Terms of Service for charitable organisations

1. CHANGES
   1. From time to time, we will make changes to these Terms.  If the changes to these Terms are material and will significantly impact your use of the Services, we will use reasonable efforts to notify you of the changes by reasonable means which may include emailing you in addition to posting the changes on the Supergenerous website.  If you do not agree with any changes to these Terms, you may terminate these Terms and your rights to use the Services as set out in clause ‎12.  By continuing to provide donation receipts to us or otherwise accessing and using the Services from the date on which the Terms are changed, you agree to be bound by the changed Terms.
   2. These Terms were last updated on 12 August, 2022.
2. INTERPRETATION
   In these Terms:
   
   ‍Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services.  Our Confidential Information includes Intellectual Property owned by us (or our licensors).  
   
   ‍Donation Data means donation receipts and related information that you provide to us or that we obtain through the access to your CRM System that you grant to us.
   
   ‍including and similar words do not imply any limit.
   
   ‍Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
   
   ‍Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
   
   ‍Our Materials has the meaning given in clause 3.1.
   
   a party includes that party’s permitted assigns.
   
   a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
   
   ‍personal information means information about an identifiable, living person.
   
   ‍personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
   
   ‍Privacy Act means the Privacy Act 2020.
   
   ‍Services means the services that we make available to charitable organisations, as described in these Terms.
   
   ‍Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
   
   ‍Your CRM System means the IT solution(s) used by you to manage donation information.
   
   ‍Your Materials means content, images, wording, and other information provided by you to us for use on your landing page on the Supergenerous website. 
   
   Words in the singular include the plural and vice versa.
   
   A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
3. THE SERVICES
   1. The primary service that we provide to charitable organisations is paying Rebates that donors have elected to regift to the relevant charitable organisations.  
   2. We also provide content, visual assets, communication tools, donation tools and related services to support charitable organisations in engaging with their donor base (Our Materials).
   3. To use the Services, you must be:
      • a registered charity, school or religious organisation that has been approved by Inland Revenue as an approved donee organisation; 
      • a non-profit association, incorporation or business; or
      • a registered business, individual (aged 18 years or above), or organisation soliciting donations on behalf of an organisation listed above.
   4. Our provision of the Services to you is non-exclusive.  Nothing in these Terms prevents us from providing the Services to any other person.
4. VERIFICATION AND COMPLIANCE
   In order to maintain compliance with laws and to ensure that we maintain a high standard of trust and confidence in our services, we may, in some situations, be required to undertake a verification process to verify your identity. The verification process may include requiring you to provide us with certain personal information and is outlined in the Privacy Policy. Re-verification may be required in the event that you amend or update your details or as part of the requirements for ongoing relationships. For details on the type of personal information we may require from you for verification purposes please see our Privacy Policy.
5. YOUR RESPONSIBILITIES
   1. You confirm that all of the information you provide to us as part of the registration process is true and accurate.  It is your responsibility to update your details as they change from time to time.
   2. As a condition of using our Services, you must invite your donors to sign up to Supergenerous via your communication channels:
      • at the time of each donor’s initial donation; and
      • in communications regarding donation tax receipts, including webpages, blogs, mail and electronic mail.
   3. The invitation to sign up to Supergenerous can be:
      • in the form of an optional checkbox, checked by default on your fundraising page’s donation page;
      • in the form of a sign-up link action call on the thank you page after the donation payment;
      • in the form of a message with call to action on the donation tax receipts or email cover for the donation tax receipts; and
      • accompanied by wording provided to you by us.
   4. If one of your donors opts-in to using Supergenerous, you must store their choice on your CRM System, unless you have provided us with access to your CRM System that enables us to store this information to your CRM System, in which case we will use reasonable efforts to do so.
   5. You will use reasonable efforts to provide us with access to your CRM System for the purposes of accessing Donation Data.  You grant us the right to (subject to you providing us with such access) search for and download, and to process and store Donation Data for your donors who have opted-in to using Supergenerous and for whom we have received an Authority to Act, for the sole purpose of providing the Supergenerous services to those donors.
   6. Unless agreed otherwise in writing, you must display the wording or images requested by us (Supergenerous Branding) on relevant pages regarding donation and donation tax receipts. The Supergenerous Branding must be visible, and you must not display the Supergenerous Branding in the same or similar colour as the background colour you select.
   7. You and your personnel must:
      • use the Services and Our Materials in accordance with these Terms solely for your own lawful internal charitable or business purposes;
      • not resell or make available the Services or Our Materials to any third party, or otherwise commercially exploit the Services or Our Materials; and
      • not use the Services or Our Materials for any activity that falls outside of the Supergenerous Code of Conduct.
   8. A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
   9. You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services and for us to access your CRM System in accordance with these Terms, including to use, store and input Donation Data and Your Materials into, and search, download, process and distribute Donation Data through, your CRM System, the Services and the Supergenerous services. 
   10. When accessing the Services, you and your personnel must:
       • not impersonate another person or misrepresent authorisation to act on behalf of others or us;
       • correctly identify the sender of all electronic transmissions;
       • not attempt to undermine the security or integrity of the Underlying Systems; 
       • not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
       • not attempt to view, access or copy any material or data other than:
         • that which you are authorised to access; and
         • to the extent necessary for you to use the Services in accordance with these Terms; and
       • neither use the Services in a manner, nor provide us with or input any Donation Data or Your Materials, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
6. RECEIPTS AND RECORDS
   1. If required by law, you must issue receipts for donations received by you in connection with Supergenerous and the Services. For donors that opt to regift their Rebates back to you, we may issue receipts on your behalf to donors if you select this feature.
   2. Our procedures do not include verification or validation procedures and are not designed to disclose fraud, material misstatement, or other irregularities that may occur.  You must use reasonable efforts to ensure that donation receipts you provide to us as part of the Donation Data are qualifying donation receipts for tax purposes and to ensure the truth and correctness of those receipts.
   3. You will be able to access the following information from your account on the Services:
      • your contact information;
        
      • the name and email addresses of the donors who have opted into Supergenerous and declared making a donation to you, with any additional data we hold; 
      • records of Donation Data stored in our system, rebates being claimed including those regifted to you and those refunded to the donors, with any additional data we hold; and
        
      • records of all donations (including initial and additional Rebates) net of Supergenerous service fees payable and paid by the donor.
   4. The Services will record all initial donations for the past four tax years form and any regifted Rebates received by you.  The report will be accessible through your account on the Services.
7. DONATION DATA 
   1. You acknowledge that:
      • we may require access to the Donation Data to exercise our rights and perform our obligations under these Terms; and
      • to the extent that this is necessary but subject to clauses ‎8 and 10, we may authorise a member or members of our personnel to access the Donation Data for this purpose. 
   2. You must arrange all consents and approvals that are necessary for us to access the Donation Data as described in clause ‎7.1.
   3. You acknowledge and agree that:
      • we may:
        • use Donation Data and information about your and your personnel’s use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); 
        • use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
        • supply Analytical Data to third parties;
      • our rights under clause ‎7.3a above will survive termination of expiry of the Agreement; and 
      • title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
   4. While we will take standard industry measures to back up all Donation Data stored using the Services, you agree to keep a separate back-up copy of all Donation Data.
   5. You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Donation Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Donation Data is Objectionable, incorrect or misleading.
8. PRIVACY 
   1. This clause ‎8 applies to Donation Data that is personal information (Personal Donation Data).
   2. We will:
      • collect, use, hold and process Personal Donation Data solely:
        • to provide the Supergenerous services to donors who have opted-in to using Supergenerous and for whom we have received an Authority to Act; and
        • to exercise our other rights and perform our other obligations under these Terms.
      • provided you have complied with clause ‎8.2, ensure our collection, use, holding and processing of Personal Donation Data does not cause you to breach the Privacy Act;
      • cooperate with you to resolve any request for access to or correction of Personal Donation Data, or any complaint, made by the relevant individual under the Privacy Act;
      • ensure that access to Personal Donation Data is limited to our personnel who require that access as strictly necessary for the purposes of exercising our rights and performing our obligations under these Terms; 
      • ensure that our personnel that access, hold or process Personal Donation Data are subject to obligations of confidentiality; and
      • ensure that our personnel that access, hold or process Personal Donation Data are informed of the confidential nature of the Personal Donation Data and receive appropriate training on their responsibilities.
   3. You agree that we may store Personal Donation Data in secure servers located outside New Zealand.  We will comply with the Privacy Act when transferring Personal Donation Data out of New Zealand.
   4. You acknowledge and agree that we may engage third parties to access, hold or process Personal Donation Data as service providers to us (Sub-Processors) in connection with the provision of the Services and the Supergenerous services.  We have entered into (and will, for any new Sub-Processor, enter into) written agreements with each Sub-Processor containing obligations which offer at least the same level of protection for Personal Donation Data as set out in these Terms, as applicable to the nature of the services provided by that Sub-Processor.
   5. A list of current Sub-Processors as at 05/08/2022 is set out in the Addendum to these Terms.  We may update the list of Sub-Processors from time to time.  If you object to any new Sub-Processor, you may terminate these Terms and your right to access and use the Services in accordance with clause ‎13.1.
   6. We will maintain technical and organisational measures to protect the confidentiality, integrity and security of Personal Donation Data (including protection against unlawful destruction, loss, alteration, damage or disclosure of, or access to, Personal Donation Data).
   7. We will comply with all applicable laws requiring notification to you of any unlawful destruction, loss, alteration, damage or disclosure of, or access to, Personal Donation Data held or processed by us or our Sub-Processors of which we become aware (Breach Incident).  We will make reasonable efforts to identify the cause of that Breach Incident, notify you within a timely manner to allow you to meet your obligations to report a Breach Incident, cooperate with you in good faith and provide any assistance reasonably necessary for you to comply with your obligations under the Privacy Act with respect to a Breach Incident, including any obligations you have under the Privacy Act to report, notify or investigate a Breach Incident, and take steps we consider necessary and reasonable to remediate the cause of the Breach Incident, to the extent remediation is within our reasonable control.  
9. INTELLECTUAL PROPERTY 
   
   1. Subject to clause ‎9.2, title to, and all Intellectual Property Rights in, the Services (including Our Materials) and all Underlying Systems are and remain our property (and our licensors’ property).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
   2. Title to, and all Intellectual Property Rights in, Your Materials and the Donation Data (as between the parties) remains your property.  You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate Your Materials and the Donation Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
   3. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
   4. If you provide us with ideas, comments or suggestions relating to the Services or the Underlying Systems (together feedback):
      • all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
      • we may use or disclose the feedback for any purpose.
   5. You agree that we may identify you as a Supergenerous partner on our website and in our marketing and other promotional materials. You grant us a non-exclusive, royalty-free license to use, publish and display your name, trade marks, logos and designs (Brands) for these purposes.  We will use the Brands only in accordance with any usage and marketing guidelines provided by you from time to time.  You may withdraw our rights under this clause at any time by written notice to us.
10. CONFIDENTIALITY
    
    1. Each party must, unless it has the prior written consent of the other party:
       • keep confidential at all times the Confidential Information of the other party; 
       • effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
       • disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses ‎10.1a and ‎10.1b.
    2. The obligation of confidentiality in clause ‎10.1 does not apply to any disclosure or use of Confidential Information:
       • for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
       • required by law (including under the rules of any stock exchange);
       • which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
       • which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
       • by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause ‎9.
11. WARRANTIES
    
    1. To the maximum extent permitted by law:
       • the Services are provided as is and as available without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose;
       • all conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded; and
       • we do not promise that the Services will meet your requirements or be suitable for a particular purpose, be secure, free of viruses or other harmful code, uninterrupted or error free or that your use of the Services will result you receiving any regifted Rebates.
    2. You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade.  The parties agree that:
       • to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
       • it is fair and reasonable that the parties are bound by this clause ‎11.2.
       • which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
       • which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
       • by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause ‎9.
    3. Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms.  However, our liability for any breach of that condition or warranty is limited, at our option, to:
       • supplying the relevant Service again; and/or
       • paying the costs of having the relevant Service supplied again.
12. LIABILITY
    
    1. To the maximum extent permitted by law, and without limiting our liability for fraud, wilful misconduct or breach of privacy or to pay you regifted Rebates that our donor customers direct be paid to you:
       • you use the Services at your own risk; 
       • we are not liable or responsible to you or any other person for any claim, damage, loss, liability and cost under or in connection with these Terms, the Services or your use of (or inability to use) the Services.  This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise; and
       • we are not liable to you under or in connection with these Terms or the Services for any loss of profit, revenue, savings, business, use, and/or goodwill; or and consequential, indirect, incidental or special damage or loss of any kind.
    2. Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
    3. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Services.
13. TERMINATION
    
    1. You may terminate these Terms and your right to access and use the Services at any time by sending an email to partners@supergenerous.co.nz requesting to be opted out.  
    2. We may reject your registration for the Services at our discretion. 
    3. We may restrict or suspend your access to and use of the Services, or terminate these Terms and your right to access and use the Services if:
       • a complaint that we consider is serious is received about you in relation to your use of the Services;
       • you breach any of these Terms; 
       • we consider your behaviour to be unacceptable or suspicious; 
       • you have an outstanding invoice;
       • termination or suspension is required by any law or direction from any government, law enforcement or other authority; 
       • we are unable to complete our verification processes as set out in these Terms (including any re-verification requirements); or
       • we are otherwise unable to provide you with the Services. 
    4. We will notify you if we terminate these Terms and your right to access and use the Services.
    5. We may also suspend your access to and use of the Services as necessary for any system maintenance/updates. 
    6. If you or we terminate these Terms and your right to access and use the Services, we will continue to pay you regifted Rebates that our donor customers direct be paid to you, whether before or after the date of termination.
    7. No compensation is payable by us to you as a result of termination of these Terms for whatever reason.
    8. Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
14. GENERAL
    
    1. New Zealand law applies to these Terms.  Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Services.
    2. None of the information given by us or contained on our website constitutes accounting, tax or financial advice in any way. 
    3. If any provision in these Terms is held invalid, then such provision (to the extent it is invalid) is deemed severed from these Terms, and the remainder shall not be affected.
    4. No person other than you and us has any right to a benefit under, or to enforce, these Terms.
    5. For us to waive a right under these Terms, that waiver must be in writing and signed by us.
    6. We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
    7. If we need to contact you, we may do so by email or by posting a notice on the Website.  You agree that this satisfies all legal requirements in relation to written communications.  You may give notice to us under or in connection with these Terms by emailing partners@supergenerous.co.nz.
    8. Clauses which, by their nature, are intended to survive termination of these Terms, including clauses ‎7.7, ‎8, 9, ‎109, ‎11.3, ‎13.6 to ‎13.8 and ‎14.1, continue in force.   
    9. Subject to clause ‎1.1, any variation to these Terms must be in writing and signed by both parties.
    10. These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause ‎14.10.
    11. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.