1. DEFINITIONS AND INTERPRETATION

1.1. Definitions

“Agreement” means the approved Proposal together with those Terms and Conditions of Participation.

“CLIENT” means an organisation signing the Proposal and supplying Data.

“Commencement Date” means the date of signature of the Proposal by the CLIENT.

“Data” means all data or information (including Personal Information) provided by the CLIENT to FUNDRAISING INSIGHTS, including where applicable, information about supporters, donors, prospective supporters, or prospective donors, for the purpose of receiving the Services. Data does not include information about programs and activities conducted by the CLIENT or information resulting from the analysis of provided data.

“Sensitive Information” means any CLIENT Data, and any identifiable information about supporters, donors, prospective supporters, and prospective donors. It does not include aggregated information derived from data supplied for the purposes of the Service or Insights resulting from analysis of the provided data.

“Deliverables” means the deliverables to be provided as part of the Services, as more particularly described in a Proposal.

“Fees” means the prices payable by the CLIENT for the Services as agreed between the parties in the Proposal.

“Intellectual Property Rights” means all present and future rights in and to Data, trade secrets, patents, copyrights, trademarks, logos, service marks, know-how and other proprietary rights of any type arising at law, including rights in all data contained in a website relating to a party, information, text, look and feel, material, graphics, software, and advertisements.

“Personal Information” means any information or opinion about an individual as defined in the Privacy Act 1988 (Cth).

“CLIENT Materials” means materials provided by the CLIENT to FUNDRAISING INSIGHTS in connection with this Agreement including without limitation the CLIENT’s name, logo and trademarks and any third-party materials provided by the CLIENT to the FUNDRAISING INSIGHTS in connection with this Agreement.

“Proposal” means a document created by FUNDRAISING INSIGHTS including a description of the Services and Fees.
“Services” means the services provided by FUNDRAISING INSIGHTS in accordance with this Agreement and the Proposal(s).

“Term” means the term as agreed by the parties in the Proposal or in the absence of such term, 18 months from Commencement Date.

1.2. Interpretation

In this Agreement:

1.2 (a) all headings are for convenience only and do not affect the interpretation of this Agreement;

1.2 (b) references or words importing the singular include the plural and vice versa;

1.2 (c) references to currency shall be references to Australian dollars and shall, unless otherwise specified, be exclusive of GST which shall be payable when due in addition to the amounts referred to in the Proposal;

1.2 (d) references to clauses, schedules and annexures, unless otherwise provided, shall be references to clauses, annexures and schedules to this Agreement.

2. SERVICES

2.1. The CLIENT appoints FUNDRAISING INSIGHTS for the supply of the Services for the Term as described in this Agreement and the Proposal.

2.2. This Agreement constitutes the entire agreement between the parties for the Services, and supersedes any prior agreements or arrangements whether oral or writing, and any subsequent terms and conditions that may be provided to the CLIENT by FUNDRAISING INSIGHTS in relation to the Services.

3. PAYMENT TERMS

3.1. The parties agree that FUNDRAISING INSIGHTS will charge the Fees specified in the relevant Proposal and the CLIENT will pay the Fees within 7 days from the invoice date.

3.2. The parties agree that any change in the prices will be subject to a mutual written agreement in accordance with this Agreement.

3.3. Unless expressly stated otherwise on the Proposal the consideration for any supply made pursuant to this Agreement excludes GST.

4. CONFIDENTIAL INFORMATION

4.1. The CLIENT acknowledges that FUNDRAISING INSIGHTS’s products are collaborative in nature and certain information is intended to be shared. Only summarised, aggregated data in an ‘analytics insight’ format will be shared. No personal information (e.g. donor contact details) will ever be shared.

4.2. Both parties agree to keep confidential all Sensitive Information provided by the other party. This includes all systems and documentation that each party makes available to the other party but would not generally make available to the general public, and does not make known to other participants.

4.2. The obligations contained in this clause continue beyond the expiry of the Term or any termination of this Agreement.

5. DATA PROTECTION

5.1. FUNDRAISING INSIGHTS acknowledges that the CLIENT owns the Data it has supplied for the provision of the Services.

5.2. FUNDRAISING INSIGHTS subcontracts to THE DATA COLLECTIVE CONSULTING PTY LTD (ABN 47 621 388 690) to provide data processing and analysis to deliver the Services.

5.3. By accepting data from the CLIENT, FUNDRAISING INSIGHTS and its subcontractors agree:

5.3 (a) to comply at all times with all applicable legislation including without limitation, the provisions of the Privacy Act 1988 (Cth) and Australian Privacy Principles, the Spam Act 2003(Cth) and the Do Not call Register Act 2006 (Cth);

5.3 (b) not to disclose any Data to any third party except: (i) for subcontractors mentioned in section 5.2; in any form at any time without the prior express written consent of the CLIENT;

5.3 (c) to destroy all Data or any part of the Data upon completion of the Services or as requested by the CLIENT on termination of this agreement;

5.3 (d) not transfer any Data outside Australia, or allow parties outside Australia (including third-party contractors or related body corporates) to have access to it, without the prior written consent of the CLIENT.

6. INTELLECTUAL PROPERTY

6.1. All Intellectual Property Rights in and to the Deliverables will immediately vest in FUNDRAISING INSIGHTS. The CLIENT has no claim to the works of FUNDRAISING INSIGHTS resulting from its participation now or in the future.

6.2. As between the parties, all Intellectual Property Rights in and to the CLIENT Materials shall remain vested in the CLIENT. The CLIENT hereby grants to FUNDRAISING INSIGHTS a non-exclusive, royalty-free license to use the CLIENT Materials solely as necessary to perform the Services.

7. CONSULTANCY AND ADVICE DISCLAIMER

7.1. FUNDRAISING INSIGHTS will advise the CLIENT based on its experience on what it considers are the best strategies and tactics appropriate for the CLIENT, in the current context. FUNDRAISING INSIGHTS is an experienced fundraiser, but it is not a lawyer or financial adviser. FUNDRAISING INSIGHTS’s advice is based on:

7.1 (a) information given by the CLIENT to FUNDRAISING INSIGHTS;

7.1 (b) FUNDRAISING INSIGHTS’s experience;

7.1 (c) FUNDRAISING INSIGHTS’s understanding of the CLIENT’s organisation (based upon information given by the CLIENT to FUNDRAISING INSIGHTS);

7.1 (d) the CLIENT’s fundraising history and results;

7.1 (e) results achieved by other CLIENTs of FUNDRAISING INSIGHTS;

7.1 (f) results from other charities of which FUNDRAISING INSIGHTS is aware;

7.1 (g) previous qualitative and quantitative research results available to FUNDRAISING INSIGHTS;

7.1 (h) published papers (e.g. in marketing journals) of which FUNDRAISING INSIGHTS is aware;

7.1 (i) anecdotal information of which FUNDRAISING INSIGHTS is aware;

7.1 (j) information FUNDRAISING INSIGHTS obtains from seminars / training sessions;

7.2. FUNDRAISING INSIGHTS will endeavour to communicate all of its advices as clearly as possible.

7.3. FUNDRAISING INSIGHTS offers products and services as well as consultancy. Within the consultancy, FUNDRAISING INSIGHTS may suggest that the CLIENT use other services that FUNDRAISING INSIGHTS or related businesses provides. This will not be at the expense of advising what FUNDRAISING INSIGHTS believes is the best tactic or strategy for the CLIENT.

7.4. Where FUNDRAISING INSIGHTS recommends another business, the CLIENT remains responsible for determining whether that business meets the needs and expectations of the CLIENT.

7.5. FUNDRAISING INSIGHTS will also endeavour to be clear about risk. When an idea is new or untried, FUNDRAISING INSIGHTS will advise the CLIENT accordingly.

7.6. FUNDRAISING INSIGHTS will advise and work with the CLIENT on ideas and strategy but all new fundraising ideas (whether new per se, or new to the CLIENT’s organisation) have an element of risk, for which FUNDRAISING INSIGHTS accepts no responsibility.

7.7. FUNDRAISING INSIGHTS does not warrant that any particular Projects or campaigns or ideas generated will achieve any suggested campaign targets or key performance indicators, nor that any of the same will generate any level of or increase in relevant donations.

7.8. The CLIENT agrees that FUNDRAISING INSIGHTS will not be liable to the CLIENT in any way simply because the results of any Project, campaign or idea failed to meet the CLIENT’s expectations or because certain donation levels or increases were not generated by any particular Project, campaign or idea.

7.9. The CLIENT agrees to consider FUNDRAISING INSIGHTS’ advice in the good faith in which it is delivered but accepts that any actions taken by the CLIENT based on that advice are solely the responsibility of the CLIENT.

8. CLIENT’S STATUTORY RIGHTS

8.1. These terms and conditions do not exclude, restrict or modify:

8.1 (a) the application of any provision of the Australian Consumer Law (ACL);

8.1 (b) the exercise of any right or remedy conferred by the ACL; or

8.1 (c) the liability of FUNDRAISING INSIGHTS for a failure to comply with the ACL,

where to do so would:
8.1 (d) contravene that statute; or

8.1 (e) cause any part of these terms and conditions to be void.

9. LIMITATION OF LIABILITY

9.1. Subject to clause 8, any representation, warranty, condition, guarantee or undertaking which (but for this clause) would be implied in these terms and conditions by law, is excluded.

9.2. FUNDRAISING INSIGHTS is not liable to the CLIENT for any claim (including any demand, claim, suit or action for loss, damages, compensation, costs or any other remedy actual, contingent or otherwise) which would or might (but for this clause) arise directly or indirectly out of these terms and conditions, tort, statute or otherwise, including as a result of:

9.2 (a) any act or omission beyond FUNDRAISING INSIGHTS’ reasonable control; or

9.2 (b) any act or omission, default or misrepresentation of FUNDRAISING INSIGHTS or its related entities, employees, agents or contractors (“Claim”).

9.3. FUNDRAISING INSIGHTS’ liability for breach of a non-excludable consumer guarantees under the Australian Consumer Law, in relation to the supply of goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at FUNDRAISING INSIGHTS’s option, to:

9.3 (a) in the case of goods – replacing, repairing or paying the cost of replacing or repairing the goods; or 9.3 (b) in the case of services – supplying the services again or paying the cost of having the services supplied again.

9.4. To the extent permitted by law, FUNDRAISING INSIGHTS ‘s maximum aggregate liability for all Claims is limited to the total amount paid by the CLIENT to FUNDRAISING INSIGHTS under these terms and conditions.

9.5. To the extent permitted by law, FUNDRAISING INSIGHTS is not liable for consequential, indirect or special losses or damages of any kind (including, without limitation, loss of profit, business interruption, loss of opportunity or indirect costs) suffered by the CLIENT resulting from any Claim.

10. EVENTS OF DEFAULT

10.1. If either party is in breach of any other material term of this Agreement the non-defaulting party may issue a written notice to the defaulting party to remedy the breach. If the breach is not remedied within seven (7) days of receipt of the notice, the non-defaulting party can terminate this Agreement immediately upon written notice to the defaulting party.

11. TERMINATION

11.1. From time-to-time circumstances beyond the control of either party may result in the need for Project cancellation. These terms and conditions may be terminated by either party, by written notice. Termination will become effective thirty (30) days after such notice has been given.

11.2. In the case of a breach of any provision of these terms and conditions, the non-defaulting party may give written notice to the defaulting party, that if the breach is not cured within ten (10) days, these terms and conditions will be terminated.

11.3. The CLIENT must advise FUNDRAISING INSIGHTS in writing of the request to cancel a Project. Upon receipt of this, FUNDRAISING INSIGHTS will, within 24hrs, agree a cessation plan with the CLIENT that will aim to minimise any further costs being incurred by the CLIENT.

12. VARIATION

12.1. A variation of any term of this Agreement must be in writing and signed by the parties. Any change or amendment will be binding on the parties and form part of this Agreement upon written acceptance of those changes by both parties.

13. FORCE MAJEURE

13.1. Except for any payment obligations, neither party will be liable for any delay or failure to perform if such a delay or failure to perform is caused by any act of God, strike, labour dispute or any other cause beyond the reasonable control of either party. 13.2. If a delay arising out of an event in clause 8.1 continues for more than sixty (60) days, either party may terminate this Agreement immediately upon giving written notice to the other.

14. NOTICE

14.1. Notices under this Agreement must be in writing and may be delivered by hand, by prepaid mail, by facsimile, by email or by other means of electronic communication to the address of the receiving party set out on the Proposal or at such other address as may be later notified to the sender.

15.1. FUNDRAISING INSIGHTS is operating as an independent supplier of the CLIENT. Each party is solely responsible for each of its employees, agents and suppliers and any costs associated with the fulfilment of their obligations.

16. GOVERNING LAW

16.1. This Agreement is governed by the laws of the State of Queensland and the Client irrevocably submits to the non-exclusive jurisdiction of the Courts in this State.

17. SEVERABILITY

17.1. In the event that any provision contained in these terms and conditions shall be determined by a Court or tribunal of competent jurisdiction to be invalid, null or void or otherwise unenforceable or inoperable by reason of contravention of any statute or other law, then such provision shall be severable without prejudice to the operation of the remaining provisions.