These terms and conditions, the Charity Sign Up Form, the Rate Sheet and (if applicable) any agreement for Additional Services are to be read together (those documents are collectively referred to as the “Agreement”).
The Agreement constitutes 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 that form part of the Agreement, these terms and conditions prevail.
Shout's obligation to provide any of the Services is conditional on Shout being satisfied of the following conditions precedent.
If the Donee is required under any applicable Fundraising Authority or the Fundraising Statutes to:
obtain approval from;
provide relevant notice to; or
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, the Donee will take all necessary steps to obtain the relevant approval or modification, or to provide the relevant notice. If this clause applies, the Donee must provide written confirmation to Shout that the relevant approval, modification or notice has been obtained or provided.
The Donee must provide Shout with all necessary information, forms, authorities, and KYC information as reasonably requested by Shout.
Shout will provide the Services in accordance with these terms and conditions.
The Donee may request that Shout provide Additional Services. Any Additional Services will be negotiated in good faith, and agreed in writing by the Parties. Any agreed Additional Services will form part of the Services.
Shout may, in its sole discretion, alter or 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. Shout will endeavour to notify the Donee of any planned alteration or suspension of the Services as soon as practicable.
Shout will transfer to the Donee the funds that have been received from Donors, less any fees and charges in accordance with clause 16:
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
on a bi-monthly basis where a Donee is domiciled and registered in a State or Territory other than Western Australia.
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.
Shout will maintain, and provide to the Donee as a bi-monthly report, records of:
all funds received in the course of providing the Services;
the amount of any fees and charges deducted in accordance with clause 16; and
all funds transferred to the Donee.
Within 30 days of termination of the Agreement, Shout will provide to the Donee a final report containing the information in clause6, and where the Donor has authorised it, the name, and contact details of the Donors who have donated or made a payment to the Donee.
Shout will provide receipts to Donors on behalf of the Donee. Receipts must include the following information:
a statement that the receipt is issued by Shout as Fundraising Agent of the Donee;
the name of the Donee and its ABN;
a statement that the receipt is for a gift;
the date the gift was made;
the amount of the gift; and
whether the Donee is a deductible gift recipient.
Shout may delegate, sub-contract or outsource some or all of the obligations owed under the Agreement to another party (whether the other party is a Related Body Corporate or otherwise).
Donee acknowledges and agrees that:
Shout owns the Intellectual Property, including any improvements or goodwill developed through the Donee’s use of the Intellectual Property; and
Shout has not, and will not, provide legal, financial or taxation advice to the Donee.
Donee must:
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:
of any changes that impact upon the Donee’s Fundraising Authorities or the Donee's ability to meet its obligations under the Agreement; or
if the information that the Donee has provided to Shout about the Donee changes;
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
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.
Donee grants to Shout an irrevocable right to deduct any fees and charges payable under clause 16 from the funds that have been received from Donors prior to paying the Donee the balance under clause 3.4.
The Donee undertakes and agrees at its own cost to:
comply with any applicable Fundraising Statutes, or Fundraising Authority;
comply with all applicable laws and regulatory requirements (including under the Privacy Act, relating to its obligations under the Agreement;
advise Shout, as soon as practicable, of any changes to its Fundraising Authority, including any subsequent addition, variation or deletion of a condition;
advise Shout, as soon as practicable, of any changes to its charitable status or tax status;
hold and maintain, all necessary insurances including without limitation professional indemnity insurance, worker’s compensation and public liability insurance; and
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.
Shout undertakes and agrees at its own cost to:
comply with any applicable Fundraising Statutes, or Fundraising Authority; and
comply with all applicable laws and regulatory requirements (including under the Privacy Act, relating to its obligations under the Agreement.
Shout undertakes and agrees to, at its own cost, 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.
In applying for the Services, the Donee represents and warrants that:
it is authorised to enter into an agreement for the provision of the Services, including any Additional Services;
it is a Charitable Organisation registered with the ACNC;
the information that was, or will be, provided to Shout in the Charity Sign Up Form for the Services is true and correct;
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;
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;
it has obtained and will keep in place all appropriate insurance policies necessary to fulfil its obligations under the Agreement;
it is using the Services for a charitable purpose or to benefit the community;
it owns the Content or is otherwise entitled to grant Shout the right to use it in accordance with the Agreement; and
the Content does not, and Shout’s use of the Content will not, infringe the Intellectual Property Rights of any person.
Shout represents and warrants that:
it is authorised to enter into an agreement for the provision of the Services, including any Additional Services;
it has obtained and will keep in place all appropriate insurance policies necessary to fulfil its obligations under the Agreement; and
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.
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.
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.
This clause applies where Shout has agreed to provide the Donee with Shout Terminals.
Shout agrees to provide the Donee with Shout Terminals as part of its Services provided that Shout and the Donee agree in writing to:
the number and type of Shout Terminals to be provided to the Donee;
the duration of the provision of the Shout Terminals;
the cost of the provision of the Shout Terminals;
the cost of the collection of the Shout Terminals; and
any other terms applicable to the provision by Shout of the Shout Terminals
The Donee agrees and acknowledges that:
the Shout Terminals will only be used by the Donee for a specified fundraising purpose agreed in writing between Shout and the Donee,
it must return the Shout Terminals to Shout when the specified purpose is completed, at a time and in a manner specified by Shout.
when returning the Shout Terminals to Shout, the Donee will take reasonable care in wrapping and packing the Shout Terminals in order to avoid damage;
the Donee will be liable for the cost of repairing or replacing any Shout Terminals provided to the Donee which:
are damaged in transit due to inadequate packing; or
Shout determines, acting reasonably, are lost or damaged beyond normal wear and tear.
the Donee must not attempt to repair or service the Shout Terminals or allow any other person to do so, other than a person authorised by Shout.
the Donee will immediately notify Shout if the Shout Terminals are stolen, lost, damaged, faulty, or not capable of normal operation;
the Shout Terminals may not be used by, or on behalf of, any third party (including any associated company or related body corporate of the Donee), without the prior written authorisation of Shout;
the Donee will not disclose the username or PIN required to use Shout Terminals to any other person;
the Donee will not allow any other person to see them entering the username or PIN required to use the Shout Terminals;
the Donee will not record the username or PIN, required to use the Shout Terminals, in writing (unless the Donee makes reasonable attempts to protect the security of the username and PIN);
the Donee will act with extreme care in protecting the username or PIN required to use the Shout Terminals;
the Donee will only accept Nominated Cards that are, at the time of the Donee accepting the Nominated Card, valid for use (and also stop accepting a Nominated Card immediately if Shout gives the Donee notice to do so);
the Donee will not accept Nominated Cards as payment for goods or services by mail or telephone;
the Donee will use reasonable care in processing a transaction through Shout Terminals to detect forged or unauthorised signatures, or the unauthorised use or forgery of a Nominated Card;
the Donee will immediately cease using the Shout Terminals and will immediately report to Shout if the Donee becomes aware or suspect that the username or PIN required to use the Shout Terminals is compromised, disclosed, used without the Donee's authority, or is lost or stolen;
the Donee will not act fraudulently or maliciously in relation to the Shout Terminals. As examples, the Donee will not copy, modify, adversely effect, reverse engineer, hack into or insert malicious code into the Shout Terminals;
the Donee will take all reasonable steps to ensure that each Shout Terminal is protected against any damage, loss, theft, unauthorised access or use, modification or other use; and
the Donee complies with any further terms and conditions relating to Shout Terminals as notified by Shout from time to time.
If the Donee requires assistance with the use of the Shout Terminal, the Donee must first contact Shout at info@shoutforgood.com or 1300 747 278.
This clause applies where Shout has agreed to provide the Donee with Shout SMS.
Shout agrees to provide the Donee with Shout SMS as part of its Services provided that:
the Donee will not act fraudulently or maliciously in relation to the Shout SMS. As examples, the Donee will not copy, modify, adversely effect, reverse engineer, hack into or insert malicious code into Shout SMS; and
the Donee complies with any further terms and conditions relating to Shout SMS as notified by Shout from time to time.
This clause applies where Shout has agreed to allow the Donee to sell – whether by sale or auction – goods (such as merchandise) or services (such as tickets to event) through the Shout Website, App or other platform owned or controlled by Shout or a Related Body Corporate of Shout.
Shout is a platform through which bidders and buyers can connect with the Donee for the purpose of browsing, bidding on and buying goods or services, in either a sale or an online auction format.
Without limiting anything in this clause 10, in the case of auctions:
Shout does not perform the role of a traditional auctioneer. Rather, Shout simply provides the platform through which bidders can connect and transact with the Donee. The Donee, and not Shout, is the “auctioneer”.
Items in an auction may be subject to a reserve price nominated by the Donee. Should the leading bid at expiry not meet the reserve price, the item will not be sold.
Generally, the winner will be contacted by email after the expiry of the auction and invited to complete their payment through the Shout platform. Where the winner fails to make payment, the Donee may, at its discretion, invite the next highest bidder to make payment to obtain the goods and/or services.
Without limiting anything in this clause 10, in the case of sale of tickets or bookings for events:
Shout provides the platform through which buyers can purchase tickets or make bookings to events organised by the Donee
(Events). The Donee, and not Shout, is the event organiser.
The terms and conditions governing the tickets (relating to, for example, eligibility, Event details, Event postponement or cancellation and refunds) are determined by the Donee and not Shout. Buyers should read these carefully. The Donee determines number and types of tickets available.
Nothing in those terms and conditions binds Shout, creates any obligations on Shout or gives the buyer any rights against Shout.
Shout has no control over, or responsibility for, the Event.
Generally, the purchaser will be contacted by email after the purchase of tickets. The email will contain a receipt for purchase and either the ticket or information about how and when the ticket will be provided.
If the purchaser has any questions about the ticket or the Event (including refunds, or Event postponement or cancellation), they must contact the Donee (and not Shout).
The Donee acknowledges that:
Shout is not the seller of the goods or services and no representation, does not warrant, and has no control whatsoever over:
the quality, safety, fitness for purpose or legality of the goods or services;
the truth or accuracy of listings or descriptions of goods or services;
the ability of the Donee to sell the items or the ability of buyers to buy;
the ability of buyers to pay for the goods or services; or
the ability of a bidder, buyer or seller to actually complete a transaction, return goods or act lawfully when using the Shout Website, App or other platform.
Shout does not take ownership of or title in goods or services at any time, and does not transfer in part or whole any legal ownership of goods or services from the Donee to a buyer.
Shout does not have any control over when title and risk in goods or services will pass from the Donee to the buyer.
Shout is neither involved in nor responsible for the delivery or provision of goods or services. The method of, and any charges for, delivery or provision is determined by the Donee.
In the event of any dispute over the goods or services, the buyer’s sole recourse is to seek redress from the Donee.
The Donee grants Shout 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.
Without limiting any of its other rights in this agreement Shout may, in its sole discretion, acting reasonably:
reject or remove any Content from the Shout Website, App or other platform owned or controlled by Shout or a Related Body Corporate of Shout; and
edit or modify any Content if, in Shout's reasonable opinion, it is necessary to protect Shout or a Related Body Corporate of Shout, or would be required to comply with any applicable law, regulation or code.
Shout acknowledges that:
the Donee owns the Intellectual Property Rights in the Content; and
Shout will only use the Content as required to provide the Services, as agreed between the parties, or as required by law.
The parties acknowledge and agree that:
Shout 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) or when making donations or a payment to Charitable Organisation(s) through the Shout System;
Donee owns information that has been provided by the Donor (when making a charitable donation or a payment to the Donee or as a result of the Donee using the Services). 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;
the Donee may access the information referred to in clause 12.1(b) during the term of this Agreement through the Website; and
Shout and the Donee acknowledge that if information falls within both clause 12.1(a) and 12.1(b), Shout and the Donee will have their respective rights as contained within clause 12.1(a) and 12.1(b) with regards to that information.
The Shout System and Shout Terminals may be unavailable from time to time, and temporary service and network interruptions may occur. Shout will not be responsible if the Shout System and Shout Terminals are not available and it affects the Donee, unless it is due to Shout’s fraud, wilful misconduct or negligence.
Shout’s Privacy Policy contains information about:
the circumstances in which Shout may collect personal information from other sources (including from a third party);
how to access personal information and seek correction of personal information; and
how you can raise concerns that Shout has breached the Privacy Act or an applicable code and how Shout will deal with those matters.
If you give Shout personal information about someone else, please show them a copy the Privacy Policy so that they may understand the manner in which their personal information may be used or disclosed by Shout in connection with your dealings with Shout.
Shout may immediately:
alter, suspend or terminate some, or all of the Services; or
terminate the Agreement (including any agreement for Additional Services), if Shout determines, in its sole discretion, acting reasonably, that:
the Donee is in material breach of the Agreement including, but not limited to, any agreement for Additional Services;
the Donee has engaged in conduct in connection with its operations (and regardless of whether in connection with this Agreement or unrelated to this Agreement) which is misleading, deceptive, dishonest, criminal, unconscionable or unethical, such that in the opinion of Shout (acting reasonably), the continued provision of the Services would bring Shout or a Related Body Corporate into disrepute;
the Donee has engaged in conduct in connection with its operations (and regardless of whether in connection with this Agreement or unrelated to this Agreement), such in the opinion of Shout (acting reasonably), the continued provision of the Services poses or might pose a threat to the security of Shout or the Shout Systems, the Shout Website, the App, Shout’s Related Bodies Corporate or its other users;
an insolvency event occurs in relation to the Donee;
it becomes illegal or impossible in practice for Shout to continue to provide the Services to the Donee;
the Agreement becomes in whole or a material part void, voidable or unenforceable;
the Donee processes a transaction or accepts a donation that the Donee knew, or ought to have known, was fraudulent or illegal.
When exercising its rights in clause 15.1(a):
Shout is not required to notify the Donee of the date on which the alteration or suspension, or both, as the case may be, will end; and
Shout may during the period of alteration or suspension, or both, as the case may be, terminate this Agreement under paragraph 15.1(b).
Either party may terminate the Agreement (including any agreement for Additional Services) by providing 30 days’ prior written notice.
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.
If the Agreement (including any agreement for Additional Services) is terminated in accordance with this clause 15, all fees and charges payable that have been accrued, but not yet charged, will become payable within 28 days.
In accordance with the Rate Sheet, the Donee must pay:
transaction fees, including merchant services fees (as applicable).
fees relating to the provision of the Shout Terminal services (including any monthly rental fees associated with the Shout Terminal units specified in writing by Shout from time to time).
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 3.4.
The Donee and Shout will agree in writing any fees payable for any Additional Services.
Shout may vary existing fees, or introduce new fees, by providing 30 days’ notice to the Donee, unless otherwise agreed with the Donee.
Shout may agree in writing with the Donee to waive any part of the fees it is entitled to under the Agreement.
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), or which might in any way cause a party to deal in any way with any person (natural, corporate or governmental) that has been listed or named by any government, or independent authority as a person who is in any way suspected or being involved (or potentially involved) in terrorism or in any activities connected with terrorism. Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Regulations 2011 (Cth), or which might in any way cause a party to deal in any way with any person (natural, corporate or governmental) that has been listed or named by any government, or independent authority as a person who is in any way suspected or being involved (or potentially involved) in terrorism or in any activities connected with terrorism.
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.
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.
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.
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).
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 15.
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.
Each indemnity in the Agreement survives the expiry or termination of the Agreement.
Notwithstanding any other clause in these terms and conditions, Shout’s liability to the Donee for any loss or damage arising from the provision of Services shall be limited to:
supplying the Services again, or
payment of the costs of having the Services supplied again.
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 cost of repairing or replacing Shout Terminals which:
were provided to the Donee; and
Shout determines, acting reasonably, are lost or damaged beyond normal wear and tear.
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.
Shout and the Donee shall treat any Confidential Information as confidential.
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).
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.
The fees and all other monies payable by the Donee pursuant to the Agreement are exclusive of GST unless otherwise stated.
It is the Donee’s responsibility to inform Shout of any GST or other tax related specifications or requirements in relation to the sale of goods or services (including tickets), where applicable. Shout takes no responsibility for any tax liability or tax reporting or documentary obligations of the Donee or Donor.
The Agreement contains the entire agreement between the parties and supersedes all prior agreements. Nothing in this clause is intended to exclude liability for fraud or fraudulent misrepresentation or any other representations which cannot be excluded by law.
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 18, 19, 20 and 25.
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.
Any notice under or relating to the Agreement will be sufficiently served:
when the party sending the notice is Shout, by posting the notice on the Website, such notice will be deemed to have been received on the third day after posting of the notice to the Website;
if delivered personally to the party to be served, such notice will be deemed to have been duly served or received on the day that such notice is delivered;
if left at or sent by pre-paid registered post to:
the address of the party to be served (as the address is set out in the Charity Sign Up Form or in the description of that party in the Agreement);
the last known place of abode or business of the party to be served; or
the registered office of any party to be served which is a company such notice will be deemed to have been duly served or received on the second Business Day after such notice has been posted; or
if sent by email to the email address of the party to be served (as the email address is set out in the Charity Sign Up Form or in the description of that party in the Agreement), such notice will be deemed to have been served or received two hours after transmission if sent during normal Business Hours or otherwise at the commencement of the next Business Day and provided no notification that the email has not reached its recipient has been received by the sender.
Without limiting any other obligation in this Agreement, the Donee must inform Shout immediately of any change of the Donee’s address or email address.
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”).
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.
We may make changes to this Agreement without your agreement.
If Shout reasonably considers a change is unfavourable to the Donee, Shout will give the Donee prior notice of at least 30 days. Shout may give the Donee a shorter notice period, which may include notice on the day the change takes effect if Shout reasonably considers:
the change has a neutral effect on the Donee’s obligations;
the change reduces the Donee’s obligations; or
providing a shorter notice period is necessary for Shout to comply with legal or regulatory requirements.
If we make a change that you are not happy with, then you can terminate this agreement under clause 15.3.
The change takes effect on and from the time that is specified in the notice or, where no time is specified, immediately upon receipt of the notice.
Without limiting clause 28.2, 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 after the changes are made.
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.
In these terms and conditions:
the singular includes the plural and vice versa;
headings are for convenience only and do not affect interpretation;
a reference to a clause is a reference to a clause of these terms and conditions;
an expression to a natural person includes a body corporate, partnership, joint venture or association;
a reference to a statute or regulation includes all amendments, consolidations or replacements thereof;
no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms and conditions;
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;
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
the word "includes", in any form, is not a word of limitation; and
a reference to a body, whether statutory or not:
which ceases to exist; or
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.
| Term | Definition |
|---|---|
| ACNC | means the Australian Charities and Not-for-profits Commission |
| Additional Services | means any services, including Fundraising Campaigns, provided by Shout to the Donee, agreed in writing, that are not Basic Services. |
| Agency | means the authority responsible for administering the relevant Fundraising Statutes. |
| Agreement | means the entire agreement between the Donee and Shout, including 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 2006 (Cth) 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. |
| ANZ | Australia and New Zealand Banking Group Limited ABN 11 005 357 522. |
| ANZ Merchant Services General Conditions | means the general conditions which are applicable to ANZ merchant services and can be found here: https://www.anz.com.au/content/dam/anzcomau/documents/pdf/general-conditions-merchant.pdf |
| App | means the software program used on mobile devices and currently called Shout. |
| Basic Services | means the Shout Now, Shout Peer-to-Peer, Shout Terminal and the Shout SMS as updated from time to time by Shout. |
| Business Hours | means 8 am to 5 pm on Business Days. |
| Business Day | means a day on which banks are open for business in Docklands, 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. |
| Confidential Information | 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 to Shout by the Donee and that may be used by Shout to provide the Services, including by display on the Shout Website or App. |
| 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 or makes a payment 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 an Additional Service that involves fundraising and marketing services undertaken by Shout for the Donee under the terms of the Agreement |
| 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 trademarks 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. |
| Nominated Cards | means each card being a debit card or credit card or both referred to in the Rate Sheet as it is updated or replaced from time to time. |
| Peer-to-Peer Fundraising | means the fundraising system where Shout appoints agents to request donations or payment from Donors which are accepted by Shout through either the Shout Website or App. |
| PIN | means personal identification number relevant to the operation of the Shout Terminal. |
| Privacy Act | means the Privacy Act 1988 (Cth). |
| Privacy Policy | means the Shout Privacy Policy currently located at the Website as updated from time to time. |
| 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. |
| Related Body Corporate | has the meaning given to the phrase in the Corporations Act 2001 (Cth). |
| Services | includes the Basic Services and any Additional Services. |
| Shout | means Shout For Good Pty. Ltd. (ABN 45 163 218 639). |
| Shout Now | 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 or payment to the Donee through the App or Shout Website. |
| Shout SMS | means the digital donation service operated by Shout where Donors can make donations or payment to the Donee by sending an SMS with specific keywords to a dedicated mobile phone number. |
| 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, Shout Now, Shout Peer-to-Peer, Shout Terminal and Shout SMS. |
| Shout Terminal | means an electronic, mobile point of sale device (including the attached card reader, cables and peripherals and any pre-loaded applications and software), for processing transactions (cashless purchases and donations) using Nominated Cards and for initiating the credit or debit of funds to facilitate the settlement of those transactions. |
| Shout Terminal Conditions | means: 1. the ANZ Merchant Services General Conditions; 2. the ANZ ePOS General Conditions; or 3. any other applicable Shout Terminal conditions as notified by Shout from time to time, as applicable to the relevant Shout Terminal provided to the Donee in accordance with clause 8. |
| SMS | means a text message sent to mobile phones limited to 160 alpha-numeric characters. |
| Website | means the website located at shoutforgood.com as amended from time to time. |