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Terms & Conditions for Charities

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The Chary on Top platform (the “Platform”), the Chary on Top website (the “Site”) and the Chary on Top app (the “App”) (collectively, the “CoT Properties”) are operated by Chary on Top, a division of Smart Potato Limited (“we”/”us”/”our”), whose registered office is at 33 St. Lukes Road, London, England, W11 1DD (registered number: 09920612).

The CoT Properties enable users to donate to charitable causes, volunteer or apply for roles within charities and purchase event tickets and allows for charities to access data about users’ interactions with the CoT Properties via the Chary on Top dashboard (the “Dashboard”) (collectively referred to herein as the “Services”).

These Terms and Conditions (“Ts&Cs”) represent the rules by which any charity or similar organisation (each a “Charity”) which applies to be a member of any CoT Properties shall be governed. Each Charity which chooses to be a member of the Platform agrees to be bound by these Ts&Cs for the duration of its use of or access to the CoT Properties.

These Terms may be updated by us from time to time and each Charity’s use of the CoT Properties will be governed by the latest published version of these Terms. Although we will attempt to notify Charities if any changes are made to these Ts&Cs, it is the Charity’s responsibility to check the latest published version whenever using or accessing the CoT Properties.

1. Term of Membership

1.1 These Ts&Cs, shall apply from the date (“Commencement Date”) on which the Charity is notified that it has been successfully registered on any of the CoT Properties (which shall be at our sole discretion).

1.2. From the Commencement Date, we shall provide the Services with respect to the Charity and the Charity shall comply with these Ts&Cs until its membership is validly terminated.

1.3 The Charity’s membership is for a minimum period of one (1) month from the Commencement Date and thereafter from month to month until terminated by written notice by either party to the other, in accordance with Section 10.1 below. Please see Section 10 of these Ts&Cs for further termination provisions.  

2. Our Obligations

2.1 We will provide the Services so that donors can make online donations by credit or debit card, or by any other payment method made available by us through the relevant CoT Properties. For all Charities, the use of the Services via the CoT Properties is on an "as is" and "as available" basis.

2.2 We will provide the relevant measures to ensure that all donations or monies validly received by us (after deduction of applicable bank processing charges and sales taxes) are paid by bank transfer, in Pound Sterling, to the valid bank account of the relevant Charity last provided to us. [will payments be made to charities automatically?].

2.3 We will engage third party service providers of a reputable standard to ensure that donors' credit cards and debit cards are debited and the Charity’s account is credited in a secure manner and in accordance with good industry practice.

2.4 We will offer all donors who are UK taxpayers the option of making donations in a manner that makes them eligible for Gift Aid reclaims. On behalf of the Charity, and subject to the Charity being recognised by HMRC as a charity or community amateur sports club (CASC) and fulfilling all applicable HMRC or other requirements for Gift Aid eligibility, we will make Gift Aid reclaims monthly from HMRC in respect of eligible donations (i.e. donations where the donor has satisfied HMRC’s requirements and made a Gift Aid declaration). We will set up arrangements to ensure that all Gift Aid received from HMRC is paid in accordance with section 2.3 above (subject to having received the necessary information from HMRC to allocate that Gift Aid). Any Gift Aid received shall be paid out to each Charity once per month. Where Gift Aid is claimed in respect of a donation, processing charges and our transaction fees will be deducted from the Gift Aid reclaimed amount in priority to a deduction from the donation itself (or any subsequent donation). Where the Charity has not appointed the designated reclamation tax officers as officers of the Charity for the purpose of reclaiming Gift Aid due to the Charity and fails to sign and return to us a completed Gift Aid reclaim form (currently, a ChV1 form) within twenty-one (21) days of receipt, we are hereby authorised to deduct the transaction fees together with payment processing charges from the donation (or any subsequent donation).

2.5 We will send prompt email acknowledgments to donors in respect of each donation made to the Charity via the CoT Properties.

2.6 We will capture personal information including but not limited to the donor's name, title, address and email address ("Personal Information") at all times in accordance with local privacy laws, regulatory requirements and guidance as updated and amended from time to time and we will be the Data Controller in respect of all Personal Information collected via the CoT Properties. Charities should refer to our Terms of Service, Privacy Policy and Cookies Policy for more details of how we operate, process Personal Information and use cookies. For the avoidance of doubt, this Section 2.6 does not imply that we will share such information with the Charity.

2.7 Subject to the Charity paying the Fees in accordance with Section 6 below, we will provide all Charities with access to a secure, password and PINprotected account on the Dashboard where the Charity can view and download details of donations made to the Charity.

2.8 We will, via the Dashboard, provide the Charity with the ability to download reports outlining: the number of donations received, the value of the donations received, and the Transaction Fees paid in addition to the total donations in accordance with Section 6.

2.9 We will comply at all times with all applicable laws and applicable authority, licence, permit or registration requirements. 

2.10 We, as the operator of the CoT Properties, act as an intermediary between the Charity and the individual users of the CoT Properties. We do not check or exercise any editorial control over the content of the information published on the CoT Properties, save as required by applicable local laws. In the event that we are made aware of or have knowledge of any unlawful activity or information on the CoT Properties, we shall promptly act to remove or disable access to the information. We shall not be liable to the Charity as a result of our role as intermediary and we are not required to notify the Charity of any such removal or disablement of access to information. 

3. Charity’s Obligations - General

3.1 The Charity warrants and represents that all content (including text and images) supplied by it to us for display on the CoT Properties or which it posts itself on any of the CoT Properties (including, in each case, links to any third party sites or content) does not violate any law or regulation; is not defamatory, misleading or obscene; and does not breach any intellectual property rights of a third party or breach any right of or duty owed to a third party.

3.2 The Charity will provide us with written confirmation of any donations (including any Gift Aid reclaimed on the same) that it permits us to reimburse to the donor. We will not permit refunds without prior written consent from the Charity, unless required by applicable local laws. [How will you handle refunds?]

3.3 Subject to local applicable laws, the Charity will permit us to deduct such refunds, and any chargebacks arising, from subsequent donations payable to the Charity. Should no donations arise within one (1) week of the refund or chargeback we reserve the right to invoice the Charity for the refunds and chargebacks, and the Charity agrees to settle that invoice within one (1) month of the invoice date.

3.4 The Charity will maintain the necessary authority, permit, licence, consent, approval and registration for it to fundraise in accordance with applicable local laws and if we need any such authority, permit, licence, consent, approval or registration to enable us to collect donations on behalf of the Charity then the Charity will, at its own cost, provide all such assistance as we may reasonably require to assist us with the same.

3.5 The Charity will inform us immediately if, for any reason, it:

3.5.1 ceases to carry on operating for charitable purposes;

3.5.2 is found to be engaged in any corrupt or immoral practices;

3.5.3 is subject to any investigation or inquiry which could result in the necessary authority, permit, licence, consent, approval and/or registration for it to operate as a charity in accordance with applicable local laws being suspended, revoked or withdrawn; or

3.5.4 ceases to have the necessary authority, permit, licence, consent, approval and/or registration for it to operate as a charity in accordance with applicable local laws.

3.6 The Charity will promptly provide any information reasonably requested by us to provide the Services effectively.

3.7 The Charity will ensure that, in each case where a donor is advised that his/her donation will be used for a specific purpose, appeal or outcome the donation is used only for that specific purpose, appeal or outcome.

3.8 The Charity will comply with all applicable laws and regulations in its use of the CoT Properties.

3.9 The Charity will maintain the security and confidentiality of any passwords and PINs provided by us for the purpose of accessing the Dashboard and shall not share these passwords or PINs with any third party. We shall not be liable for and we shall accept no responsibility for any inappropriate use of the Dashboard.

3.10 The Charity represents, warrants and undertakes that:

3.10.1 these Ts&Cs have been accepted and agreed to by the required number of its duly authorised representatives; and

3.10.2 any documents, if applicable, provided to us as part of the Charity’s application for registration on the CoT Properties have been or shall be executed by the required number of its duly authorised representatives.

3.11 The Charity shall not provide the donor with any gift, prize or any other form of incentive in connection with the making of any donation by the donor.

3.12 Should HMRC or any other relevant body make enquiries with us regarding Gift Aid, including the Charity’s eligibility for Gift Aid reclaims, the Charity shall provide all reasonable assistance requested by us in order to resolve HMRC’s enquiries or, if requested by us, liaise directly with HMRC or the other relevant body.

3.13 The Charity acknowledges and agrees that we are required to maintain records of Gift Aid and authorises us to maintain such records for as long as we consider necessary.

4. Charity’s Obligations – Data Protection and Direct Marketing

4.1 To the extent that the Charity’s use of the CoT Properties results in access to any Personal Information, the Charity will:

4.1.1 at all times assist with our responsibilities, as a data controller responsible for determining how the Personal Information is processed in accordance with applicable data protection legislation in order to provide the Services;

4.1.2 not do, or cause or permit to be done, anything which may result in a breach by us of any applicable data protection legislation and comply with our reasonable instructions with respect to the processing by the Charity of such Personal Information;

4.1.3 comply with all applicable data protection legislation with respect to the Charity's collection, use, disclosure or processing of the Personal Information;

4.1.4 abide by the lawful instructions of all data subjects in respect of the Personal Information and not do anything to compromise the security of such information;

4.1.5 not sell, trade or rent Personal Information to third parties;

4.1.6 hold the Personal Information securely and not disclose it to anyone other than us, as agreed to by the data subject and/or as permitted by applicable data protection legislation;

4.1.7 implement adequate security, technical and organizational measures against all unauthorized, unlawful or accidental access, processing, use, erasure, loss or destruction of, or damage to, Personal Information in accordance with applicable data protection legislation, and abide by our reasonable requirements to ensure the security of the Personal Information as notified to the Charity from time to time;

4.1.8 use Personal Information appropriately and only for the specific purposes as notified to the Charity from time to time, including by way of the applicable privacy policy available on the Site; and

4.1.9 not retain any Personal Information for longer than is necessary.

4.2 In addition to its obligations under Section 4.1 above, if the Charity’s use of the Dashboard results in access to any Personal Information and the donor has consented to receive marketing communications directly from the Charity, the Charity undertakes that it will only send marketing communications to the donor in accordance with the donor’s selected preferences, including without limitation, any requests to unsubscribe from receiving such marketing communications from the Charity.

4.3 The Charity shall be liable for and indemnify us, its successors and assigns against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by us which arise (directly or indirectly) out of or in connection with any breach of Sections 4.1 or 4.2 by the Charity.

5. Intellectual Property Rights and Licence

5.1 All intellectual property rights in any material (including text, photographs and other images, trademarks and logos) contained in the CoT Properties is either owned by us or has been licensed to us by the rights owner(s) so that we can use this material as part of providing the Services. Nothing in these Terms and Conditions shall operate as an assignment of any such intellectual property rights.

5.2 The Charity hereby grants us, our affiliates and our partners a nonexclusive, worldwide and royalty-free licence to use its name and logo in connection with the performance of the Services and promotion of the CoT Properties. Such licence shall terminate automatically on valid termination of the Charity's membership in accordance with Section 10 below.

5.3 The Charity shall be liable for and shall indemnify, and keep indemnified, us, our successors and assigns against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by us which arise (directly or indirectly) out of or in connection with any third party demand, claim or action alleging infringement of the third party’s intellectual property rights.

6. Fees

6.1 In consideration of becoming and remaining a member of the CoT Properties, the Charity shall pay to us the subscription and transaction fees set out in this Section 6 (together, the “Fees”). [What is your current fee structure?]

6.2 No monthly subscription fee is currently payable by Charities that become members of Chary on Top, however a subscription fee will be introduced at a later date by written notice to each Charity. If applicable, a subscription fee shall be payable monthly via automated bank transfer to our bank account, the details of which will be provided from time to time, and the Charity agrees to provide the details required in order for the direct debit to be set up and maintained. We retain the right to suspend the Charity’s presence on the CoT Properties and use of the Services at any time if the Charity does not pay the applicable subscription fee or any other amount due to us under these Ts&Cs for any other reason.

6.3 A transaction fee of [5]% of the gross amount of every donation (including any Gift Aid reclaimed, if applicable) and any applicable payment processing charges incurred in processing a donation will be charged by us to the donor in addition to the full amount of the donor’s donation.

7. LIABILITY

7.1 NOTHING IN THESE TERMS AND CONDITIONS SHALL ACT TO, EXCLUDE OR LIMIT OUR OR THE CHARITY’S LIABILITY: (I) FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE; (II) FRAUD; (III) UNDER ANY INDEMNITY CONTAINED IN THIS AGREEMENT; OR (IV) ANY OTHER LIABILITY WHICH MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED.

7.2 THE SITE, THE COT PROPERTIES AND ALL SERVICES, THIRD PARTY APPLICATIONS, THIRD PARTY CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SITE AND THE COT PROPERTIES ARE PROVIDED "AS IS” WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE, OUR AFFILIATES, SUCCESSORS AND ASSIGNS DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE SITE, THE COT PROPERTIES AND ALL  SERVICES, THIRD PARTY APPLICATIONS, THIRD PARTY CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SITE AND THE COT PROPERTIES, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SITE OR THE COT PROPERTIES (OR ANY PART THEREOF), ANY THIRD PARTY APPLICATIONS OR ANY THIRD PARTY CONTENT IS OR WILL BE ACCURATE, COMPLETE OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE WILL BE COMPATIBLE WITH THE SITE.

7.3 Subject to Section 7.1, in no event shall we be liable (whether for breach of contract, negligence or for any other reason) for any loss or damage which the Charity may claim to have suffered by reason of its (or any donor or other user) use of (or inability to access and use) the Services and the CoT Properties or any part of them, including without limitation, loss of profits, exemplary or special damages, loss of sales, loss of donations, loss of gift aid, loss of revenue, loss of goodwill, loss of any software or data, loss of bargain, loss of opportunity, loss of use of computer equipment, software or data, loss of or waste of management or other staff time, or for any indirect, incidental consequential or special loss, however arising.

7.4 We reserve the right to amend or update these Ts&Cs and/or the format and content of the CoT Properties from time to time.

7.5 Subject to the other terms of this section 7, our total aggregate liability arising under or in connection with the Charity (or any donor or other user) accessing and using the CoT Properties and inability to access or use the CoT Properties shall be limited to the total fees paid under these Ts&Cs by the Charity during the preceding 12 month period ending on the date the circumstances giving rise to the liability arose. 

8. Insurance

Each party must at all times maintain such adequate insurances as are required by local applicable laws or as are customary for the parties to an agreement of the nature of these Terms and Conditions to maintain in the local market place. 

9. Confidential Information

During the term of the Charity's membership and for a period of two (2) years thereafter, the parties shall treat as strictly confidential all information about the other which has been acquired as a result of the use of the Dashboard or CoT Properties and which is not in the public domain. No party shall use or disclose to any third party such information belonging to the other party without that party's prior written consent, except where required to do so by applicable local law or regulatory or governmental body. This Section 9 shall survive termination of these Terms and Conditions.

10. Termination

10.1 In accordance with Section 1 above, a notice of cancellation should be received no later than the 5th day of the final month that a Charity wishes to remain as a member Charity (or the preceding Friday where the 5th day falls on a weekend or national holiday) and all notices from a Charity must include the Charity’s full name and registered charity number. Such notice shall be deemed to have been received within twenty-four (24) hours of receipt by email to [INSERT EMAIL ADDRESS]. Cancellation notices received after the 5th day of a given month (or the preceding Friday, where relevant) will usually be processed the same month, but this cannot be guaranteed. Please note that canceling a direct debit that has been set up to pay the subscription fee described in Section 6 is not sufficient to cancel a Charity membership; so that we can process a cancellation request accurately and on time, email notice must also be provided to us in accordance with this Section 10.1.

10.2 In addition to the rights of each party under Sections 1 and 10.1 above, either party shall have the right to terminate the use of the CoT Properties, the Dashboard and the Services immediately by written notice to the other party in the event that the other party shall go into compulsory liquidation, assign its assets for the benefit of creditors, make any composition with its creditors, has a receiver or liquidator or trustee appointed for its business or property, or take advantage of any insolvency act or any similar event under the laws of any jurisdiction.

10.3 In addition to its rights under Sections 1, 10.1 and 10.2 above, we will have the right to terminate or suspend the Charity’s membership and access to and use of the CoT Properties and the Dashboard (including, in the case of suspension, suspending any payments due to the Charity) immediately by written notice in the event that the Charity materially breaches or gives reasonable cause for us to believe the Charity has materially breached any of these Ts&Cs.

10.4 To the maximum extent permitted by applicable law we, in any event, reserves the right to withdraw the Services (or any part of them) from public access at any time, at our absolute discretion.

11. Suspension of Services

We may, in our absolute discretion, without liability to the Charity, suspend the operation of any of the Services in full or in part at any time, for example, but without limitation for repair or maintenance work or in order to update or upgrade the contents or functionality of the CoT Properties or the Dashboard from time to time. 

12. Notices and Entire Agreement

12.1 Notices referred to above should be made in writing and, in the case of notices to be provided to us, sent by email to [INSERT EMAIL ADDRESS].

12.2 These Ts&Cs represent the entire agreement between us and the Charity and supersede and replace any other representations made orally or in writing. 

13. Third-Party Rights

A person who is not a party to these Ts&Cs has no right to enforce any term of these Ts&Cs. 

14. Grievances from employees, complaints handling process and dispute resolution

Grievances from employees

14.1 Any grievances by employees of either party will be dealt with by that party.

Complaint handling procedure

14.2 We will promptly respond to any complaints from donors concerning the CoT Properties or the Services and we will maintain records relating to complaints received.

Dispute resolution

14.3 If a dispute arises under these Ts&Cs or concerning its subject matter, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute. The nominated senior representatives of both parties must meet within twenty-one (21) days of the notice and try to resolve the dispute in good faith. If such a meeting does not take place or if five business days after the meeting the dispute remains unresolved, either party may pursue its rights at law.

14.4 Despite the existence of a dispute, each party must continue to perform its obligations under these Ts&Cs.

14.5 Sections 14.3 and 14.4 do not restrict or limit the right of either party to obtain interim, protective or injunctive relief, or to immediately terminate these Ts&Cs where these Ts&Cs provide such a right.

15. Governing Law

These Terms and Conditions and any contractual or non-contractual claim arising out of or in connection with a Charity’s use of the Services, the CoT Properties and the Dashboard are governed by the laws, and subject to the jurisdiction of the courts, of England. 

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