1 Important Notice
These terms and conditions need to be read together with the Charity Sign Up Form, the Rate Sheet and (if applicable) any agreement for Additional Services (the “Agreement”). These documents constitute the entire understanding between Shout and the Donee regarding the provision of the Services. To the extent of any inconsistency between these terms and conditions and the other documents, then these terms and conditions prevail.
2 Conditions Precedent
2.1 If the Donee is required under any applicable Fundraising Authority or the Fundraising Statutes to:
(a) obtain approval from;
(b) provide relevant notice to; or
(c) request modifications to its Fundraising Authority from,
any Agency or relevant regulatory body as a result of its agreement with Shout for the provision of the Services (including, but not limited to, the provision of Fundraising Campaigns), the Donee will take all necessary steps to obtain the relevant approval or modification, or to provide the relevant notice.
2.2 If clause 2.1 applies, Shout will not provide the Services until the Donee has provided written confirmation that the relevant approval, modification or notice has been obtained or provided.
3 Shout’s Obligations
3.1 Shout will provide the Services in accordance with these terms and conditions.
3.2 The Donee may request that Shout provide Additional Services or a Fundraising Campaign. Any Additional Services and/or Fundraising Campaign will be negotiated in good faith, and agreed in writing by the Parties. Any agreed Additional Services and/or Fundraising Campaign will form part of the Services.
3.3 Shout, in its sole discretion:
(a) may alter, suspend or terminate some, or all of the Services at any time by providing reasonable notice to the Donee in writing;
(b) may reject or remove any Content; and
(c) may edit or modify any Content if, in Shout's reasonable opinion, it is necessary to protect Shout or a related entity of Shout, or would be required to comply with any applicable law, regulation or code.
3.4 Shout may, in its sole discretion, suspend some or all of the Services in order to carry out essential maintenance work to the Shout Website and/or App or any aspect of the Services, or upon the occurrence of an event beyond the control of Shout.
3.5 Shout will endeavour to notify the Donee of any planned suspension of the Services as soon as practicable.
3.6 Shout will transfer to the Donee the funds that have been received from Donors, less any fees and charges in accordance with clause 10:
(a) within 14 days of collection where a Donee is domiciled in, and registered in Western Australia under the Charitable Collections Act 1946(WA) and the Charitable Collections Regulations 1947 (WA); or
(b) on a monthly basis were a Donee is domiciled and registered in a State or Territory other than Western Australia.
3.7 Despite any other clause in these terms and conditions, Shout will not transfer any funds raised unless Shout has received those funds from the Donor.
3.8 Shout will maintain, and provide to the Donee as a monthly report, records of:
(a) all funds received in the course of providing the Services;
(b) the amount of any fees and charges deducted in accordance with clause 10; and
(c) all funds transferred to the Donee.
3.9 Upon request, Shout will provide an annual report from its external auditors, including that the auditors have examined Shout’s records and are satisfied that all funds received from Donors by Shout on behalf of the Donee, and all receipts issued by Shout to Donors on behalf of the Donee, have been reflected in the reports issued by Shout under clause 3.8.
3.10 Within 30 days of termination of the Agreement, Shout will provide to the Donee a final report containing the information in clause 3.8, and where the Donor has authorised it, the name, and contact details of the Donors who have donated to the Fundraising Campaign(s).
3.11 Shout will provide receipts to Donors on behalf of the Donee. Receipts must include the following information:
(a) a statement that the receipt is issued by Shout as Fundraising Agent of the Donee;
(b) the name of the Donee and its ABN;
(c) a statement that the receipt is for a gift;
(d) the date the gift was made;
(e) the amount of the gift;
(f) whether the Donee is a deductible gift recipient.
3.12 Shout will implement reasonable internal controls and safeguards to ensure accountability for all the funds received.
3.13 Shout acknowledges that:
(a) the Donee owns the Intellectual Property Rights in the Content; and
(b) Shout will only use the Content as required to provide the Services or as required by law.
4 Donee’s obligations
4.1 Donee acknowledges and agrees that:
(a) Shout owns the Intellectual Property, including any improvements or goodwill developed through the Donee’s use of the Intellectual Property;
(b) Shout has not, and will not, provide legal, financial or taxation advice to the Donee.
4.2 Donee undertakes to:
(a) provide truthful, accurate and complete information to Shout and ensure that the information held by Shout about the Donee is kept up to date. In this regard, the Donee undertakes to notify Shout as soon as reasonably practicable:
(i) of any changes that impact upon the Donee’s Fundraising Authorities or the Donee's ability to meet its obligations under the Agreement; or
(ii) if the information that the Donee has provided to Shout about the Donee changes;
(b) provide Shout with copies of all proposed marketing and promotional material featuring Shout’s name and/or trademarks for Shout’s prior written approval, which will not be unreasonably withheld or delayed. Donee will provide Shout with no less than 10 Business Days to approve material; and
(c) ensure that the Content will not breach any applicable law or bring, or be likely to bring Shout, the Services, or a related entity of Shout, into disrepute.
4.3 Donee grants to Shout
(a) an irrevocable right to deduct any fees and charges payable under clause 10 from the funds that have been received from Donors prior to paying the Donee the balance under clause 3.6; and
(b) a non-exclusive, non-transferable, royalty-free worldwide licence to use, copy, display, publish, reproduce, adapt and communicate the Content for the duration of the Agreement, for the purpose of providing the Services.
5 Compliance Obligations
5.1 The Donee undertakes and agrees at its own cost to:
(a) comply with any applicable Fundraising Statutes, or Fundraising Authority;
(b) comply with all applicable laws and regulatory requirements (including under the Privacy Act (Cth) 1988), relating to its obligations under the Agreement ;
(c) advise Shout, as soon as practicable, of any changes to its Fundraising Authority, including any subsequent addition, variation or deletion of a condition;
(d) advise Shout, as soon as practicable, of any changes to its charitable status or tax status;
(e) hold and maintain, all necessary insurances including without limitation professional indemnity insurance, worker’s compensation and public liability insurance; and
(f) return any donations to Donors who have addresses in States or in Territories in which the Donee is not legally entitled to collect or solicit donations.
5.2 Shout undertakes and agrees at its own cost to:
(a) comply with any applicable Fundraising Statutes, or Fundraising Authority; and
(b) comply with all applicable laws and regulatory requirements (including under the Privacy Act (Cth) 1988), relating to its obligations under the Agreement.
5.3 Shout undertakes and agrees at its own cost to comply with the requirements of the Payment Card Industry Data Security Standard 3.1 (‘PCI DSS’), and provide reasonable evidence of such compliance with PCI DSS upon request.
6.1 In applying for the Services, the Donee represents and warrants that:
(a) it is authorised to enter into an agreement for the provision of the Services, including any Additional Services;
(b) it is a Charitable Organisation registered with the ACNC;
(c) the information that was, or will be, provided to Shout in the Charity Sign Up Form for the Services is true and correct;
(d) if it has indicated in the Charity Sign Up Form that it is a Deductible Gift Recipient, a Donor will be entitled to claim a tax deduction for any donation made to the Donee that is a Gift;
(e) if it has indicated in the Charity Sign Up Form that it is not a Deductible Gift Recipient, it will be made clear to any potential Donor (including through the Content) that they will not be entitled to claim a tax deduction for any donation made to the Donee;
(f) it has obtained and will keep in place all appropriate insurance policies necessary to fulfil its obligations under the Agreement;
(g) it is using the Services for a charitable purpose or to benefit the community;
(h) it owns the Content or is otherwise entitled to grant Shout the right to use it in accordance with the Agreement; and
(i) the Content does not, and Shout’s use of the Content will not, infringe the Intellectual Property Rights of any person;
6.2 Shout represents and warrants that:
(a) it is authorised to enter into an agreement for the provision of the Services, including any Additional Services;
(b) it has obtained and will keep in place all appropriate insurance policies necessary to fulfil its obligations under the Agreement ; and
(c) it owns the Intellectual Property, or has the appropriate agreements and licences in place in order to use it and provide the Services in accordance with the Agreement.
6.3 A party will notify the other party as soon as practicable upon becoming aware that any of the warranties in clause 6.1, or 6.2 respectively, are no longer, or the party believes are no longer correct or applicable. The parties acknowledge that time is of the essence.
7 Appointment as a Fundraising Agent
The Donee appoints Shout, and, subject to the Donee satisfying the terms of the Agreement, Shout accepts the appointment as, the Donee’s Fundraising Agent for the purposes of collecting donations in accordance with the Agreement
8.1 The parties acknowledge and agree that:
(a) Shout owns, and has all rights and entitlement to access, use and store information and data that is provided to Shout by Donors through the Shout System. For the avoidance of doubt, this includes information that the Donor provides when establishing a profile on the Shout System (as either a regular Donor or as a guest) and making donations to charitable charities;
(b) Donee owns information that has been provided by the Donor when making a charitable donation to the Donee. Should a Donor request to remain anonymous, or request that information not be provided to the Donee, the Donee will not own, or be provided with, that information;
(c) the Donee may access the information referred to in clause 8.1(b) during the term of this Agreement through the Website; and
(d) Shout and the Donee acknowledge that if information falls within both clause 8.1(a) and 8.1(b), Shout and the Donee will have their respective rights as contained within 8.1(a) and 8.1(b) with regards to that information.
9.1 Either party may terminate the Agreement (including any agreement for Additional Services) by providing 60 days prior written notice.
9.2 Shout reserves the right to immediately terminate the Agreement (including any agreement for Additional Services) if Shout determines, in its sole discretion, acting reasonably, that:
(a) any Fundraising Campaign poses a threat to the reputation or wellbeing of Shout, the Shout Website, the App or its other users; or
(b) the Donee is in material breach of the Agreement including, but not limited to, any agreement for Additional Services.
9.3 As soon as practicable after completion of the Fundraising Campaign or termination of the Agreement (including any agreement for Additional Services), Shout will remove the Content from the Shout Website and App and, in the event of termination, cease to provide the Services and account to the Donee in accordance with its obligations under these terms and conditions.
9.4 If the Agreement (including any agreement for Additional Services) is terminated in accordance with this clause 9, all fees and charges payable that have been accrued, but not yet charged, will become payable within 28 days.
10.1 In accordance with the Rate Sheet, the Donee must pay:
(a) commission fees for each donation made to the Donee through the Shout System; and
(b) transaction fees, including merchant services fees(as applicable).
10.2 The Donee agrees and directs Shout to deduct all fees payable from the donations received from Donors prior to transferring the balance to the Donee in accordance with clause 3.6.
10.3 The Donee and Shout will agree in writing any fees payable for any Additional Services.
10.4 Shout may vary existing fees, or introduce new fees, by providing 60 days’ notice to the Donee.
11 Anti-Money Laundering and Trade Sanctions
11.1 Notwithstanding any other provision to the contrary, a party is not obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any AML/CTF Law or economic or trade sanctions laws or regulations applicable to that party, including without limitation the Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Regulations 2011 (Cth).
11.2 Notwithstanding any other provision to the contrary, the Donee agrees to provide any information and documents that are within its possession, custody or control reasonably required by Shout in order for Shout to comply with any AML/CTF Laws.
11.3 If Shout forms the view that, in its reasonable opinion, it is required to disclose information obtained in connection with the Agreement to any person in order to comply with any AML/CTF Laws, the parties agree that, to the extent permitted by law, such disclosure will not breach any duty of confidentiality owed by it to the Donee.
11.4 The Donee represents, warrants and undertakes to Shout that it will not request Shout to take any action, or to perform any obligation, that may cause Shout to be involved in any breach of the AML/CTF Laws. Should the Donee become aware that Shout might, or has, become involved in an act that contravenes the AML/CTF Laws in connection with the Agreement, the Donee must immediately inform Shout of the relevant facts or circumstances.
11.5 The Donee agrees that Shout may disclose any information concerning the Donee to any law enforcement agency or court where required to do so under any law or regulation (including a law or regulation of a foreign place or jurisdiction).
11.6 The Donee acknowledges that any breach of this clause constitutes a material breach and entitles Shout to immediately terminate the Agreement in accordance with clause 9.
12.1 Each party indemnifies the other party, its directors, employees and agents from and against any loss or liability (including legal costs and expenses but excluding indirect loss or consequential loss) suffered or incurred by the other party arising out of, in connection with, a breach of the Agreement.
12.2 Each indemnity in the Agreement survives the expiry or termination of the Agreement.
13 Limitation of Liability
13.1 Shout’s liability to the Donee for any loss or damage arising from the provision of Services shall be limited to :
(a) supplying the Services again, or
(b) payment of the costs of having the Services supplied again.
13.2 Donee’s liability to Shout for any loss or damage arising from the provision of Services shall be limited to the total sum of the Services provided under the Agreement and any agreement for Additional Services.
13.3 Neither party will be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the carrying out of or providing of any Services.
14 Confidential Information
14.1 Shout and the Donee shall treat any Confidential Information as confidential
14.2 Each party undertakes not to use Confidential Information of the other party or disclose that information to any person or allow or make it possible for any person to observe that information, except with the prior approval of that other party or as required by law (for the avoidance of doubt, a party may disclose Confidential Information to its professional advisers or a related body corporate as necessary for performing its obligations or exercising or protecting its rights under the Agreement).
14.3 Where a party is required to disclose Confidential Information to comply with any applicable law or requirement of any governmental agency or regulatory body (including any Fundraising Authority), they must promptly give notice of its disclosure to the other party to the extent practicable, and uses its reasonable endeavours consistent with its obligations to minimise any such disclosure and to ensure that any Confidential Information so disclosed will be treated as confidential. A party must endeavour to notify the other party prior to disclosure or, if not possible to notify prior to disclose, as soon as reasonable practicable following disclosure.
15 GST and other Taxes
The Fees and all other monies payable by the Donee pursuant to the Agreement are exclusive of GST unless otherwise stated.
16 Entire Agreement
The Agreement contains the entire agreement between the parties and supersedes all prior agreements. A waiver by either Party of any term or condition shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof.
If anything in the Agreement is unenforceable, illegal or void then it is severed and the rest of the Agreement remains in force.
The covenants, conditions and provisions of the Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement including without limitation clauses 12, 13 ,14 and 19.
19 Governing Law
The Agreement will be governed by and construed pursuant to the laws of Victoria and the Commonwealth of Australia. The parties submit to the exclusive jurisdiction of that State and the Commonwealth of Australia in respect of all matters or things arising out of the Agreement.
20.1 Service of any notice under or relating to the Agreement will be sufficiently served:
(a) if delivered personally to the party to be served;
(b) if left at or sent by pre-paid registered post to:
(i) the address of the party to be served as set out in the description of that party at the beginning of the Agreement;
(ii) the last known place of abode or business of the party to be served; or
(iii) the registered office of any party to be served which is a company; or
(c) and in the case of posting such notice will be deemed to have been duly served on the second Business Day after such notice has been posted.
21 Force Majeure
21.1 Neither party will be liable to the other for any default under the Agreement caused by: industrial or civil dispute, war, governmental action, riot, strikes, flood, fire, drought, act of God, or any other cases which are beyond the reasonable control of the defaulting party (“Force Majeure Event”).
21.2 On the occurrence of a Force Majeure Event, the party affected will, as soon as practicable, give notice and full particulars in writing to the other party and the parties will consult with each other and cooperate to determine the best course of action.
22.1 Shout may, by giving the Donee prior notice, change these terms and conditions. The change takes effect from the time such notice is effective.
22.2 Without limiting clause 22.1, Shout may change these terms and conditions without prior notice if Shout considers it is required to comply with an applicable law, regulation or code, in which case Shout will give notice as soon as reasonably practicable.
No party may assign any of its rights under the Agreement without the prior written consent of the other party.
Notwithstanding any other term in the Agreement, the Agreement does not constitute a legal partnership or a joint venture between the parties.
25 Definitions and interpretation
(a) In these terms and conditions;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience only and do not affect interpretation;
(d) a reference to a clause is a reference to a clause of these terms and conditions;
(e) an expression to a natural person includes a body corporate, partnership, joint venture or association;
(f) a reference to a statute or regulation includes all amendments, consolidations or replacements thereof;
(g) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms and conditions;
(h) a covenant, agreement, representation or warranty on the part of or in favour of two or more persons is for the benefit of or binds them jointly and severally;
(i) if an event must occur on a stipulated day which is not a Business Day, then the stipulated day will be taken to be the next Business Day; and
(j) a reference to a body, whether statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
|ACNC||means the Australian Charities and Not-for-profits Commission|
|Additional Services||means any other services that Shout makes available to the Donee from time to time that are in addition to the Basic Services.|
|Agency||means the authority responsible for administering the relevant Fundraising Statutes.|
|Agreement||means the entire agreement between the Donee and Shout, made up of these terms and conditions, the Charity Sign Up Form, the Rate Sheet and (if applicable) any agreement for Additional Services.|
|AML/CTF Laws||means the Anti-Money Laundering and Counter-Terrorism Financing Act (Cth) 2006 and any other anti-money laundering or counter-terrorism financing laws or regulations including without limitation, any laws or regulations imposing "know your customer" or other identification checks or procedures, that apply to a party, in any jurisdiction, in connection with the Agreement.|
|App||means the software program used on mobile devices and currently called Shout.|
|Basic Services||means the Retail Widget Fundraising, Shout Now Fundraising and Peer-to-Peer Fundraising as updated from time to time by Shout.|
|Business Day||means a day on which banks are open for business in Melbourne, Victoria.|
|Charitable Organisation||means an organisation which is required to have a Fundraising Authority to solicit donations from the public.|
|Charity Sign Up Form||means the registration form (currently located on the Shout Website) that Donee's must complete in order to use the Shout System and includes updated versions of that form.|
of a party means information in any form or media, and whether given by the party or acquired or created directly or indirectly before or after the date of the Agreement by the other party, including:
(a) the Agreement; and
(b) all information, know-how, ideas, concepts, technology, manufacturing processes, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with or in support of the business of the party which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with the Agreement or any Work Schedule or Statement Of Work,but does not include:
(c) information which is or becomes generally available in the public domain (other than through any breach of confidence);
(d) information rightfully received by the other party from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first party; or
(e) information which has been independently developed by the other party.
|Content||means photos, artwork, videos, text, graphics, articles, trademarks or other information provided by Donee that may be used by Shout to provide the Services.|
|Deductible Gift Recipient||means an organisation which is endorsed by the Australian Taxation Office as a deductible gift recipient.|
|Donee||means the charitable organisation who applied for the Services by completing the Charity Sign Up Form.|
|Donor||means any person that donates money through Shout.|
|Fundraising Agent||means Shout acting in its capacity of a registered fundraiser under the various Fundraising Statutes.|
|Fundraising Authority||means all necessary licences, consents, permissions, authorities, registrations, permits or other authorities the Donee is required to have in order to request donations from the public.|
|Fundraising Campaign||means fundraising and marketing services undertaken by Shout for the Donee under the terms of the Agreement and in accordance with specifications contained in a CCA agreed to by the parties|
|Fundraising Statutes||means any applicable fundraising legislation or regulations in the relevant jurisdiction including an overseas jurisdiction, as the case may be.|
|Gift||means a gift that satisfies the conditions of a gift as set out in Taxation Ruling TR 2005/13 Income tax: tax deductible gifts - what is a gift?|
|Intellectual Property||means the App, Website, Charity Sign Up Form, Shout’s Confidential Information, Shout System, Shout Trade Marks and any Intellectual Property Rights in those things.|
|Intellectual Property Rights||means any and all rights in respect of or in connection with any Confidential Information, Intellectual Property, copyright (including future copyright and rights in the nature of or analogous to copyright), inventions (including patents), designs or trade marks throughout the world, whether such rights are afforded protection by a system of registration or not, and includes all rights to apply for registration of such rights where applicable.|
|Nominated Account||means the bank account nominated by the Donee to Shout in writing, into which Shout will remit donations for the Donee.|
|Peer-to-Peer Fundraising||means the fundraising system where Shout appoints agents to request donations from Donors which are accepted by Shout through either the Shout Website or App.|
|Rate Sheet||means the document located on the Website, that sets out Shout’s rates for the fees for providing the Services and Shout System, as amended and updated from time to time.|
|Retail Widget Fundraising||means the fundraising system where a donation facility is located on third party websites enabling Donors to directly donate through Shout.|
|Services||includes the Basic Services, any Additional Services, Fundraising Campaigns and any other additional services that Shout agrees to provide to Donors from time to time.|
|Shout||means Shout For Good Pty Ltd (ACN 163 218 639)|
|Shout Now Fundraising||means a section of the App and Shout Website featuring the Donee’s name, and basic menu items which will enable a Donor to make a donation to the Donee through the App or Shout Website.|
|Shout System||means the system of collecting donations, including micro-donations, from donors through website, mobile devices and other fundraising techniques developed by Shout from time to time including, but not limited to, Retail Widget Fundraising, Shout Now Fundraising and Peer-to-Peer Fundraising.|
|Website||means the website located at www.shoutforgood.com as amended from time to time.|