Customer Terms

This Agreement commences from the Effective Date between:

Online Giving Ltd a company incorporated in England and Wales having its registered offices at Office 6, 155 Minories, London, EC3N 1AD, with company number 06886190 (“Enthuse”); and 

The Entity Signing the agreement (“the Customer”) (each a “party” and together the “parties”).

BACKGROUND

  1. Enthuse provides its SaaS platform to facilitate the collection and management of donations, events and fundraising for charitable causes.
  2. Enthuse holds donations in a general client account and in Stripe client accounts.  It collects donations from the general public using a number of payment methods, including merchant providers.  It then transfers those donations to charities, after deduction of fees and refunds, and after completing a number of administrative tasks.
  3. Enthuse’s platform (Platform) contains a record of debits and credits passing through the merchant provider accounts and creates a ledger record of the transactions completed on behalf of each charity. The global balance in the general client account and the Stripe client accounts is reconciled by Enthuse as part of its bookkeeping and FCA compliance processes. 
  4. The Platform creates a record of the actual transactions in relation to Donations and Enthuse manages that record on behalf of its customers as a Small Payment Institution regulated by the FCA.
  5. Enthuse has sole responsibility for processing Donations, recovering overdue amounts and putting into effect payment of sums due to the Customer.  Whilst it uses intermediaries/third-party providers to collect donations via their accounts, Enthuse is responsible for, amongst other things, addressing fraudulent activity directly with a donor.
  6. Enthuse has agreed to provide its services to the Customer and the Customer has agreed to receive those services on the Terms set out below.

1. DEFINED TERMS

The definitions and rules of interpretation in this clause apply in this agreement.

Agreement: The Invoice, Quotation Form, the schedules, and these terms,

Chargeback: a charge that is returned to a payment card after a Donor successfully disputes an item.

Charity:  a charity that: 

  1. is registered with the Charity Commission (for registered charities in England and Wales) or the Charity Commission for Northern Ireland (for registered charities in Northern Ireland) or The Charities Regulatory Authority (for registered charities in the Republic of Ireland) or the Scottish Charities Register (for registered charities in Scotland) or the relevant local body that regulates charities for other countries; and 
  2. has been approved by Enthuse to feature on a Site.

Confidential Information: means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers; past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development; and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.  Subject to the foregoing exclusions, Donor Data will be treated as Confidential Information of Enthuse under this Agreement regardless of whether or not it is designated as confidential.

Corporate:  a company that is registered at Companies House or the relevant corporate registration body for its country of incorporation.

Corporate Platform: a fundraising platform hosted and owned by Enthuse on behalf of a Customer which is a Corporate.

Community Platform: a fundraising platform hosted and owned by Enthuse on behalf of a Customer which is a Charity including the Customer’s ‘Linked Charities’ (as defined by the Charity Commission).

Custom Field: data collection fields added by the Customer over and above the standard out-of-the box fields offered by Enthuse.

Customer Materials: includes any content provided by the Customer to Enthuse from time to time for the purposes of the Services (including but not limited to images, videos, text content needed to set up the Site).

Direct Debit Indemnity: a direct debit payment that is returned after a Donor successfully disputes a payment. 

Domain Name: any URL owned by the Customer, or purchased by Enthuse on behalf of the Customer, for the purposes of the Agreement.

Donation: each sum of money paid by a Donor via the Services.

Donation Site: donations platform which is hosted and owned by Enthuse, pursuant to the Agreement to facilitate the making of online donations to a charity or charities.

Donor: a Visitor who makes a Donation via the Services. 

Donor Data: any information provided to Enthuse by a Donor, a Fundraiser or an Event Participant.

Donor Materials: includes any content uploaded to the Site by Event Participant, Fundraiser or Donor (including but not limited to images, videos, text content needed to set up the Fundraising Page or make a Donation.)

Effective Date: the date of this Agreement.

Event: an event which is the subject of an Events Site.

Event Participant: a participant in an Event.

Events Site: event management page(s)

Featured Charity: A Charity featured on any Corporate or Community Platform.

Fee: each fee set out in the Schedules.

Fundraiser: a Visitor who creates a Fundraising Page on the Fundraising Site.

Fundraising Partnership: a collaborative venture between Enthuse and a third party or third parties to raise money for a Charity or Charities.

Fundraising Pages:  pages created by the Fundraiser on a Fundraising Site to facilitate a Donation by a Donor. 

Fundraising Site:  a fundraising platform which is hosted and owned by Enthuse, pursuant to the Agreement to facilitate the generation of Fundraising Pages by Fundraisers.

Gift Aid: a UK government scheme that allows a UK Charity to reclaim in relation to a Donation the basic rate tax that the donor pays as a UK taxpayer.

Gift Aid Amount: the amount that a UK Charity is entitled to recover under Gift Aid.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Invoice: an invoice detailing the services to be received by the Customer.

Net Donation: each the sum received by Enthuse from a Donor, less the Transaction Fee.

Quotation Form: means the form generated by Enthuse by which the Customer agrees to receive the Services.

Recurring Payment Schedule: a recurring credit/debit card or direct debit payment schedule established by a Donor to make Donations via the Services that is paid to Enthuse.

Renewal Date: the date on which this agreement automatically renews being the same date in the month or year (as applicable to the nature of the engagement) as the Effective Date.

SaaS: any element of the Services which comprises software as a service.

Services: the services to be provided pursuant to the Agreement (as further described in the Schedules), as specified in the relevant Quotation Form and Invoice.

Site: a Fundraising Site, Events Site or Donation Site as specified in the relevant Quotation Form and Invoice.

Software: the online software applications provided by Enthuse as part of the Services.

Sophisticated Cybersecurity Attack:  a novel attack whether widespread or targeted in nature, via cyberspace, targeting an enterprise’s use of cyberspace for the purpose of disrupting, disabling, destroying, copying or maliciously controlling a computing environment/infrastructure; or destroying the integrity of the data or stealing controlled information, that uses malware, phishing, machine learning and/or artificial intelligence or other novel software or technology that is not available at the date of this Agreement.

Subscription Fee: any subscription fee charged in respect of the Services as set out in the Quotation Form or otherwise agreed by the parties in writing.

Supplementary Services: ‘Add-on Packages’, ‘Add-on Features’ and additional Services (each as defined at www.enthuse.com/solutions/).

Term: the term of this Agreement.

Visitor: a visitor to a Donation Site, an Events Site or a Fundraising Site.

  1. References to “writing” or “written” include email.
  2. References to “content” include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.
  3. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
  4. Where there is any conflict or inconsistency between the provisions of the Agreement and documents referred to in the Agreement, such conflict or inconsistency shall be resolved according to the following order of priority: a) the Invoice; b) the Quotation Form; d) Schedules; e)the terms of this Agreement.

2. COMMENCEMENT AND TERM

The term of this Agreement shall commence on the Effective Date and shall continue, subject to earlier termination under clause 11, until terminated by either party giving notice. Such notice to take effect on a Renewal Date and in the case of a monthly engagement to be of at least 30 days.

3. OBLIGATIONS OF ENTHUSE

  1. In consideration of payment of the Fees, Enthuse shall provide the Services in accordance with the terms of this Agreement.
  2. Enthuse shall:
    1. perform the Services with reasonable care, skill and diligence; and
    2. cooperate with  the Customer in matters relating to the Services.
  3. Enthuse’s Software is compatible with the current and immediately-previous version of Microsoft Edge, Google Chrome and Apple Safari on desktop, tablet and mobile. The Customer acknowledges that the Software may not work identically, efficiently, and effectively with other browser types or may not operate at all.
  4. Supplementary Services may be provided by Enthuse, in accordance with the Agreement, if agreed by the parties in the Quotation Form and Invoice and/or in writing. 

4. OBLIGATIONS OF THE CUSTOMER

  1. The Customer acknowledges that the ability of Enthuse to provide the Services is dependent upon the Customer’s full and timely co-operation (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data provided.  Accordingly, the Customer agrees to provide Enthuse with access to, and use of, all information, data and documentation reasonably required by Enthuse for the performance by Enthuse of its obligations under the Agreement.
  2. The Customer shall be responsible for: 
    1. the accuracy and completeness of the Customer Materials, including on the Site;
    2. providing all the Know Your Customer (KYC) and banking information requested by Enthuse as part of the registration process in order to activate electronic fund transfers and pre-authorised debits;
    3. informing Enthuse if it receives a Donation that it is not entitled to receive;
    4. informing Enthuse of any suspicious activity / transactions it might notice in accordance with the Financial Crime Prevention and Anti Money Laundering regulations;
    5. Ensuring that any Donation is used in accordance with any stated purpose or specific fundraising appeal and acknowledges and agrees that Enthuse does not monitor or control the activities of each charity ; and
    6. ensuring that any content uploaded to the Site by any person other than Enthuse:  a) does not infringe any applicable laws, regulations or third party rights or include material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing or blasphemous (“Inappropriate Content”); and  b) is in compliance with Enthuse’s Acceptable Use Policy at https://enthuse.com/website-terms/

      and Enthuse shall be entitled to remove content without notice, from the Site where it reasonably suspects such content is Inappropriate Content.  Each party shall notify the other party promptly if it becomes aware that any content on the Site may be Inappropriate Content.
  3. Payment of each Invoice shall be made by the Customer to Enthuse as set out in the Invoice (typically for Direct Debits and credit/debit cards, payment is taken immediately and for BACS, the Customer has 14 days from Invoice date to pay, unless agreed otherwise in writing by the parties).
  4. The Customer acknowledges and agrees that it is responsible for ensuring that appropriate settings and internal Customer procedures are in place to ensure that only users duly authorised by the Customer have access to the Customer’s Enthuse account.
  5. The Customer acknowledges and agrees that: 
    1. Enthuse is not licensed by the Gambling Commission and that Enthuse does not promote or facilitate lotteries; 
    2. Enthuse does not differentiate between credit and debit cards and does not conduct age verification; 
    3. Enthuse may in its sole discretion decline to process payments if it considers the arrangements in relation to them to be a lottery prohibited by the Gambling Commission’s rules on raffles, lotteries and credit card payments https://www.gamblingcommission.gov.uk/public-and-players/guide/gambling-using-a-credit-card); and
    4. the Customer is solely responsible for ensuring that any requirements of the Gambling Commission in relation to lotteries are met in relation to any activities of the Customer in relation to the Services.

5. THIRD PARTY PRODUCTS

  1. The Services are integrated with various third party services, applications and/or software (collectively, “Third Party Products“) which are necessary for certain content such as email services, newsletters, mapping, cloud storage, payment processing and security. A list of the Third Party Products shall be supplied to the Customer where requested in accordance with the relevant third party’s standard terms.  The licence fee for such Third Party Products is included in the Fees.
  2. Enthuse is not responsible for defects in Third Party Products or any changes made to them by a third party or any resulting defects in the Services but shall use its reasonable endeavours to address those defects.
  3. The Customer agrees that Enthuse may, at any time at its discretion and without any notice to the Customer, replace a Third Party Product with another with similar functionality, provided that the Services continue to be delivered in accordance with the terms of this Agreement.

6. SUBSCRIPTION FEES AND OTHER FEES

Subscription Fees

  1. The Customer agrees to pay the Subscription Fee in advance at the intervals and on the dates agreed by the parties in writing.  The Subscription Fee is not refundable.
  2. Enthuse may increase subscription fees each year and will notify the finance contact we have on record for the account via email when price increases occur. The Customer will be informed at least 14 days before the price change becomes effective. The Customer will have the opportunity to cancel the Services before the price change takes effect in accordance with section 11.

Other Fees

  1. The Customer agrees to pay any other Fees on the terms set out in the Schedules.
  2. Enthuse reserves the right from time to time to change the Transaction Fee and/or Event Fee as well as to introduce new fees and charges. Enthuse will use commercially reasonable efforts to notify the Customer of any changes by email and will post its current fees on its website. Changes to the fees will be published on its website in advance of the effective date of the change and will become effective as of the date indicated as the “effective date” in such posting.

All Fees

  1. All fees are exclusive of VAT which shall be payable in addition by the Customer at the local prevailing rate.
  2. Invoice queries must be raised within 14 days of the relevant Invoice being received and shall only be raised in good faith.  Any undisputed amounts shall be paid in accordance with the provisions of each Quotation Form and Invoice.
  3. Enthuse reserves the right to charge interest on any amounts outstanding under this Agreement, with the rate of interest applying being four percent above the Bank of England Base Rate. 
  4. The Customer authorises Enthuse to deduct any Fee outstanding for more than one (1) month after the due date from any Donations received by Enthuse.

7. WARRANTIES AND UNDERTAKINGS

  1. Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
  2. Enthuse shall perform the Services in accordance with good industry practice.
  3. Both the Customer and Enthuse agree at all times to comply with all applicable laws, statutes and regulations, including, without limitation, all applicable privacy laws.
  4. This Agreement sets out the full extent of Enthuse’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

8. LIMITATION OF LIABILITY AND REMEDIES

  1. Nothing in this Agreement shall operate to exclude or limit either party’s liability for: a) death or personal injury caused by its negligence; b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; c) fraud; or d) any other liability which cannot be excluded or limited under applicable law.
  2. Enthuse shall not be liable to the Customer for: a) damage to or loss of data; b) loss of profit; anticipated profits; anticipated revenues; anticipated savings; goodwill or business opportunity; c) any indirect or consequential loss or damage; or d) any direct or consequential loss or damage.
  3. The Software is provided to the Customer on an “as is” basis without representations, warranties or conditions of any kind. Enthuse disclaims all warranties, conditions and representations of any kind, whether express, implied or collateral, including, but not limited to, all conditions, representations or warranties of merchantability, of fitness for a particular or general purpose, of non-infringement, of compatibility, or that the Software is secure, or error free or will operate without interruption or will be provided in a timely or proper manner or at all.
  4. Enthuse does not warrant and gives no guarantee that the Software or any content provided pursuant to the Services, including any Supplementary Services or Third Party Products, will be: a) available or uninterrupted; b) free from errors or omissions; and/ or c) free from bugs or viruses.
  5. Subject to clause 8.1, Enthuse’s liability per claim and in aggregate in respect of claims based on events in any period of twelve months arising out of or in connection with this Agreement or any  contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £1,000 (one thousand Great British Pounds).

9. INTELLECTUAL PROPERTY RIGHTS

  1. All Intellectual Property Rights in the Software, the Donor Data (where Enthuse is the Data Controller), each Site and any other output of the Services, but excluding the Customer Materials, Donor Materials and the Domain Name, shall be the property of Enthuse, and Enthuse hereby grants the Customer a non-exclusive, revocable licence of such Intellectual Property Rights for the purpose of using and receiving the Services for the Term.
  2. Any Intellectual Property Rights (regardless of the form or content in which they are disclosed or stored) including any marks, trade names, patents or appropriate documents, know-how being technical or otherwise and copyright owned by the Customer at the date of this Agreement, whether registered or unregistered shall remain the sole property of the Customer. 
  3. The Customer shall indemnify Enthuse against all costs, damages, losses and expenses arising out of any action or claim that the Customer Materials or Donor Materials infringe the Intellectual Property Rights of a third party and Enthuse shall indemnify the Customer against all damages, losses and expenses arising out of any action or claim that the Intellectual Property Rights in the Software and any output of the Services (excluding the Customer Materials, Donor Materials  and the Domain Name) infringe the Intellectual Property Rights of a third party.
  4. The indemnity in clause 9.3 is subject to the following: a) the indemnified party promptly notifies the indemnifier in writing of the claim; b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent; c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

10. DATA PROTECTION

  1. The Customer acknowledges that for the use of the Donation and Fundraising Products; a) Enthuse will be the controller for any personal data collected when a user registers on the site and the personal data collected for the purpose of processing donations. b) Enthuse will be the controller for the personal data collected in relation to card payments, Direct Debits and technical details. c ) Enthuse will be the processor and the Customer will be the controller for any personal data captured by custom fields inserted by the Customer and any personal data added by users to Fundraising Pages created using the Services.
  2. The Customer acknowledges that for the Events Product; a) Enthuse will be the controller for the personal data collected in relation to card payments and technical details b) Enthuse will be the processor and the Customer will be the controller for all other personal data collected and processed using the Events Product.
  3. Should Enthuse acting as a controller disclose personal data about users to the Customer, the Customer shall be an independent controller of all such personal data from the point of receipt.
  4. Where Enthuse is acting as a processor, the terms of clauses 10.12, 10.13, 10.14 and 10.15 shall apply.
  5. Where Enthuse is acting as a processor, the nature, subject matter and purposes of processing are as set out in the Data Privacy Notice on the Enthuse web site at https://www.enthuse.com/privacy.
  6. When processing personal data as a controller, Enthuse shall comply with its Privacy Notice as updated from time to time in line with best practice and legal requirements).
  7. Each party will comply with all applicable requirements of the “Data Protection Legislation”; this means: a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data. “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018. b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Enthuse is subject, which relates to the protection of personal data. “EU GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
  8. Clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
  9. Enthuse will use best endeavours to collect, protect and secure the personal details of Donors, Event Participants and Fundraisers in accordance with applicable Data Protection Legislation. Where a Donor, Event Participant or Fundraiser has chosen to allow Enthuse to pass their personal data onto the Customer, Enthuse may do so, and the Customer agrees to only use that data strictly for the purposes and in the manner consented to by the Donor, Event Participant or Fundraiser and not disclose any personal details to any third party except with the consent of the Donor, Event Participant or Fundraiser. Enthuse will not be liable in any way whatsoever for any such disclosure of personal details by the Customer in breach of this clause 10.9.
  10. For the purposes of clause 10 “controller”, “data subject”, “personal data”, “processor”, and “processing” shall have the meanings ascribed to them in Data Protection Legislation.
  11. For the purpose of clause 10, “Standard Contractual Clauses” shall mean the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021 as amended, superseded or replaced, and “UK Addendum” shall mean the International Data Transfer Addendum issued by the UK Information Commissioner under section 119A(1) of the Data Protection Act 2018 as amended, superseded or replaced.
  12. The following types of personal data relating to Donors, Fundraisers and Supporters of the Customer described at https://enthuse.com/privacy/ will be processed by Enthuse during the term of this Agreement.
  13. The personal data is processed by Enthuse for the following purposes: a) to manage user accounts, and to respond to end user queries or comments;  b) make payments to the Customer for donations, purchases or other transactions;  c) store custom data and other fields within a cloud based dashboard for the Customer to search, manipulate and export; d) meet its legal and regulatory obligations relating to Anti Money Laundering (AML), Politically Exposed Person (PEP) and Know Your Customer (KYC) checks. e) other purposes that the Customer and Enthuse may agree from time to time in writing.
  14. Insofar as it processes personal data on behalf of the Customer as a processor (“Protected Data”), Enthuse agrees that it will observe all of its obligations under the Data Protection Legislation. In particular, Enthuse will:
    1. process Protected Data only on instructions from the Customer, as such instructions are given and varied from time to time by the Customer, unless otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so);
    2. ensure that all personnel who have access to and/or process Protected Data are obliged to keep the Protected Data confidential;
    3. implement appropriate technical and organisational measures to protect the Protected Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, access, appropriate to the harm that might result and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
    4. not transfer Protected Data outside the UK or European Economic Area, as applicable, unless the following conditions are fulfilled: i) the data subject has enforceable rights and effective legal remedies; and ii) the Protected Data is only processed in a country or by an international organisation which the Secretary of State has confirmed has an adequate level of protection (an adequacy regulation). This includes the use of approved frameworks for the sharing of personal data, such as the UK Extension to the EU-US Data Privacy Framework; or ii) Enthuse enters into either an International Data Transfer Agreement (IDTA) or Standard Contractual Clauses (SCCs) (with the UK Addendum, if applicable) with the receiving organisation; 
    5.  promptly refer to the Customer any requests, notices or other communication from data subjects, the Information Commissioner or any other law enforcement authority relating to Protected Data;
    6. provide such information to the Customer as it reasonably requires, and within the timescales specified, to allow the Customer to comply with the rights of data subjects and meet any obligations imposed by Data Protection Legislation and the Information Commissioner’s Office relating to Protected Data and provide reasonable assistance and cooperation to Customer in complying with the obligations of Controllers under Articles 32-36 in the Data Protection Legislation in respect of any Protected Data;
    7. maintain complete and accurate up-to-date records and information to demonstrate compliance with its obligations relating to Protected Data under this Agreement and allow for and contribute to audits by the Customer of this information;
    8. notify the Customer without undue delay and no later than 72 hours after Enthuse has become aware of a breach affecting any Protected Data; and
    9. notify the Customer in advance, where possible, of any legal requirements that it is subject to which may require the disclosure of Protected Data.
    10. On termination of this Agreement, delete or return the Protected Data to the Customer.
  15. Subject to Enthuse satisfying the conditions set out in clause 10.14, the Customer authorises Enthuse to outsource or subcontract the processing of information, including Protected Data. Enthuse will maintain a list of sub-processors which can be provided on request;
  16. In the event that Enthuse appoints a Sub-Processor, it shall:
    1. enter into a Sub-Processing Agreement with the Sub-Processor which shall impose upon the Sub-Processor the same obligations as those imposed upon Enthuse by this Agreement; and
    2. In the event that a Sub-Processor fails to meet its obligations under any Sub-Processing Agreement, Enthuse shall remain liable to the Customer for failing to meet its obligations under this Agreement.
  17. The Customer shall ensure that it has appropriate wording in its privacy notice, its communications and its agreements with users so that the Customer may pass users’ donations and fundraising personal data to third parties and third parties’ suppliers or partners (e.g., third party payment processing platforms/providers) for the purposes set out in clause 10 of this Agreement and clause 5.3 of Schedule 1.
  18. The clauses relating to data protection in this Agreement may be varied from time to time to comply with changes in applicable law.

11. TERMINATION

  1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if: a) the other party fails to pay an amount due under this agreement on the due date for payment and remains in default not less than 7 (seven) days after being notified in writing to make such payment;  b) the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so; c) the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause; d) the other party suspends or ceases, or threatens to suspend or cease, carrying on business. 
  2. Enthuse may terminate the Agreement, with or without cause and without paying termination fees, Fees or amounts, at any time giving written notice to the Customer. Any subscription fees will be refunded on a pro-rata basis from the beginning of the current subscription period.
  3. Termination by the Customer. The Customer may terminate the Agreement at any time by submitting the termination form available in the Customer administrator account and such request must be from an authorised person from the Customer. 
  4. Upon expiry of termination of the Agreement:  a) all outstanding Fees will become due immediately; b) all licences granted by Enthuse under this Agreement shall terminate immediately; c) all Customer Materials and Donor Materials will be handled in line with the Data Retention and Destruction Policy.  d) Enthuse shall be under no obligation to provide other data, including but not limited to, database logs or metadata, to the Customer; e) unless it requests removal in writing at charityremoval@enthuse.com, a Customer which is a Charity will remain in Enthuse’s database of Featured Charities; and f) only any provision of this Agreement which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

12. VARIATION

  1. We may revise these terms of use at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we made, as they are binding on you. Some of the provisions contained in these terms of use may also be superseded by provisions or notices published elsewhere on our site.
  2. Notwithstanding anything to the contrary in this Agreement, Enthuse reserves the right at its sole discretion to introduce new services and update or withdraw any of the Services and will not be liable to the Customer for any consequences of it exercising this right.

13. FORCE MAJEURE

Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (including, without limitation, Sophisticated Cybersecurity Attack). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for one month, the party not affected may terminate this agreement by giving fourteen days’ written notice to the affected party.

14. CONFIDENTIALITY

  1. Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2
  2. Each party may disclose the other party’s Confidential Information: a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 14; and b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15. NOTICES

Day to day communications between the parties will be in English and will be conducted by letter, phone or email using the main contact details provided by the Customer, or by a message posted to the Enthuse website.

Any notice given to Enthuse under or in connection with this Agreement shall be given in writing to:

Legal Department
Online Giving Ltd (Enthuse)
Office 6
155 Minories
London
EC3N 1AD

or emailed to legal@enthuse.com  

Any notice to the Customer under or in connection with this Agreement, shall be given in writing (including email or post) to the main contact that the Customer has provided to Enthuse.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16. PUBLICITY

All media releases, public announcements and public disclosures by either party relating to this Agreement or its subject matter, including promotional or marketing material, shall be coordinated with the other party and approved jointly by the parties prior to release. Such approval will not be unreasonably withheld or delayed.

Notwithstanding clause 16.1, the Customer acknowledges that during the Term and following termination or expiry of the Agreement, Enthuse may feature any Customer which is a Charity on any Enthuse webpage including webpages on the Corporate Platforms.

17. ASSIGNMENT

Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

18. ENTIRE AGREEMENT

  1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

19. THIRD PARTY RIGHTS

A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

20. WAIVER

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21. RIGHTS AND REMEDIES

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

22. SEVERANCE

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

23. GOVERNING LAW

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

24. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation provided that either party may enforce any judgement of the courts of England and Wales in the courts of any jurisdiction.

SCHEDULE 1 – DONATIONS AND FUNDRAISING

Part 1 – applicable to all customers

1. DEFINITIONS

  1. The following definitions are used in this Schedule 1:
    Transaction Fee: the sum of the following:
    1. the “Platform Fee“: a percentage of the value of any Donation; and
    2. the “Payment Provider Fee”: a percentage of the Donation net of Gift Aid (if applicable), plus a fixed fee for credit and debit cards (e.g., Visa, Mastercard & Amex cards, Direct Debits & Digital Wallet payments, including Apple/Google Pay); and
    3. the “Gift Aid Claiming & Processing Fee”: a percentage of the Gift Aid Amount (if applicable); and
    4. the “Paying In Fee”: a fixed percentage of the amount paid in,

      in each case the applicable percentage and/or fixed fee being identified from Our Pricing
  2. The Services include:
    1. access to the Donations and Fundraising Sites;
    2. hosting the Donations and Fundraising Sites on Enthuse’s server; 
    3. collection of Donations;
    4. if applicable, events and appeals;
    5. where Enthuse is notified by HMRC, processing and claiming Gift Aid on behalf of the Customer in accordance with paragraph 4 of this Schedule 1; and
    6. such other services as agreed by the parties in writing from time to time.
  3. For a period of seven (7) days from the date of delivery of the Site to the Customer, the Customer may make reasonable requests for alterations to the Site in order to rectify configuration/setup issues (“Alteration Period”).  Following the Alteration Period the Site will be deemed accepted by the Customer.  The right to make requests will not apply to any repairs or alterations to the Site or other Services made subsequent to delivery.
  4. Enthuse will hold Donations in its client account at a bank assessed as appropriate by Enthuse until they are disbursed in accordance with the terms of this Agreement. No interest will be paid on the funds held or processed by Enthuse.

2. CONSEQUENCES OF TERMINATION

  1. The following shall apply post-termination:
    1. Enthuse may retain the Site and the supporting content and data, at its discretion, for audit or other record retention purposes but shall be under no obligation to transfer it in whole or in part to the Customer or any third party;
    2. from the termination date, the Site will be disabled and new Donors will no longer be allowed to Donate to the Charity. The Customer must remove all links to the Site from its website;
    3. Enthuse shall pay any Donations due to the Charity in respect of the period prior to termination to the Charity in accordance with this Agreement;
    4. Enthuse may at its discretion delete Recurring Payment Schedules. The Recurring Payment Schedules cannot be transferred to the Customer or its nominated payment processor;
    5. Enthuse shall continue to submit Gift Aid data to HMRC relating to Recurring Payment Schedules and other unclaimed Gift Aid relating to other Donations.

Part 2 – applicable only to uk charities

3. COLLECTION OF GIFT AID

  1. Enthuse is an approved HMRC Gift Aid nominee agent.  To benefit from the Services detailed in this paragraph 4 the Charity must be registered for Gift Aid with HMRC and must:
    1. provide HMRC with a completed HMRC form (ChV1 or equivalent) authorising Enthuse as a nominee to submit Gift Aid claims on its behalf; and
    2. provide a valid HMRC registration number to Enthuse.
  2. Enthuse will:
    1. where appropriate, offer all Donors the option of making Donations in a way that is eligible for Gift Aid provided that Enthuse is not responsible for the consequences of use of inaccurate, incomplete or out of date information provided by a Donor in relation to Gift Aid; and
    2. on behalf of the Charity and subject to the Charity registering with HMRC for this purpose, apply to HMRC to reclaim Gift Aid Amounts in compliance with HMRC recommended practice provided that if any sums claimed by Enthuse on behalf of the Charity are subsequently challenged or not settled by HMRC, the Charity will be responsible for resolving the matter with HMRC and, where applicable, repaying any disputed sum directly to HMRC.
  3. The Customer shall ensure that the Site enables eligible Donors to authorise collection of Gift Aid including, but not limited to, using language provided by Enthuse to request Gift Aid.  The Charity shall be responsible for making any changes required by Enthuse, or HMRC, in order to ensure the Site is compliant with this paragraph 4 and any applicable law, or guidance, regarding the collection of Gift Aid.

4. PROCESSING DONATIONS

  1. Donations may be processed and transferred to a Charity by way of Enthuse’s online payment systems:
    1. Donations made by credit, debit card or direct debit: process via Enthuse’s online payment gateways; or
    2. Donations made via Stripe Custom Connect accounts (www.stripe.com/gb/legal/connect-account): to a Stripe Custom Connect account set up by Enthuse for the Charity (provided that the Charity completes all relevant Stripe KYC).
  2. Donations may be processed by platforms that have been discontinued for new customers, including:
    1. Stripe Standard Connect (www.stripe.com), the Charity should have an account with Stripe and this account must be connected to its Charity account; 
    2. PayPal Connect, the Charity should have an account with PayPal (www.paypal.com) and this account must be connected to its Charity account;
    3. GoCardless (www.gocardless.com), the Charity should have an account with GoCardless and this account must be connected to its Charity account.
  3. The Charity authorises Enthuse to create an account for the Charity if required by a payment services provider, including accepting suppliers’ or partners’ standard terms and conditions and submitting the Charity’s details to the payment services provider.  Enthuse shall not be liable to the Charity for any damage or loss the Charity may incur as a result of creation and management of authorised accounts, save to the extent directly caused by the negligence of Enthuse.  
  4. The Charity authorises Enthuse to hold Donations (not via Stripe) from Donors in Enthuse’s general client account.
  5. Enthuse and/or its payment processing provider may refuse to accept and process a Donation if it reasonably believes that:
    1. the Donation relates to fraudulent activities of any kind or is otherwise illegal;
    2. the Donation has not been properly authorised; and/or
    3. information provided in relation to a Donation is not complete and accurate.
  6. Any donations setup as Recurring Payment Schedules are non-transferrable and cannot be transferred to the Customer or its nominated payment processor.

5. PAYMENTS

  1. On transfer of a Net Donation by Enthuse to the Charity, it becomes part of the Charity’s unrestricted, restricted or otherwise designated charitable funds and (if applicable) becomes eligible for Gift Aid.  Transfers are made (as applicable to the Charity’s donation method(s)) in accordance with the following schedule:
    1. Transfers from Enthuse’s online payment systems: a) Enthuse’s online payment gateways: the twentieth day of the month following the date of the Donation, or the nearest working day thereafter; b) Stripe Custom Connect: according to Stripe’s terms and conditions. (www.stripe.com/gb/legal/ssa)
    2. Transfers from platforms that have been discontinued for new customers, including: a) Stripe Standard Connect according to Stripe’s terms and conditions. (www.stripe.com/gb/legal/ssa) b) GoCardless Direct Debit: on the Friday of the week following the date of the Donation, or the nearest working day thereafter c) PayPal as their merchant account): in accordance with PayPal’s terms and conditions; and
  2. At its absolute discretion (and without restriction, whether imposed by a third party or otherwise) Enthuse may pay sums to the Customer in advance of the due date.
  3. Enthuse may delay any payment in respect of a Donation where it reasonably believes that the Donation is fraudulent and/or was not initiated by the Donor, and/or may be subject to a Chargeback or Direct Debit Indemnity claim.
  4. Enthuse reconciles all Donations, makes any necessary refunds and verifies all data to ensure that calculation of sums due to a Charity (taking into account each month any unpaid funds from previous months) is complete and accurate.  
  5. The amount transferred to the Charity will be the Net Donation.  The Customer (where applicable on behalf of the applicable Charity) authorises Enthuse to deduct from sums received from Donors the Transaction Fee together with any Subscription Fee which is not paid within thirty days of the due date.
  6. Enthuse may provide a Donor with the option of paying an amount directly to Enthuse (“Tip”) in addition to the Donation.  If the Donor pays a Tip, the Platform Fee for the Donation will not be payable by the Customer (although the Gift Aid Claiming & Processing Fee will remain due on any Gift Aid Amount) and Enthuse will retain the Tip. Enthuse reserves the right at any time to withdraw the option for a Donor to pay a Tip and from the date of withdrawal the Platform Fee will be payable by the Customer in relation to all Donations.
  7. Enthuse may provide a Donor with the option of paying an amount (“Donor Fee Cover”) in addition to the Donation which is equal to and covers the Transaction Fee amount excluding any foreign card surcharge.  Enthuse reserves the right to withdraw the option for a Donor to pay a Donor Fee Cover.
  8. Enthuse will use commercially reasonable efforts to notify the Customer by email of any changes to the Transaction Fee or the introduction of new fees.  Changes to the Transaction Fee will be published on Enthuse’s website in advance of the effective date of the change and will become effective as of the date indicated as the “effective date” in such posting.

6. BANK DETAILS

  1. The bank account information provided by the Charity to Enthuse will be used for executing all transfers that Enthuse makes to the Charity, including those collected from third party websites, unless the Charity informs Enthuse otherwise or a transfer is rejected by the recipient bank.  The Charity is responsible for ensuring that Enthuse is kept informed of the correct and up-to-date details.  Any changes to the details must be provided by an authorised representative of the Charity in accordance with all relevant KYC and within a sufficient period of time before a transfer is due to be made.
  2. If the Charity, or any employee, director, agent or representative of the Charity, provides incorrect, out-of-date, incomplete or fraudulent information, Enthuse will not be responsible if the payment is not made, is delayed or it is made incorrectly to a third party. 
  3. Transfers of Donations to the nominated bank account or payment processing account (e.g., PayPal) will be made by Enthuse through the Bankers Automated Clearing Services. As a consequence, transfers from Enthuse should reach the Charity’s recipient bank between three (3) to five (5) business days following the date of the transfer as per clause  the above clause of this Schedule 1

7. REFUNDS

  1. If after a Donation has been transferred by Enthuse to the Charity, it is rejected or reversed (for any or no reason), in whole or in part:
    1. the Charity will pay an amount equal to the rejected Donation amount and any reasonable directly related out-of-pocket expenses and reasonable administrative costs to Enthuse and authorises Enthuse to deduct such amount from the Charity account; and 
    2. Enthuse may in its sole discretion refund any Tip in relation to the Donation to the Donor.

SCHEDULE 2 – EVENTS

1. DEFINITIONS

  1. The following definitions are used in this Schedule 2:
    Event: means any event run by the Customer using the Event Services. 
    Event Fee:  the sum of the following:
    1. the “Platform Fee” per registration as set out in Our Pricing. Where no charge is made for a ticket for an Event, there will be no Platform Fee. Enthuse reserves the right to charge the Customer for help and support provided for free Events as set out in the Quotation Form and Invoice;
    2. the “Payment Provider Fee”, a percentage of the amount received by Enthuse in relation to the total purchase, plus a fixed fee for credit and debit cards (e.g., Visa, Mastercard & Amex cards, Direct Debits & Digital Wallet payments, including Apple/Google Pay); and
    3. the “Virtual Journey Mapping Fee” (if applicable) as set out in Our Pricing.

or as otherwise agreed by the parties on the Quotation Form and Invoice.

Event Services:  Enthuse’s events registration solution as described at https://enthuse.com/solutions/event-registration/

Net Revenue:  Amount transferred to the Customer being the sum of ticket, merchandise, Donation and service fee revenue generated by the Customer net of Event Fees. 

Reseller:  an agent who introduces the Customer to Enthuse in relation to Event Services.

Ticket Price: the price paid for a ticket to an Event, including all applicable taxes, charges, surcharges and fees paid for all optional and non-optional services included in the ticket.

Virtual Journey Ticket Price: Price set by the customer for a virtual event.

2. PROCESSING TICKETS

  1. Ticket payments may be processed and transferred to a Customer by way of Enthuse’s online payment systems:
    1. Stripe Custom Connect accounts (www.stripe.com/gb/legal/connect-account): to a Stripe Custom Connect account set up by Enthuse for the Customer (provided that the Customer completes all relevant Stripe KYC).
  2. Ticket payments may be processed by platforms that have been discontinued for new customers, including:
    1. Stripe Standard Connect (www.stripe.com), the Customer should have an account with Stripe and this account must be connected to its Enthuse account;
  3. The Customer authorises Enthuse to create an account for the Customer if required by a payment services provider, including accepting suppliers’ or partners’ standard terms and conditions and submitting the Customer’s details to the payment services provider.  Enthuse shall not be liable to the Customer for any damage or loss the Customer may incur as a result of creation and management of authorised accounts, save to the extent directly caused by the negligence of Enthuse. 
  4. All transactions will be conducted in the base currency for the account i.e. Pounds Sterling, Euros or US Dollars.
  5. Enthuse and/or its payment processing provider may refuse to accept and process a ticket payment if it reasonably believes that:
    1. the payment relates to fraudulent activities of any kind or is otherwise illegal;
    2. the payment has not been properly authorised; and/or
    3. information provided in relation to a payment is not complete and accurate.

3. PAYMENTS

  1. The amount transferred to the Customer will be the Net Revenue. The Customer authorises Enthuse to deduct the Event Fee from each sum received from an Event Participant, together with any other amount which is owed to Enthuse by the Customer which is not paid on the due date.
  2. Enthuse may provide the Event Participant with the option of paying an amount (“Registrant Fee Cover” in addition to the Event Fee which is equal to and covers the Event Fee amount excluding any foreign card surcharge. Enthuse reserves the right to withdraw the option for an Event Participant to pay Registrant Fee Cover.
  3. Where the Virtual Journey Ticket Price is less than the Virtual Journey Mapping Fee, the Customer will pay an amount equal to the shortfall to Enthuse following issue of an invoice after the closure of the event. 
  4. Net Revenue may be processed and transferred to a Customer:
    1. for acceptance of any payments made via Stripe Custom Connect accounts (www.stripe.com/gb/legal/connect-account), Enthuse will set up an account with Stripe Custom Connect for the Customer provided that the Customer completes all relevant Stripe KYC.
  5. Net Revenue may be processed by platforms that have been discontinued for new customers;
    1. for acceptance of any payments made via Stripe Standard Connect (www.stripe.com), the Customer will need to have an account with Stripe and this account must be connected to its Enthuse account; 
    2. Use of the Stripe system ensures that all revenue generated less Enthuse’s Event Fees will be paid directly to the Customer’s nominated bank account. Revenue can be paid on a daily, weekly or monthly basis according to the Customer’s preference.  All transactions will be conducted in the base currency for the account. A currency conversion will only occur if a Customer accepts payment for an Event in a currency in respect of which they do not have an associated bank account.
    3. Stripe payments are tracked by Enthuse and reconciled to show a breakdown of funds per Event. Enthuse will send detailed regular statements setting out this information along with a breakdown of all charges as set out above.
  6. For Customers using their own merchant facility (legacy feature), the Customer will be sent a statement by Enthuse on a monthly basis, providing details of all registrations completed during that month, together with an Invoice in respect of Enthuse’s fee.

4. EVENT CANCELLATION

If an Event is cancelled for any reason, the Customer is responsible for refunding the Ticket Price to each Donor.  Under no circumstances will Enthuse be obliged to provide refunds.

5. CHARGEBACK BY EVENT PARTICIPANT

If an Event Participant raises a Chargeback:

  1. Enthuse will cancel the registration and refund all sums the subject of the Chargeback; and 
  2. notify the Event Participant and the Customer of the cancellation and refund; and 
  3. the Customer shall indemnify Enthuse in respect of any charges incurred by Enthuse in relation to the cancellation and refund, such charges including, but not limited to, payment provider fees.

6. RESELLERS

Where a Customer is introduced to Enthuse by a Reseller, that Reseller will be linked to the Customer’s account with Enthuse and will have access to the account in order to provide support and assist in the initial account set-up.  By using the Event Services and/or entering into this Agreement, the Customer agrees to such access and is responsible for notifying Enthuse in writing if it no longer wishes the Reseller to be linked with and have access to the Customer’s Enthuse account.

7. CONSEQUENCES OF TERMINATION

The following shall apply post-termination

Enthuse will immediately remove the Customer’s Event(s) from its platform.

8. OVERSEAS EVENTS

Where a Customer an Event is to take place outside the United Kingdom and the Republic of Ireland, the Customer agrees that it is responsible for any resulting additional taxes in relation to the sale of Event registration tickets, merchandise and any related Donations and shall indemnify and keep indemnified Enthuse in relation to such taxes.