These terms apply to your access to, and use of, the fundraising platform (Platform) operated by Fundraising Association Australia Pty Ltd (ABN 30 649 847 629) trading as Givity (Givity, we, us and our) and accessible at http://givity.com.au/ (Website).
1. Definitions and Interpretation
In these Terms, unless the context otherwise requires:
(a) Business means:
(i) the business carried on by Givity of providing the Services to the Contributors by way of the Platform; and
(ii) any other business entered into or carried on by Givity from time to time.
(b) Confidential Information means information which would reasonably be regarded as confidential and includes, without limitation, information relating to a party’s intellectual property rights, organisational structure, financial position, personnel, policies, and Business.
(c) Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of revenue, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, loss of use, loss of or damage to data, cost of capital or costs of substitute goods, facilities, or services.
(d) Contributor means any person who registers for, or otherwise accesses the Platform by way of the Website for the purpose of making a monetary contribution to a campaign.
(e) Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war, civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing internet or telecommunications outage or impairment.
(f) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied, or replaced from time to time.
(g) Login Details means the user name, password and other login details used by the Contributor from time to time for the purpose of accessing the Platform by way of the Website.
(h) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
(i) Platform means the website of givity.com.au.
(j) Resolution Institute means the Resolution Institute (ACN 008 651 232).
(k) Services means the campaigns offered by Givity via its website to be given the chance to win amazing prizes and experiences following the purchase of a ticket or tickets in compliance with all of Givity’s terms and conditions and Rules of entry.
(l) Terms means:
(i) these terms and conditions forming the Platform Terms and Conditions;
(ii) the Website Terms and Conditions and Rules of entry; and
(m) Unacceptable Content means any:
(i) content which, in Givity’s reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct;
(ii) content which is or may be considered as incorrect, false, misleading or deceptive;
(iii) files with any viruses, malicious code or other conditions which could damage or interfere with data, hardware or software; or
(iv) any content that, in Givity’s reasonably held opinion, is objectionable or which may expose Givity, its affiliates or Contributors to any harm or liability.
(n) Website means Givity’s website located at www.givity.com.au.
(o) Website Terms and Conditions means the terms and conditions applicable to all viewers of the Website (including the Contributors), that can be accessed on the Website.
2. Purpose of this Platform
(a) This Platform is intended to allow an entity (Campaign Organiser) to post an online fundraising campaign (Campaign) for the purpose of seeking monetary contributions (Contributions) from individuals and other entities (Contributors, you and your).
(b) It is acknowledged that while Givity makes the Platform available to facilitate the collection of Contributions from Contributors for a Campaign (Services), Givity is not otherwise a broker, financial institution, creditor or charity.
3. Access to the Platform
(a) Givity may, at its discretion, provide the Contributor with access to and use of the Platform. The Contributor acknowledges that Givity retains the sole discretion regarding the features, functions and other benefits of the Platform.
(b) The Contributor acknowledges and agrees that Givity may at any time vary, modify or suspend any features, functions and other benefits available to the Contributors in respect of the Platform, or any Contributor’s access to or use of the Platform.
4. Provisions of Services
(a) Givity will provide the Services to the Contributor in the manner determined by Givity (acting reasonably).
(b) Givity will endeavour to provide the Services in a timely manner. Due to the nature of the Platform, Givity cannot guarantee the continuous or uninterrupted availability or accessibility of the Platform (including due to any virus or Force Majeure Event).
(c) Givity may improve, enhance and modify the Platform at any time if it is necessary in the view of capacity limits, security or integrity of Givity’s servers, or to carry out maintenance measures for proper or improved functioning of the Platform.
(d) Givity will not, in any circumstances or for any reason outside of its reasonable control (including the occurrence of a Force Majeure Event), be liable for late or part provision of the Services. Without limiting this clause 4, the Contributor may not refuse to pay for the Services or cancel the Services because of any part or late provision of Services by Givity, and the Contributor agrees that Givity will not be liable for any Loss that the Contributor suffers as a result of any delay or cancellation.
5. Processing Contributions
(a) Givity is not a payment processor and does not handle funds directly. Instead, we use third party payment processors to provide our Services, which may require additional fees for payment processing.
(b) In order to make a Contribution to a Campaign, you will be required to provide Givity with payment details. You acknowledge and agree that we may exchange information with third party payment processes for the purpose of processing Contributions.
(c) Givity may, in agreement with the Campaign Organiser, take commission from the total Contributions made by Contributors to a Campaign.
(d) All Contributions are made by you at your own risk. We do not verify the information that Campaign Owners or Campaigns supply, nor do we represent or guarantee that Contributions will be used in accordance with any purpose promoted by the Campaign Owners or the Campaign.
6. Contributor Obligations
(a) must satisfy itself that the Platform is compatible with its own hardware, software and internet and network capabilities;
(b) is solely responsible for maintaining all hardware, software and other technology necessary to be able to access and use the Platform;
(c) must not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Platform;
(d) must not upload any Unacceptable Content to the Platform;
(e) must not distribute, rent, lease, lend, sell, licence or otherwise dispose of all or any part of the Platform; and
(f) must not (without limiting its obligations under clause) make any part of the Platform publicly available.
7. Content and intellectual property rights
(a) We own all of the intellectual property rights and content in the Platform (including any modification, alteration, development, new use, or other change to the Platform) other than any content submitted by you, and you agree not to infringe any intellectual property rights or content in the Platform.
(b) If you submit any content to the Platform you:
(i) grant us a non-exclusive, royalty-free right to use and reproduce such content; and
(ii) represent and warrant that you own and control all of the rights to such content or you otherwise have the lawful right to submit such content onto the Website.
(c) All copyright in the content of the Platform is owned or licensed by us. Except as permitted under the Copyright Act 1968 (Cth), no part of the content in the Platform may be directly or indirectly used, copied, stored, published, reproduced or transmitted in any form or by any means (including, but not limited to electronic, mechanical, photocopying, or recording) except with our specific and prior written consent or that of the copyright owner.
8. Warranty and disclaimer
(a) You agree that the Platform and its content may contain errors, faults and inaccuracies and may not be complete or current.
(b) All terms implied by law, except those that cannot be unlawfully excluded, are excluded.
(c) We make no representations, warranties or guarantees of any kind, express or implied, as to the operation, suitability or accuracy of the Website or its content, except as provided under applicable laws.
Givity makes no representation or guarantee as to whether all or any portion of your Contributions are tax deductible. Givity will have no liability for any claim by any tax authority with respect to the characterisation on any applicable tax return of any Contribution by you.
10. Errors and defects
We do not guarantee that the Platform will be free from errors or viruses, or that access to the Platform will function as intended or uninterrupted. You must take your own precautions to ensure that accessing the Platform does not expose you to the risk of viruses, malicious computer code or other forms of interference or damage to our computer system which arises in connection with your use of this Website.
(a) Givity will only retain such information pertaining to a Contribution that is needed to process a payment and to issue an official receipt to a Contributor.
(b) All data provided by you in relation to a Contribution is considered Confidential Information within the meaning of clause 1, and will be held in compliance with the Privacy Act 1988 (Cth).
(c) We will take all reasonable steps to ensure the security of the Platform. However, data transmissions over the internet cannot be guaranteed to be totally secure. Whilst we strive to protect information you transmit to us or which we store, we do not warrant and cannot ensure the security of such information. Our website will be protected by SSL, however all payment and credit card processing is handled by Stripe and we do not store any credit card information.
(a) In this clause, Data means all data, information, content or communications transmitted, uploaded or inputted onto the Platform by you or on your behalf or otherwise as a result of your use of the Platform or Services.
(b) You grant us a non-exclusive, perpetual, transferable, royalty free licence to make use of the Data, and Intellectual Property Rights subsisting in the Data, for the purposes of providing the Services to you, reporting on the outcomes of a Campaign and using de-identified Data for the purpose of analysing patterns of contribution and improving our Services, provided that we comply with the obligations in this document.
13. Intellectual Property Rights
(a) The Contributor acknowledges that Givity owns all of the intellectual property rights (including copyright) and related rights in the Platform, and nothing in these Terms grants the Contributor any ownership of, or rights in respect of, any intellectual property in the Platform.
(b) Where the Contributor submits or uploads any information, content or material to the Platform or otherwise provides Givity with any information, content or material as a result of, or in connection with, its access to and use of the Platform (Submitted Material), the Contributor assigns to Givity all of the intellectual property rights (including copyright) and related rights in the Submitted Material with such assignment effective on and from submission to Givity.
14. Suspension and Disablement
(a) The Contributor agrees that Givity may at any time and without any obligation to give notice to the Contributor:
(i) temporarily suspend or disable the Platform or the Contributor’s access to the Platform;
(ii) permanently disable the Contributor’s access to the Platform; or
(iii) permanently cease operating the Platform.
(b) The Contributor agrees that it cannot make any claim against Givity for any Loss suffered by the Contributor as a result any action taken by Givity pursuant to this clause.
15. No Express Warranties
(a) Givity does not provide any warranties or guarantees regarding the Platform or any of the information stored on or accessible from the Platform.
(b) Without limiting the above, Givity does not provide any representations or warranties:
(i) that the use or operation of the Platform will be uninterrupted or error-free;
(ii) that the Platform or any of its functions are suitable for any particular purpose or have any performance, functionality or security features;
(iii) that the Platform or any of the information stored on or accessible from the Platform will be compatible with any other computer software, computer hardware or other technology.
(a) The Platform may be accessed and used throughout numerous jurisdictions and Givity makes no representations that the Platform complies with the laws of any particular jurisdiction.
(b) The Contributor is solely responsible for complying with the laws in any jurisdiction in which they access or use the Platform.
17. Limitation of liability
(a) To the fullest extent permitted by law, the maximum aggregate liability of Givity for any Loss, however caused or suffered by the Contributor in connection with these Terms or its access to or use of the Platform is limited to $5.00.
(b) The Contributor acknowledges and agrees that Givity:
(i) operates the Platform through which it provides the Services to the Contributor;
(ii) is a facilitator of information sharing between the Contributor and third parties;
(iii) is not liable to the Contributor for any Loss arising out of or in connection with the Contributor’s choice, use or decision with respects the Campaigns or the Services, or any contractual arrangement that the Contributor has with such third parties;
(iv) excludes all loss, liability and/or damages which may be owed to the Contributor for any negligent act or omission undertaken by Givity or not.
(c) Notwithstanding anything to the contrary in these Terms, Givity is and will not be liable at any time for any act or omission of any third parties in connection with use by the Contributors of the Services or contribution to a Campaign made available to the Contributor through the Platform.
(d) Nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (or any equivalent State or Territory legislation) (Australian Consumer Law) or the Contributor’s rights to make a claim in respect of any consumer guarantees or other provision of the Australian Consumer Law.
(e) If the Contributor is a “Consumer” for the purposes of section 3 of the Australian Consumer Law and the goods and services which Givity provides in respect of the Contributor’s access to and use of the Platform are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then Givity’s liability to the Contributor in relation to any claim relating to the Contributor’s access and use of the Platform or otherwise arising under or in connection with these Terms is limited, at Givity’s election and discretion to:
(i) if applicable, in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
(f) To the extent permitted by law, all claims arising under or in connection with these Terms must be commenced within six months of the relevant events giving rise to the claim first occurring, and all claims not commended within such period are absolutely and forever barred.
(g) The limitations of Givity’s liability in this clause apply whether the claim is in contract, tort (including without limitation, negligence) equity or otherwise and even if Givity has been notified of the possibility of such loss or damage and the Contributor agrees that Givity’s liability, if any, to the Contributor at law will be reduced by the extent, if any, to which the Contributor contributed to the Loss.
18. Consequential Loss
Without limiting clause 17, Givity is not liable in any circumstances for any Consequential Loss (however caused) suffered or incurred by the Contributor in connection with these Terms or the use of the Platform. This clause applies even if Givity knew or ought to have known that the relevant Consequential Loss would be suffered or incurred by the Contributor.
The Contributor agrees to indemnify and to keep Givity indemnified against any loss or damage suffered or incurred by Givity which arises directly or indirectly out of:
(a) any breach of these Terms by the Contributor;
(b) any Unacceptable Content being uploaded to the Platform by or on behalf of a Contributor; or
(c) any access to or use by the Contributor of the Platform or any of the information stored on or accessed using the Platform (including, without limitation, the Generated Information).
(a) Unless otherwise expressly stated in writing, all amounts payable by the Contributor in connection with these Terms do not include an amount for GST.
(b) If GST is payable on any supply made by Givity under these Terms, the Contributor must pay to Givity, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply.
(c) Where the Contributor is required by these Terms to reimburse or indemnify Givity for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Givity will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by Givity in respect of the reimbursement or payment.
(d) This clause does not merge on completion or termination of these Terms.
(e) In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.
(a) The Contributor acknowledges and agrees that where personal information or sensitive information (as such term is defined in the Privacy Act 1988 (Cth)) is collected by Givity in connection with these Terms or the use of the Platform by the Contributor, such personal information or sensitive information will be collected, maintained and used in accordance with and for the purposes as set out in Givity’s Privacy Collection Statement that is available on the Website.
(b) The Contributor consents, and where applicable, will procure that its employees, contractors, officers and agents consent to Givity collecting, holding, using and disclosing any such personal information and sensitive information for all purposes specified in Givity’s Privacy Collection Statement.
22. Dispute Resolution
(a) Before taking any court action, a party must use their best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
(b) If the parties are unable to resolve a dispute through good faith negotiations, either party may refer the dispute to mediation in accordance with the current Mediation Rules of the Resolution Institute (Rules). The parties agree that the Rules set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of those Rules are incorporated by reference in these Terms.
(c) If the parties fail to settle any dispute in accordance with clause 22(b), the parties may agree to submit the dispute for resolution to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
(d) Each party must, to the extent possible, continue to perform its obligations under these Terms during a dispute until the resolution of such dispute.
(e) Nothing in this clause is to be taken as preventing any party to a dispute from seeking interlocutory relief in respect of such dispute.
(a) Givity may, at its sole discretion, vary or modify these Terms.
(b) Any subsequent use of the Platform by the Contributor since the date that notice is given will constitute an acceptance of those variation or modification and an intention on the part of the Contributor to be bound by the varied or modified Terms.
(a) Nothing in these Terms constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
(b) These Terms will be construed and interpreted in accordance with the laws of the state of New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of courts of that jurisdiction.
(c) The Contributor may not assign or otherwise deal with any of its rights or obligations under these Terms without the prior written consent of Givity.
(d) Givity may assign, novate or otherwise deal with its rights under these Terms at any time effective immediately upon Givity notifying the Contributor of the assignment or novation.
(e) These Terms constitute the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
(f) Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents comprising these Terms, the following order of precedence shall apply to the extent of the inconsistency:
(i) these terms and conditions forming the Platform Terms and Conditions;
(ii) the Website Terms and Conditions; and
(g) If a party is prevented, hindered or delayed from performing its obligations under these Terms by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
(h) If any provision of these Terms is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
(i) No failure to exercise or delay in exercising any right given by or under these Terms to a party constitutes a waiver and the party may still exercise that right in the future.
(j) The Contributor agrees and acknowledges that Givity may subcontract the performance of any of its obligations or the exercise of any of its rights under this agreement to any person without the consent of the Contributor and on such terms and conditions as Givity deems fit from time to time.
(k) Any clause that is expressed to survive or which by its nature, is intended to survive termination or expiry of these Terms, survives termination or expiry.
11 September 2021