payment services without the deduction of any Payment Processing Fees (“Giving Checkout Offer”). Instead, a donor will be given the option of making a voluntary contribution to NPO Pheniks to cover the costs of operating the fundraising platform, including the payment processing charges. If the Charity participates in the Giving Checkout Offer, NPO Pheniks will not charge the Charity the Payment Processing Fees on any donation processed via the Deep Link, and accordingly NPO Pheniks will pay the full amount of each such donation to the Charity. NPO Pheniks reserves the right to withdraw the Giving Checkout Offer (on a standard or individual basis) at any time in respect of any or all Charities and recommence the charging, and the deduction, of the Payment Processing Fees on all such external donations, subject to notifying the relevant Charity or Charities in advance. For the avoidance of any doubt, if the Charity participates in the Giving Checkout Offer, it will still be charged the Payment Processing Fees on donations processed on its behalf on the website www.npopheniks.co.uk

For the purposes of Section 15, the English courts have non-exclusive jurisdiction.

Various

The applicable local laws for the purposes of Sections 2.13, 2.15, 3.2 to 3.5 (inclusive), 4, 6.3, and 9 shall be deemed to be those of the United Kingdom.

Additional terms for Charities in parts of the world other, Australia and United Kingdom or the United States

The local NPO Pheniks entity and the company who provides the service to Charities based outside of Australia or the UK is NPO Pheniks Limited whose registered office is at Second Floor, Blue Fin Building, 110 Southwark Street, London, SE1 0TA (registration no. 3871904).

The following provisions apply in addition to (and in the event of any conflicts will prevail over) the core terms, and section numbers below relate to the corresponding sections in the core terms: