Charity Participation Agreement

By ticking the ”I agree to the Terms & Conditions” box and registering your details, you acknowledge that you have read and understood this Agreement and agree to be bound by it.  The box may only be ticked by a person authorised to register and enter into this Agreement on behalf of the charity.  We recommend that you print and retain a copy of the terms and conditions for future reference.

Introduction
A.    Karma Currency Foundation Ltd (ACN 124 219 129) as trustee for the Karma Currency Foundation (ABN 54 120 979 809) (KC) is a public ancillary fund covered by Item 2 of the table in section 30-15 of the Income Tax Assessment Act 1997 and is endorsed as a deductible gift recipient that receives and distributes donations. 
B.    Goodcompany Enterprises Pty Ltd (ACN 160 702 527) as trustee for the Goodcompany Enterprises Unit Trust (ABN 74 765 523 619) (GC) provides donation, fundraising, volunteering and administrative services to charities, including KC, community organisations, companies and individuals (the Program).
B.    The Program operates through various websites & applications 
C.    You are either: (a) a charity that warrants that it is endorsed as a deductible gift recipient because it is described in item 1 of the table in section 30-15 of the Income Tax Assessment Act 1997 (Cth) i.e. you have (DGR Status) and wishes to use the services of GC and participate in the Program; or (b) a charity that does not have DGR Status and wishes to use the services of GC and participate in the Program in respect of volunteering only.  
Operative Provisions


1    DEFINITIONS & INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a)    Agreement means these terms & conditions, as varied from time to time. 
(b)    Attack means any thing that impacts IT technical or functional performance or integrity including any form of computer adware, bot, hacking, malware, phishing, spider, spyware, trojan horse, virus, worm, or other type of malicious or harmful computer activity, application, executable, program or software.
(c)    Services mean the various goods & services provided by GC from time to time.
(d)    Term is defined in clause 17.  
(e)    Websites mean the various applications, websites & digital channels owned, licensed &/or operated by GC and/or its third party associates on their own behalf and on behalf of third parties from time to time, including:
(i)    GoodCompany.com.au, Karmacurrency.com.au, KarmaCurrency.org, KarmaCurrency.com, Give.org.au, CharityChristmasCard.org.au, FeelGoodGifts.com.au, FeelGoodGifts.org, CharityGiftRegistry.com.au, CharityGiftRegistry.org, KarmaClicks.org,;
(ii)    related social media sites, including Facebook.com/KarmaCurrency and Twitter.com/KarmaCurrency;
(iii)    white labelled corporate giving sites; and
(iv)    loyalty program websites.
In this Agreement:
(f)    Includes: the words “includes”, “include”, “including”, “for example” or “such as” will be read to mean “includes, but is not limited to”.
(g)    Calendar: a reference to a day, week, month, quarter or a year is a reference to a calendar day, week, month, quarter or a year 
(h)    Contra proferentem excluded: a provision must not be construed against a party merely because that party was responsible for preparing this Agreement or that provision 


2    PROVISION OF SERVICES
During the Term, GC will:
(a)    provide you with access to a content management tool which allows you to customise a webpage (Charity Page) to provide information about you and any specific goods or services you provide towards which a donation can be made (Directed Gifts) and / or volunteering opportunities.  The contents of your Charity Page will form the basis of any information about you and any specific goods or services you provide;
(b)    publish the Charity Page on one or more of the Websites, as determined by GC in its absolute discretion but otherwise subject to removal at your written request, and provide links to the Charity Page in order to provide information to people (Donors) wishing to direct a donation to you (by making Directed Gifts, Indirect Gifts, purchasing a charity gift, making a contribution towards a charitable gift registry or fundraising page, redeeming all or part of a charity gift voucher, by paying an amount directly or such other means, including via KC) through the Websites (Donation) or view volunteering opportunities with your organisation;
(c)    provide you with access to an administration webpage to view your participation in the Program including your Donation & volunteer history, update and amend your details and your Charity Page, and pay your Fees;
(d)    provide Donors with an immediate acknowledgement by email of the receipt of their Donation;
(e)    deposit amounts received from Donors in KC’s donations bank account and record the amount of the Donations directed to you in accordance with this Agreement; 
(f)    subject to clauses 6 & 7, pay to a bank account nominated by you, an amount equal to all workplace giving donations in each month and all other Donations accumulated in each quarter (after deduction of any amount required by law to be withheld by GC or KC from that payment) within 20 business days of the end of that month / quarter;
(g)    only direct payments of Donations to charities with DGR Status.  
3    VOLUNTEERING
(a)    This clause 3 will apply if you desire GC to advertise your volunteering requirements via your Charity Page &/or the Websites from time to time.  Such activities are provided by GC and will form part of the Program for the purpose of this Agreement.
(b)    GC merely provides an advertising channel and does not interview, screen, undertake reference checks, legal checks, police checks, working with children checks or any form of due diligence (Vetting) about prospective volunteers and Vetting is your sole responsibility.
(c)    You will promptly maintain the accuracy and currency of your volunteering needs and projects from time to time on your Charity Page. 
(d)    You will maintain adequate volunteer & public liability insurance with a reputable insurer / underwriter and within 7 days provide GC with a copy of your certificate of currency upon request. 
(e)    You will indemnify and hold harmless KC, GC, its directors, employees & contractors (Indemnified Parties) against all claims, liability, loss, damage, costs and expenses (including legal costs on a solicitor and own client basis) which may be incurred by the Indemnified Parties arising out of or in connection with your volunteers or volunteering activities.
(f)    You will be solely responsible for contracting / engaging with, directing and managing your volunteers and complying with any and all laws relating to such volunteers.


4    WEBSITES
(a)    GC may host and operate the Websites and the Charity Page itself or through a third party.  GC will use reasonable endeavours to ensure that the Website and the Charity Page are fully operational and available to you and the general public at all times (other than during scheduled maintenance periods).  However, to the maximum extent permitted by law GC does not warrant nor guarantee that the Website and the Charity Page will be operational and available at all times and will not be liable to you for any defect in or unavailability of the Website or the Charity Page.  
(b)    GC does not warrant or guarantee that the content on each Website (including the content about you) will always be the same, and to the maximum extent permitted by law GC will not be liable for any loss or damage that you may suffer as a result of any differences between the various Websites.
5    THIRD PARTY WEBSITES
(a)    GC might facilitate the ability for people to make Directed Gifts through websites owned, licensed &/or operated by third parties (Third Party Websites), including corporate giving websites and loyalty program websites (Indirect Gifts).  You agree that GC may make the Directed Gifts available for Donation on Third Party Websites in order to allow people to make Indirect Gifts, and this will be considered to be within the meaning of the term Program for the purpose of this Agreement.  
(b)    GC may have separate agreements in place with owners, licensees &/or operators of Third Party Websites on which Indirect Gifts are made available.  You agree to provide such reasonable assistance as may be required by GC in order to allow GC to comply with its obligations under these agreements.  
(c)    Donations received as Indirect Gifts will be paid to you in accordance with clause 2 unless the terms of the agreement with a Third Party Website operator make it impossible to do so, in which case GC will facilitate payment to you as soon as reasonably possible after having complied with the terms of the relevant agreement.
(d)    Neither GC nor KC make any warranty, guarantee or representation about Third Party Websites.


6    PAYMENTS AND DGR STATUS
(a)    If you cease to have DGR Status at any time during the term of this Agreement:
(i)    you must immediately notify GC and KC;
(ii)    GC may in its absolute discretion suspend, vary or remove you from the Program;
(iii)    KC may reallocate any Donation directed to you but not yet paid to you, as directed by the original Donor or if the original Donor cannot be contacted or fails to provide direction within 30 days, as KC may determine (subject to any applicable laws); and
(iv)    you must promptly repay any amount you receive from KC after you have ceased to have DGR Status.
(b)    If KC ever transfers a Donation to your account in error you will refund it within 7 days upon request.  Failing which, GC and KC have the right to withhold and set off such amount from future Donations.


7    FEES
(a)    During the Term, you will pay GC an annual fee of $300 + GST in consideration of your participation in the Program (the “Fee”) unless your only involvement in the Program is the advertising of volunteering services in which case your participation is free of charge.  Alternatively, you may pay a discounted 2 year fee at your election.
(b)    The Fee will be due and payable annually in advance at the commencement of the Term and on each anniversary date thereof and will be:
(i)    payable by you by way of credit card, EFT or cheque; or
(ii)    GC may set off and deduct the Fee from any funds, including Donations, that either GC or KC receive or hold on your behalf. 
(c)    GC may change the Fee at any time by providing at least 60 days written notice and such change will apply to you at the next billing cycle.


8    RECORDS AND AUDIT
(a)    During the term of this Agreement and for 2 years thereafter, GC and KC must keep at its principal office true and correct accounts and records of all Donations.
(b)    Upon no less than 30 days’ written notice to GC or KC and not more than once per year, you or your nominated suitably qualified independent representative may request copies of GC’s or KC’s accounts and records of Donations solely in order to verify the accuracy of the information provided by GC or KC to you.  Information obtained from such copies remain the property of GC or KC and must not be used for any other purpose.


9    INTELLECTUAL PROPERTY RIGHTS
(a)    You grant each of GC and KC a royalty-free, non-exclusive, non-transferable licence during the term to:
(i)    Use & reproduce your name and nominated trade mark(s) on the Websites and in promoting and advertising the Websites, the availability of Donations, KC, GC and the Program; and 
(ii)    with your prior consent, reproduce, publish, adapt, reasonably edit, and communicate to the public any material provided by you to GC and KC (including without limitation material provided for inclusion on the Charity Page), as part of the Website and in promotional and advertising material for the Website, the availability of Donations, KC, GC and the Program (the Promotional Acts).  If you do not respond to a request from GC or KC for your consent to Promotional Acts within 7 days of receiving that request, you will be deemed to have consented to the relevant Promotional Acts.
(b)    GC and KC each grant you a non-exclusive, non-transferable licence during the Term to use their name and nominated trade mark(s) in promoting and advertising your participation in the Program.  
(c)    Each party must ensure that it uses the other party’s name and trade marks only:
(i)    as drawn, spelt or represented in any trade mark registration or application (or in the form otherwise specified by the party that owns the relevant name or mark);
(ii)    in accordance with any reasonable directions given in writing by the party that owns the relevant name or mark; and
(iii)    in connection with relevant goods and services.
(d)    Except as expressly stated in this Agreement, neither party may do or authorise any act in respect of the name or any trade mark of the other party.
(e)    Nothing in this Agreement provides you with any intellectual property rights in or over the Charity Page, Websites or Program. 


10    REMOVAL OF CONTENT
GC may remove any material from the Charity Page that GC reasonably considers:
(a)    is inappropriate for inclusion on the Website or Program; or 
(b)    may expose GC, KC or other person to liability; or
(c)    is an actual or potential Attack on the Website or Program; or
(d)    may bring GC, KC, the Program or other Program participants into disrepute;
including material that:
(e)    may constitute harassment, defamation, discrimination, racism, sexism or incite hatred, 
(f)    may be deceptive, misleading, offensive, infringe third party rights, insecure, spam, breaches privacy,
(g)    may infringe third party rights, breach privacy or be unlawful; or
(h)    is otherwise inappropriate.  


11    WARRANTIES
(a)    KC warrants that it has obtained any registrations, permits, licences, consents or permissions that it is required to hold in order to solicit and accept Donations in accordance with this Agreement; and
(b)    GC and KC separately and severally warrant in respect of itself only that it has the power, right and authority to enter into this Agreement.
(c)    You warrant that:
(i)    if you are a Charity seeking Donations then you have DGR Status and will maintain DGR Status through the Term;
(ii)    you will immediately advise KC if at any time during the Term you do not have DGR Status in accordance with clause 6(a)(i);
(iii)    you will provide evidence of the currency of your DGR Status within 14 days of any request by GC or KC to do so;
(iv)    you have obtained any registrations, permits, licences, consents or permissions that you are required to hold in order to solicit and accept Donations and/or participate in the Program in accordance with this Agreement;
(v)    you will apply all Donations consistently with your DGR Status and in accordance with any representations made on your Charity Page or any other advertising or promotional material;
(vi)    the material you provide for inclusion on the Charity Page or the Website:
(A)    is accurate in all respects and not misleading or deceptive nor likely to mislead or deceive;
(B)    is not defamatory, obscene, offensive or otherwise unlawful; and
(C)    does not infringe any third party’s intellectual property rights;
(vii)    you will only advertise Directed Gifts which (at the time of advertising) you currently provide and intend to continue to provide;
(viii)    your description of any Directed Gift will accurately reflect the nature of the goods and services comprising the Directed Gift and prominently state any qualifications, conditions or exclusions associated with that Directed Gift;
(ix)    you have the power, right and authority to enter into this Agreement; and
(x)    upon request you will promptly provide a receipt to GC or KC in respect of the Donations paid by GC or KC to you in accordance with clause 2(f) or otherwise in accordance with this Agreement.  The receipt must state your name, your Australian Business Number and the fact that the receipt is for a gift.


12    LIMITATION OF LIABILITY
(a)    You may have rights under the Australian Consumer Law which cannot be excluded (ACL Rights). To the maximum extent permitted by law, except in relation to ACL Rights: 
(i)    All terms and warranties implied by law into this Agreement are excluded;
(ii)    Unless expressly stated in this Agreement no other terms or warranties are implied in this Agreement.  
(iii)    If any such implied term or warranty applicable to either GC or KC cannot be legally excluded, then to the extent permitted by the law, GC’s and KC’s liability for any breach of such term or warranty by GC or KC (as the case may be) is limited at either GC or KC’s option to replacement or resupply of the relevant goods or service. 
(iv)    Each of GC’s or KC’s aggregate liability to you for all causes of action arising in connection with this Agreement (including, negligence) is capped at the total amount of the fees paid or payable by you to GC in the 12 months prior to your claim under this Agreement. 
(v)    Neither party will be liable to the other under or in connection with this Agreement (including, without limitation, in negligence) for loss of profit or goodwill or any indirect or consequential loss or damage relating to this Agreement even if it has been advised of the possibility of such loss or damage.
(vi)    Any claims by you must be made within no more than 6 months from the date of the event that gave rise to the claim.   
(b)    In relation to ACL Rights (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law) each of GC’s or KC’s liability for a failure to comply with any ACL Right is limited, at GC’s or KC’s discretion and option (as the case may be), to: 
(i)    in the case of services, the supplying of the services again; or the payment of the cost of having the services supplied again; and 
(ii)    in the case of goods, the replacement of the goods or the supply of equivalent goods; or the repair of the goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired. 


13    GST
Unless otherwise stated, all fees and other amounts payable under this agreement are exclusive of GST. If GST is payable on or in respect of any supply made by GC or KC under or in consequence of this agreement, you will pay to GC or KC (as the case may be) an amount equal to the GST payable on or in respect of the supply at the same time as the consideration for the supply is paid, provided that GC or KC have provided you with a valid tax invoice as required by law.  Expressions used in this clause which are not otherwise defined in this Agreement but which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.


14    CONFIDENTIALITY
(a)    Neither party may disclose, reproduce or use (or permit or allow any person to disclose, reproduce, use or access) any Confidential Information of the other party except to the extent necessary to perform its obligations under this Agreement or as required by law.  Each party must take all reasonable steps to keep confidential and secure the Confidential Information of the other party, in the possession or control of the first party or its personnel.
(b)    Each party must ensure that it only discloses any Confidential Information of the other party to its personnel on a “need to know” basis.  
(c)    Each party must ensure that those personnel are aware of, understand and agree to abide by the obligations imposed by this clause in relation to Confidential Information of the other party.  
(d)    In this clause, Confidential Information means any information obtained by one party (the recipient) regarding the other party (the discloser) that is by its nature confidential, is designated as confidential by the discloser or the recipient knows or ought reasonably to have known is confidential, but excludes information which is in or comes into the public domain other than as a result of a breach of this Agreement, is already known by or in the possession of the recipient before the recipient obtains the information from the discloser or has been or is independently developed by the recipient.  If a party is uncertain whether information is Confidential Information of the other party, it must treat the information as Confidential Information of the other party until the other party advises it in writing that it is not.  
(e)    You must treat any login ID, password and other account information allocated to or selected by you in connection with the Website, the Charity Page, the Program or the content management tool referred to in clause 2(a) as Confidential Information of GC.


15    PRIVACY
If GC or KC provide you with the name or address or any other personal information of any Donor under this Agreement, you may use that information solely for the purpose of providing the Donor with promotional material about your charitable activities.  You must not provide the Donor with promotional material about other activities or third parties or use that information for any other purpose.  You must also comply with any legislation which is applicable to you, which may include the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).


16    DISPUTE RESOLUTION
(a)    Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties in accordance with the procedure detailed in clause 16(b) must be submitted for mediation. 
(b)    A matter cannot be referred to mediation, unless the Parties have first followed the below procedures:
(i)    the dispute will initially be referred to their respective managers for consideration who will meet (either in person or via teleconference) and undertake genuine and good faith negotiations with a view to resolving the dispute or difference within seven (7) days of the giving of the notice of dispute; and
(ii)    if the respective contract managers do not resolve the dispute within seven (7) days the dispute will be referred to a C level executive (or equivalent) of each Party who will meet (either in person or via teleconference) and undertake genuine and good faith negotiations with a view to resolving the dispute or difference within a further fourteen (14) days.
(c)    If the process in clause 16(b) is unsuccessful or the parties fail to meet then a mediator will be appointed by the Parties acting at all times reasonably and if not so appointed within 7 days from completion of the procedure detailed in clause 16(b), the mediator will be appointed by the President of the Law Institute of Victoria who will appoint a suitable mediator with adequate experience in mediating the type of dispute and issues in question. 
(d)    During such mediation, the Parties may be legally represented.
(e)    The Parties must act in good faith during mediation with a view to resolving the dispute.
(f)    The mediation procedure is confidential and any written statements prepared for the mediator or for a party and any discussion between the parties and between the parties and the mediator before or during the mediation procedure, are made on a “without prejudice” basis and cannot be used in any legal proceedings.
(g)    The outcome of the mediation will be binding on the parties. 
(h)    Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.
(i)    The Costs of the mediation will be borne equally by the parties to the dispute.
(j)    The Parties will continue to perform their respective obligations under this Agreement pending resolution of a dispute.
(k)    Resolution in a Court or Tribunal should only be considered as a last resort.


17    TERM & TERMINATION
(a)    This Agreement commences on the date you register with GC and agree to these terms & conditions (by ticking the “I have read and agreed to these Terms & Conditions” box) and continues until either party terminates it in accordance with this clause 17.
(b)    Either party may terminate this Agreement by providing 60 days written notice to the other party.  
(c)    Either party may terminate this Agreement immediately if the other party:
(i)    engages in conduct that the other party reasonably considers is harmful to the first party’s reputation;
(ii)    breaches any term of this Agreement and does not remedy that breach within 30 days of receipt of written notice from the first party specifying the breach; or
(iii)    enters or threatens to enter into bankruptcy, liquidation, receivership or other type of insolvency or external administration or ceases to conduct its usual operations.
(d)    In the case of charities seeking Donations GC or KC may terminate this Agreement immediately if you lose your DGR Status. 


18    ACTIONS UPON TERMINATION
(a)    Upon termination of this Agreement, GC and KC will:
(i)    promptly cease to accept Donations;
(ii)    promptly remove the Charity Page and all material provided by or relating to you from the Website; and
(iii)    pay any outstanding Donations to you in accordance with clause 2(f) (except if you cease to have DGR Status);
(b)    Upon termination of this Agreement, each party must immediately return to the other party (or at the other party’s request, destroy and certify the destruction of) all material, including Confidential Information of the other party, which the other party has provided to it.


19    GENERAL
(a)    Neither party will be liable for any failure to perform or delay in performing its obligations under this Agreement if such failure or delay is due to circumstances beyond that party’s reasonable control including without limitation acts of God, natural disaster, war, terrorism, riots or industrial action.
(b)    This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
(c)    GC may modify, alter, change or vary (“Change”) any term or condition of this Agreement at any time at its discretion.  Such Changes will be notified to you in writing (generally via email) and your continued participation in the Program or failure to notify GC of an objection within 14 days of receiving written notification of a Change will indicate your acceptance of the Change to the Agreement. 
(d)    The provisions of this Agreement will be deemed to be severable and any invalidity of any provision of this Agreement will not affect the validity of the remaining provisions of this Agreement.
(e)    GC may sub-contract the provision of the Services or Program deliverables.
(f)    You must not assign or sub-license, or purport to assign or sub-license, any right or obligation under this Agreement.
(g)    GC and KC are separate entities and every obligation and duty under this Agreement is separate and under no circumstances are GC and KC acting jointly. 
(h)    In addition to any other lawful means, a notice, demand, certification, process or other communication relating to this Agreement may be given by being personally served on the other party or being left at, or sent by pre-paid ordinary mail to, the other party’s registered office.
(i)    This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, and the parties submit exclusively to the jurisdiction of the courts having jurisdiction in that State (including the Federal Magistrates Court of Australia and the Federal Court of Australia). 
(j)    Provisions of this Agreement which are not expressly limited to the term will, where appropriate, survive the termination of this Agreement and continue in effect.
(k)    The terms of this Agreement include its background and recitals but not its headings.
(l)    This Agreement constitutes the entire Agreement between the parties and there are no other oral undertakings, warranties or agreements between the parties relating to the subject matter of this document.