Customer Terms
These Terms and Conditions, together with its Schedules (the “Terms”) are made and entered into on the Effective Date by and between
(1) 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 0688619 (“Enthuse”); and
(2) the entity signing the Order Form which references these Terms (“Customer”). These Terms along with the Order Form constitute the agreement between the parties (collectively referred to as the “Agreement”).
1. Background
1.1 Enthuse provides software products and related services to charities, companies and other eligible organisations, as decided by Enthuse.
1.2 The Customer wishes to use Enthuse’s software products and services.
1.3 Enthuse has agreed to provide and the Company has agreed to take and pay for Enthuse’s software products and services subject to the terms of this Agreement.
2. Definitions
2.1 The following are definitions of our terminology used in these Terms:
Charity: a charity that:
- 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
- has been approved by Enthuse to feature on a Site.
Domain Name: the URL owned by the Charity, or purchased by Enthuse on behalf of the Charity, for the purposes of the Agreement.
Effective date: the date the Services commence as specified in the Invoice.
Free Trial Period: promotional offer available from time to time where no subscription fee is charged for the duration of the trial period.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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: the initial invoice provided by Enthuse detailing the specific Services to be received by the Charity and the total Subscription Fee due to Enthuse.
Materials: includes any content provided by the Charity to Enthuse from time to time for the purposes of 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 and subsequently paid to the Charity net of Transaction Fees and any Tip.
Server: a computer server administered by Enthuse.
Services: the services to be provided pursuant to the Agreement and as further described in the Schedules, as specified in the relevant Invoice.
Software: the online software applications provided by Enthuse as part of the Services.
Subscription Fee: the fee charged in respect of the Services as set out in the Invoice.
2.2 References to “writing” or “written” include email.
2.3 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.
2.4 References to clauses and schedules are to the clauses and schedules of this agreement; references to sections are to sections of the relevant schedule to this agreement.
2.5 Where there is any conflict or inconsistency between the provisions of the Agreement, such conflict or inconsistency shall be resolved according to the following order of priority:
- the Invoice;
- the Order Form;
- Schedules;
- the terms of this agreement.
3. Commencement and term
3.1 The term of this Agreement (the “Term“) shall commence on the Effective Date and shall continue for 12 months in the case of annual price packages or monthly in the case of monthly price packages.
4. Obligations of Enthuse
4.1 In consideration of payment of the Subscription Fee, Enthuse shall provide the Services set out in the Invoice in accordance with the terms of this Agreement.
4.2 In supplying the Services, Enthuse shall:
- perform the Services with care, skill and diligence in accordance with industry practice; and
- co-operate with the Customer in matters relating to the Services.
4.3 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.
5. The Customer’s responsibilities
5.1 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.
5.2 Customer agrees that by signing up to an account with Enthuse, additional administrators and users may be added to the Enthuse account by Customer or Enthuse, at Customer’s request, making it accessible by any of Customer’s staff and that Customer is responsible for ensuring that appropriate settings and internal Customer procedures are in place for appropriate users to have access to the Customer’s Enthuse account.
6. Third party products
6.1 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 or newsletters. The Third Party Products shall be supplied in accordance with the relevant third party’s standard terms. The licence fee for such Third Party Products is included in the Subscription Fee payable under clause 7.1.
6.2 Enthuse cannot be held responsible for subsequent changes or issues with these Third Party Products that may result in issues with the Software and/or Services and may require maintenance to resolve any problems that may arise.
6.3 The Customer agrees that Enthuse may, at any time and without any notice to the Customer, replace a Third Party Product with another with similar functionality at its sole discretion.
6.4 Notwithstanding anything to the contrary in these Terms, Enthuse reserves the right to introduce new services and update or withdraw any of the Services, at its sole discretion, and will not be liable to the Customer for exercising this discretion.
7. Subscription fee
7.1 Enthuse charges the Subscription Fee to the Customer for access to the Services. The Customer agrees to pay this fee in advance either monthly or annually on a designated day (the “Due Date”) as agreed on an ongoing basis, with automatic renewal. In accordance with clause 12 (Termination), Enthuse or the Customer may give notice to terminate the Agreement at any time before a renewal, but in the case of any Subscription Fee due or paid in advance, there shall be no refund.
7.2 Where a Free Trial Period is offered, the subscription fee will be charged at the end of the Free Trial Period unless cancelled prior to the end of the Free Trial Period as defined in the promotional offer.
7.3 Where a Customer receives Enthuse’s services through a partner platform or third party supplier and no existing contract between Enthuse and the Customer is in force, clause 7.1 will only stand where an additional agreement on fees is made between Enthuse and the Customer.
7.4 All charges are exclusive of VAT.
8. Warranties
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
8.2 Enthuse shall perform the Services in accordance with good industry practice.
8.3 Both the Customer and Enthuse Ltd agree to fully comply, and will at all times continue to, fully comply with all applicable laws, statutes and regulations, including, without limitation, all privacy laws and anti-spam legislation.
8.4 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.
9. Limitation of remedies and liability
9.1 Nothing in this Agreement shall operate to exclude or limit either Party’s liability for:
- death or personal injury caused by its negligence;
- 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;
- fraud; or
- any other liability which cannot be excluded or limited under applicable law.
9.2 Enthuse shall not be liable to the Customer for:
- any damage to software;
- damage to or loss of data;
- loss of profit;
- anticipated profits;
- revenues;
- anticipated savings;
- goodwill or business opportunity;
- any indirect or consequential loss or damage; and
- damage or loss related to unavailability of the Services and/or Software.
9.3 The Software and the Services are 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 Services or the Software are secure, or error free or will operate without interruption or will be provided in a timely or proper manner or at all.
9.4 Enthuse makes no guarantee that the Services, and or Software, or any content, including any Add-on Packages (as defined in the Schedules) or Third Party Products, will be:
- available or uninterrupted;
- free from errors or omissions; and/ or
- secure or free from bugs or viruses.
9.5 Subject to clause 9.1, Enthuse’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £1,000 (one thousand Great British Pounds).
10. Intellectual property rights
10.1 All Intellectual Property Rights in the Software and any output of the Services, but excluding the Materials and the Domain Name, arising in connection with this Agreement 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 the Services for the Term.
10.2 The Customer shall indemnify Enthuse against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
10.3 The indemnity in clause 10.2 is subject to the conditions that:
- the indemnified party promptly notifies the indemnifier in writing of the claim;
- the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
- the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
- the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
10.4 The indemnity in clause 10.2 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
11. Data Protection
11.1 The Customer acknowledges that for the use of the Donation and Fundraising Products;
- 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.
- Enthuse will be the controller for the personal data collected in relation to card payments, Direct Debits and technical details such as metadata and other payment-related data. This data will not be shared with Customers.
- 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.
11.2 The Customer acknowledges that for the Events Product;
- Enthuse will be the controller for the personal data collected in relation to card payments and technical details such as metadata and other payment-related data. This data will not be shared with Customers.
- Enthuse will be the processor and the Customer will be the controller for all other personal data collected and processed using the Events Product.
11.3 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.
11.4 Where Enthuse is acting as a processor, the terms of clauses 11.12, 11.13, 11.14 and 11.5 shall apply.
11.5 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.
11.6 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).
11.7 Each party will comply with all applicable requirements of the “Data Protection Legislation”; this means:
- 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.
- 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.
11.8 Clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
11.9 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 will 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 11.9.
11.10 For the purposes of clause 11 “controller”, “data subject”, “personal data”, “processor”, and “processing” shall have the meanings ascribed to them in Data Protection Legislation.
11.11 For the purpose of clause 11, “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.
11.12 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.
11.13 The personal data is processed by Enthuse for the following purposes:
- to manage user accounts, and to respond to end user queries or comments;
- make payments to the Customer for donations, purchases or other transactions;
- store custom data and other fields within a cloud based dashboard for the Customer to search, manipulate and export;
- other purposes that the Customer and Enthuse may agree from time to time in writing.
11.14 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:
- 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);
- ensure that all personnel who have access to and/or process Protected Data are obliged to keep the Protected Data confidential;
- 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;
- not transfer Protected Data outside the UK or European Economic Area, as applicable, unless the following conditions are fulfilled:
- the data subject has enforceable rights and effective legal remedies; and
- 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
- 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;
- 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;
- 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;
- 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;
- 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
- notify the Customer in advance, where possible, of any legal requirements that it is subject to which may require the disclosure of Protected Data.
- On termination of this Agreement, delete or return the Protected Data to the Customer.
11.15 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.
11.16 In the event that Enthuse appoints a Sub-Processor, it shall:
- 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
- In the event that a Sub-Processor fails to meet its obligations under any Sub-Processing Agreement, Enthuse shall remain fully liable to the Customer for failing to meet its obligations under this Agreement.
11.17 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 11 of this Agreement and clause 5.3 of Schedule 1.
11.18 The clauses relating to data protection in this Agreement may be varied from time to time to comply with changes in applicable law.
12. Termination
12.1 Termination by Enthuse. 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.
12.2 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. Upon termination of the Agreement by the Customer, all outstanding Subscription Fees, or other amounts, will become due immediately and must be paid to Enthuse without undue delay. Cancellation of the automatic payment method used by the Customer to pay the Subscription Fee will not amount to termination under the Agreement.
12.3 On termination of this Agreement by Enthuse under clause 12.1, all licences granted by Enthuse under this Agreement shall terminate immediately.
12.4 On expiry or termination of this Agreement, Enthuse shall promptly return, or destroy, all Materials. Upon written request of the Customer, which must be served within 14 days of termination, Enthuse will provide a copy of the personal data provided by Visitors (as defined in the Schedules), only to the extent Visitors have provided their consent to such a transfer. No other data, including but not limited to, database logs or Meta data, will be provided to the Customer.
12.5 On expiry or termination of this Agreement, all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
12.6 On valid expiry or termination of this Agreement for the reasons set out in 12.1 or 12.2, Charities may continue to be featured on any Corporate or Community Platforms to receive donations and fundraisers on the Corporate or Community Platforms at no additional cost to Customer.
12.7 On termination of this Agreement by Customer under clause 12.2, Customer will not be automatically removed from Enthuse’s Charity database of featured Charities at no additional cost to Customer.
13. Variation
13.1 These Terms cannot be modified, varied, amended or supplemented in any way by the Customer. Enthuse reserves the right to modify, vary, amend or supplement these Terms at any time and from time to time. Enthuse will post the current version of these Terms on its website and each such change will be effective upon posting on the website or upon the date designated by Enthuse as the “effective date” (if any). Your continued use of the Services following any such change constitutes your agreement to be bound by and its acceptance of these Terms as so modified.
13.2 Enthuse will issue a new subscription invoice where additional services are added or where a price increase applies.
13.3 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. We will inform you at least 14 days before the price change becomes effective. You will have the opportunity to cancel the Services before the price change takes effect in accordance with section 12.2 above.
14. Force majeure
14.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for one (1) month, the party not affected may terminate this Agreement by giving 14 days’ written notice to the affected party.
15. Confidentiality
15.1 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 15.
15.2 Each party may disclose the other party’s confidential information:
- 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 15; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16. Notices
16.1 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.
16.2 Any notice given to Enthuse under or in connection with these Terms shall be given in writing to:
Online Giving Ltd (Enthuse)
Office 6
155 Minories
London
EC3N 1AD
United Kingdom
or emailed to [email protected]
16.3 Any notice to the Customer under or in connection with these Terms, shall be given in writing (including email or fax) to the main contact that you have provided to us.
16.4 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.
17. Publicity
17.1 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.
17.2 Notwithstanding clause 17.1, the Charity acknowledges that during the Term or following termination or expiry of the Agreement, Enthuse may feature the Charity on any Enthuse webpage including webpages on the Corporate or Community Platforms.
18. Assignment
18.1 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.
19. Entire agreement
19.1 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.
19.2 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.
20. Third party rights
20.1 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.
20.2 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
21. Waiver
21.1 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.
22. Rights and remedies
22.1 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.
23. Severance
23.1 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.
23.2 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.
24. Governing law
24.1 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.
25. Jurisdiction
25.1 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.
SCHEDULE 1 – FUNDRAISING
1. Definitions
1.1 The following are definitions of our terminology used in this Schedule:
Add-On Features: additional product features available to the Charity for additional Subscription Fees.
Donation Site: the website, and fundraising page(s), hosted by Enthuse pursuant to the Agreement, allowing Donors to make online donations to the Charity.
Donors: Visitors who donate to the Charity (“Donations”) using the Donation Site.
Fundraisers: Visitors who create a fundraising page on the Donation Site.
Visitor: a visitor to the Donation Site.
2. Services
2.1 In consideration of payment of the Subscription Fees, Enthuse will provide the Fundraising Site and surrounding services to the Customer which the customer may enable or disable at any time. The Fundraising Site includes:
- access to the Fundraising Site;
- hosting the Fundraising Site on its Server at no additional cost;
- collection of Donations on behalf of the Customer;
- if applicable, events and appeals;
- if applicable, processing and claiming Gift Aid on behalf of the Customer subject to section 12 of this Services Contract; and
- such other services as agreed by the Parties.
2.2 For a period of seven (7) days from the delivery of the Donation Site to the Customer, the Customer may make reasonable requests for alterations to the Fundraising Site in order to repair any bugs/errors (the “Alteration Period”). Following the Alteration Period the Fundraising Site will be deemed delivered to the Customer. For the avoidance of doubt, the Alteration Period will not apply to any future repairs or alterations to the Fundraising Site or other Services.
2.3 Add-on Features may be provided by Enthuse, in accordance with the Agreement, if noted in the Invoice. Current descriptions for certain Add-on Features may be found at www.enthuse.com/solutions/
2.4 For a Donation to be directed to Customer by a Donor, the Donor must have selected the Customer as the recipient on the Fundraising Site.
2.5 The Fundraising Site will remain the property of Enthuse and the Customer may not transfer the Fundraising Site to another service/hosting provider following termination of this Agreement.
2.6 The Donation Site will remain the property of Enthuse and the Customer may not transfer the Donation Site to another service/hosting provider following termination of this Agreement.
2.7 Charities may be featured on any Corporate or Community Platforms. Charities may request full removal from Enthuse’s Charity database of featured Charities at any time during the Agreement by opting out of such inclusion by contacting [email protected].
3. Customer Obligations
3.1 The Customer shall be responsible for the accuracy and completeness of the Materials on the Fundraising Site.
3.2 Before Enthuse will be able to provide the Donation Site, the Customer must provide all the necessary banking information requested by Enthuse as part of the registration process in order to activate electronic fund transfers and pre-authorised debits.
3.3 The Customer is responsible for:
- informing Enthuse in the event it receives Donations that the Customer should reasonably know it is not entitled to receive;
- ensuring that any Donations paid to it through the Donation Site are used by the Customer in accordance with any stated purpose or specific fundraising appeal. As Enthuse does not monitor or control the activities of the Customer, it shall be the sole responsibility of the Customer to ensure that Donations received by it are used for the stated purpose or appeal and Enthuse will not be responsible for the use or non-use of any Donations; and
- ensuring any content uploaded to the Fundraising Site by Fundraisers, Donors or the Customer does not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) and are in compliance with our Acceptable Use Policy (“Inappropriate Content”). Enthuse reserves the right to remove content from the Fundraising Site where it reasonably suspects such content is Inappropriate Content. Either party shall notify the other party promptly if it becomes aware of any allegation that any content on the Fundraising Site may be Inappropriate Content.
4. Collection of Gift Aid
4.1 Enthuse is an approved HMRC Gift Aid agent. If the Customer is a registered Charity and based in the United Kingdom, it must be registered for Gift Aid with HMRC to benefit from the Services detailed in clause 4.1 of this Schedule and must:
- provide Enthuse with a complete HMRC form (e.g. ChV1); and
- provide a valid HMRC registration number allocated to the Customer.
4.2 Enthuse will:
- where appropriate, offer all Donors the option of making Donations in a way that makes them eligible to reclaim Gift Aid (subject to a Donor’s declaration of eligibility). Each Donor is responsible at all times for accurately informing and updating Enthuse as to their respective entitlement to claim Gift Aid and Enthuse is not responsible for use of inaccurate or out of date information provided by a Donor; and
- on behalf of the Customer, apply to HMRC to reclaim Gift Aid in compliance with HMRC recommended practice. Enthuse will not apply to HMRC to register the Customer for the purpose of claiming Gift Aid. If any Gift Aid claim, or sums claimed, on behalf of the Customer are subsequently challenged or not settled by HMRC, the Customer will be responsible for resolving the matter with HMRC and, where applicable, repaying any disputed sum directly to HMRC.
4.3 The Customer shall ensure that the Donation Page is set up correctly to receive Gift Aid from Donors including, but not limited to, using appropriate language to request Gift Aid, only where the Donations are eligible for Gift Aid. The Customer shall be responsible for making any changes required by Enthuse, or HM Revenue and Customers, in order to ensure the Donation Page is compliant with this clause 4.4 and any applicable law, or guidance, regarding the collection of Gift Aid.
5. Processing donations
5.1 The Customer authorises Enthuse to process and hold Donations received from Donors on the Customer’s behalf. Enthuse may refuse to process and hold Donations if it is not reasonably satisfied that:
- the transaction is legal and not related to fraudulent activities of any kind;
- they have been properly authorised; or
- the information it is basing a transfer on is correct.
5.2 Enthuse provides acquiring services and Donations may be processed and transferred to a Customer by Enthuse’s online payment gateways and transferred to you by Enthuse.
5.3 In certain circumstances, in order to receive Donations, Enthuse may create an account for the Customer with Enthuse partners (e.g. GoCardless, Stripe, PayPal), including accepting the partners’ standard terms and conditions and submitting the Customer’s details to the partner on its behalf. The Customer hereby authorises Enthuse to do so and Enthuse shall not be liable to the Customer for any damage or loss it may incur as a result of such creation.
5.4 Enthuse will transfer cleared Donations that it has received on a Customer’s behalf to the Customer either on the twentieth day of the following month or the nearest working day after that, or every working day on a 7-day rolling basis, as agreed with the Customer in writing (as may be amended from time to time).
6. Transaction fees
6.1 The amount transferred to the Customer will be equal to the sums received by Enthuse on the Customer’s behalf, less the charges for processing the payments as set out in clause 6.2 of this Schedule 1 (“Transaction Fee”). The Customer authorises Enthuse to deduct the Transaction Fee together with such other sums as are owed to Enthuse, in accordance clause 9 of this Schedule, from the amount of any Donations that Enthuse is paying out to the Customer.
6.2 The Transaction Fee is made up of three parts, calculated as follows:
- the “Gift Aid Processing Fee”, calculated at 5% of the value of any Gift Aid; and
- the “Payment Provider Fee”, calculated for Visa, Mastercard, Amex, Google Pay, Apple Pay and Direct Debit at just 1.9% + 30p of the net Donation, which does not include Gift Aid. If Donations are processed via Stripe, PayPal or Go Cardless the Payment Provider Fee is set by the applicable payment provider; and
- the “Processing Fee”, calculated at 5% of the net Donation, which does not include Gift Aid.
- the “Paying In Fee”: calculated at 5% amount paid in.
the Transaction Fees may vary by product or be removed entirely in some cases.
6.3 Enthuse may provide a Donor with the option of paying an amount directly to Enthuse (a “Tip”) in addition to the Donation. The use of custom fields or other features of the Software or Services to interfere with the “Tipping” feature on the Software or Services is prohibited. Enthuse reserves the right to move a customer off the Tipping model at any time.
6.4 Enthuse reserves the right from time to time to change the Transaction Fee as well as to introduce new fees and charges. Enthuse will use commercially reasonable efforts to notify the Customer of any changes to its Transaction Fee or the introduction of new fees by email and will post its current Transaction Fee on its website. Changes to the Transaction Fee 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.
7. Bank details
7.1 The bank account information provided by the Customer to Enthuse will be used for executing all future transfers that Enthuse makes to the Customer, unless the Customer informs Enthuse otherwise or a transfer is rejected by the recipient bank. The Customer 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 via the Customer’s online account by an authorised representative of the Customer and within a sufficient period of time before a transfer is due to be made.
7.2 If the Customer, or any employee, director, agent or representative of the Customer, provides incorrect, out-of-date 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 other than the Customer.
7.3 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 (“BACS”). As a consequence transfers from Enthuse should reach the Customer’s recipient bank between three (3) to five (5) business days following the date of the transfer as per clause 5.4 of this Schedule 1.
7.4 By providing bank account information to Enthuse the Customer agrees to Enthuse collecting payments for the Customer via any website, including third party websites that may use Enthuse to collect payments for the Customer.
8. Refunds
8.1 If after a Donation has been transferred by Enthuse to the Customer bank account, such Donation is thereafter rejected or reversed for any or no reason, including payments made in error, credit card chargebacks, refund requests, suspected or actual fraud, in whole or in part, the Customer will be liable to refund such rejected Donation amount in full to Enthuse. The Customer authorises Enthuse to deduct any such amount and any reasonable directly related out-of-pocket expenses and reasonable administrative costs incurred by Enthuse in this context from the Customer Account. If this is not possible, you are liable for reimbursing Enthuse, and such amount shall be treated as a debt.
9. Late Payment
9.1 The Customer agrees that if the Subscription Fee is unpaid for a period of one (1) month after the Due Date, then Enthuse is authorised to debit the outstanding Subscription fees from any donations received by Enthuse on behalf of the Customer.
10. Consequences of Termination
10.1 The following shall apply post-termination:
- 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;
- 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;
- 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;
- Enthuse may at its discretion continue to process the Recurring Payment Schedules on behalf of the Customer and the provisions of this Agreement shall continue to apply to that processing to the extent applicable;
- Enthuse may at its discretion delete Recurring Payment Schedules. The Recurring Payment Schedules cannot be transferred to the Customer or its nominated payment processor;
- Enthuse shall continue to submit Gift Aid data to HMRC relating to Recurring Payment Schedules and other unclaimed Gift Aid relating to other Donations.
SCHEDULE 2 – EVENTS
It is agreed that the following terms and conditions, together with our Customer Contract, set out the entire and only agreement (“the Agreement”) made between you (“the Customer”) and Enthuse Ltd (”Enthuse”) and no variation or modification of this Agreement shall be effective unless it is agreed by both parties in writing.
Any work of any description undertaken by Enthuse in delivering event registration services shall be subject to the following terms and conditions.
1. Supply of Services
Enthuse shall supply such event registration services (“the Services”) as may be agreed from time to time with the Customer in writing.
Enthuse warrants to the Customer that it will perform the Services:
- with reasonable care and skill;
- in accordance with generally recognised commercial practices and standards; and
- in accordance with all applicable legislation from time to time in force.
2. Fees
All transactions will be conducted in the base currency for the account i.e. Pounds Sterling, Euros or US Dollars.
Event fees shall be agreed between the parties in writing prior to the provision of any Services and shall be detailed in the Customer Contract. In every case, event fees shall be subject to a minimum event fee as set out in the Customer Contract.
2.1 Using Enthuse’s Merchant Processes
Payment processing services for Enthuse are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms and conditions, the Customer agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Enthuse enabling payment processing services through Stripe, the Customer agrees to provide Enthuse with accurate and complete information about the Customer and its business, and the Customer authorises Enthuse to share this information and transaction information related to the Customer’s use of the payment processing services provided by Stripe.
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 i.e. Pounds Sterling, Euros or US Dollars. 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.
Stripe payments are tracked by Enthuse and reconciled to show a breakdown of funds per event. Enthuse will send detailed monthly statements setting out this information along with a breakdown of all charges.
2.2 Using Customer’s Merchant Processes
Should a Customer wish to use their own merchant process, they 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.
2.3 Payment should be made within 30 days of receipt of invoice.
In the event of any invoice queries, these queries must be raised within 14 days of the relevant invoice being received. Payment should not be unreasonably withheld by the Customer whilst the query is being resolved.
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 base lending rate of Enthuse’s Bank.
3. Event Cancellation
If an event is cancelled for any reason, all refunds of registration fees to event participants will be the responsibility of the Customer. Under no circumstances will Enthuse be obliged to provide refunds.
4. Cancellation by event participant
Should an event participant raise a Charge Back, their registration will be cancelled and their registration fee refunded, Enthuse shall notify both the event participant and the Customer of the cancellation and refund. The Customer undertakes to indemnify Enthuse in respect of any charges incurred by Enthuse in relation to the cancellation and refund, such charges including but not limited to Stripe fees.
5. Managing Systems
5.1 Enthuse reserves the right to edit information hosted on its platform at its absolute discretion where such information is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party intellectual property rights.
5.2 Enthuse shall promptly:
- update the Enthuse Event Registration Software with any and all content provided from time to time by the Customer;
- comply with any written request by the Customer to remove any content from the Enthuse Event Registration Software.
6. Distributors
Where a Customer is introduced to Enthuse via a Distributor, that Distributor 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 agreeing to these terms and conditions, the Customer agrees to allow the Distributor to have such access. The Customer must notify Enthuse in writing in the event that they no longer wish the Distributor to be linked with and have access to their Enthuse account.
7. Free events
In relation to free events, unless otherwise agreed in writing with the Customer and detailed in the Customer Contract, Enthuse will not charge commission on free registrations and registrations made through the administration area. Enthuse does however reserve the right to charge the Customer for help and support provided for free events, with full details of its set-up fees set out in the Customer Contract.
8. Termination
This Agreement may be terminated at any time and for any reason by either party by giving notice in writing to the other.
On termination of this Agreement:
- the Customer will pay to Enthuse any outstanding invoices issued by Enthuse prior to the effective date of termination;
- the Customer will pay Enthuse for any event registrations completed after the effective date of termination upon presentation of an invoice; and
- Enthuse will immediately remove the Customer’s event (s) from its platform.
- The termination of this Agreement shall be without prejudice to any rights which may have accrued prior to the date of termination to either of the parties under this Agreement.
- Any subscription fees are due until the end of the contract term
9. No Partnership
Enthuse and the Customer hereby declare that they are not partners and this Agreement is not to be construed as creating a partnership between them.