End User Licence Agreement
Floodgate App Pty Ltd Australia, Suite 8, 33 Heatherdale Road PO BOX 1046 Ringwood VIC 3134, Australia (We, us or our) THE PARTY REFERRED TO IN SCHEDULE 1 (You, your)
1 Definitions and Interpretation
The following definitions apply in these terms:
Account means an account specific to you and your use of the Services accessed by User Identification.
Business Day means a business day, which excludes weekends and public holidays in Auckland, New Zealand.
Charitable Fundraising means fundraising for Not For Profit Organisations.
Claim means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Consequential Loss means any special, indirect, incidental, consequential or economic loss (including loss of revenue, savings, opportunity or goodwill), even if the possibility of such a loss being suffered has been brought to the attention of the relevant party.
Content means all forms of information, including text, voice, pictures, animations, video, sound recordings, software, separately or combined, sent and received across a network.
Controller has the same meaning as set out in the Privacy Laws.
Device means any hardware used to access our Service.
DPA means our data processing agreement, as amended from time to time which can be accessed at secure.floodgateapp.com.
European Economic Area, EEA means the member states of the European Union from time to time plus additional states that are party to the EEA Agreement from time to time.
Enhancements mean new releases and updates of the Service generally made available by us containing new features or functions of performance.
Entry means a single upload of Sponsor Information to the Service.
Fee means the fee payable for a SaaS Licence as set out in Schedule 1 or as amended from time to time by us.
Force Majeure means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency.
Fundraising Agent means a person or other entity engaged by you to undertake Charitable Fundraising on your behalf.
Government Agency means a government or governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
Intellectual Property means all Intellectual Property Rights in or relating to the Service, including all programme and software elements, any derivative works and all of our copyrights, trademarks or any other identifying characteristics used in relation to the Services.
Intellectual Property Rights means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world. .
Loss means a damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, and includes Consequential Loss.
Not For Profit Organisation means an institution, organisation or fund that is not for profit or a charity and non-governmental organisations which are established to help the needy, the relief of human suffering or for general social betterment.
Personal Data has the meaning given in the Privacy Laws.
Personnel means any staff (including temporary, casual or unpaid workers) and sub-contractors employed or appointed by the Processor.
Privacy Laws means Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time, or replaced by subsequent legislation).
Processing has the same meaning as set out in the Privacy Laws and other parts of the verb “to process” shall be construed accordingly.
Processor has the same meaning as set out in the Privacy Laws.
Purchase means your physical or electronic purchase order, including all the required information about your fundraising campaign, submitted to us when you intend to purchase a SaaS Licence.
SaaS Licence means a limited, non-exclusive, non-transferable, world-wide licence to use our Service for the term of this Agreement, in accordance with this Agreement.
SaaS Licence Commencement Date means the date on which we give you access to log on and use the Service.
Scheduled Maintenance Windows means a period of time where the Service will be unavailable.
Service means the system and application provided by us and any Updates or
Enhancements to it, which is accessed by a web browser on a user’s Device, that provides a Not For Profit Organisation or their Fundraising Agent, with web enabled support and management of its Charitable Fundraising processes and the capture and tracking of Sponsor Information uploaded from Devices.
Specifications means the specifications noted on the Website about the Service.
Sponsor Information means any Personal Data, financial details and such other information of a person, company or other entity who provides or intends to provide donations of cash or in kind goods and services for a Charitable Fundraising activity.
Support means the support specified in Schedule 3 which we provide you in relation to the Service during the currency of your SaaS Licence.
Tax means any tax, levy, charge, impost, fee, deduction, value added tax or withholding tax that is assessed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or any other amount imposed on, or in respect of any of the above.
Updates mean updates of the Service generally made available by us containing correction of reported bugs, defects or errors, change, amendment or modification to the Service but which does not materially affect existing functionality.
User Identification means the unique username and password issued or otherwise assigned by us to you for access to and use of the Service.
You or you or your means the user who has made a Purchase and uses the Service in accordance with this Agreement.
Your Content means any content (including Sponsor Information) you:
- run on our Service,
- cause to interface with our Service, or
- upload to our Service under your Account or otherwise transfer, process, use or store in connection with your Account.
We or us or our means Floodgate App Pty Ltd (ABN 63 146 406 797).
Website Terms means the terms and conditions for use of the website.
The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply.
- A reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
- A reference to a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated.
- A reference to a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assign of that party.
- A reference to a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person.
- Headings are for convenience only, and do not affect interpretation.
- A singular word includes the plural, and vice versa.
- A word which suggests one gender includes the other genders.
- If a word is defined, another part of speech has a corresponding meaning.
- A reference to a party in this Agreement is a reference to you or us.
- If you are made up of more than one person then:
(i) your obligations apply to each of those persons jointly and severally; and (ii) any other reference to you is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.
2 The Service
2.1 Charitable Purposes
The Service is provided by us solely for use for Charitable Fundraising and is not to be used by you or your Fundraising Agents for fundraising campaigns of for profit commercial enterprises unless we specifically consent in writing.
2.2 Your Warranty
You warrant you and your Fundraising Agents only use the Service for Charitable Fundraising.
3 The Licence
3.1 Commencement and term
- You must provide all the information we reasonably require about your fundraising campaign as part of your Purchase in order to provide evidence that the campaign is for Charitable Fundraising.
- On receipt of your Purchase, we will assess your fundraising campaign to satisfy ourselves the campaign is for Charitable Fundraising.
- We reserve the right to approve or decline your Purchase at our discretion. If we decline your Purchase we will refund any pre-paid Fee in full within seven days. (d) We will grant you the SaaS Licence appropriate to the Fees you pay once we have approved your Purchase and received payment of the appropriate Fee.
(e) The term of a SaaS Licence will start on the SaaS Licence Commencement Date and continue until terminated or expiry under clause 5.
- To access our Service, we will create an Account for you that will be associated with your e-mail address.
- We will issue you with your User Identification to access and use our Service.
- You are solely responsible for your User Identifications and for ensuring the security and confidentiality of your User Identification.
- Unless explicitly permitted by our Service, only one Account may be created per e-mail address.
- You are responsible for providing, installing and maintaining at your own expense, including data charges associated with your use of Devices, all equipment and facilities necessary to enable you to use our Service.
- You are fully responsible for all liabilities incurred through the use of any User Identification and that any transaction under a User Identification will be deemed to have been performed by you and we are not liable for any unauthorised access to your Account, save where such unauthorised access has occurred wholly as a result of a security breach relating to the Services that was within our control. Use of any User Identification, other than as provided in this Agreement or where resulting wholly from a security breach relating to the Services that was within our control, will be considered a breach of this Agreement by you.
- You will contact us as soon as you become aware that an unauthorised third party:
- may be using your Account or a User Identification; or
- if your Account information or User Identification is lost or stolen.
We do not guarantee that our Service will be continuous or fault free due to the nature of the
Service and reliance on third party networks, however, we aim to have the Service available for 99.9% of the time excluding any Scheduled Maintenance Windows. Where possible in the circumstances we will provide reasonable notice to you of the date, start time and expected duration of Scheduled Maintenance Windows and use our best efforts to schedule such Scheduled Maintenance Windows at times when the disruption to your business will be minimised. Notwithstanding the above, we do not accept responsibility or liability in relation to any loss or damage arising out of any fault or delay whatsoever or howsoever caused, created, maintained, continued or resumed due to unavailability of the Service, other than where such loss or damage is a direct result of a breach by us of our obligations under this Agreement.
4 Your obligations
4.1 Acknowledgements and Acceptance
- By purchasing and/or using our Service, you agree and accept to be bound by this Agreement.
- Where any terms of this Agreement are changed by us on 30 days’ notification to you, you will be deemed to have accepted the Agreement as amended if you continue to use the Service following expiry of that 30 day notice period.
4.2 General obligations
In addition to any obligations set out in this Agreement, you agree to:
- provide any information reasonably required by us and reasonable assistance to us to enable the Service to be provided to you;
- provide any information reasonably required by us and reasonable assistance to us to enable investigations into activities of an illegal nature, including potential incidences of fraud relating to the use of the Service;
- comply with all domestic and international laws, regulations, standards and industry codes applicable to you;
- use our Services for your own internal operations; and (e) only use our Service as specified in this Agreement.
(f) We are responsible for ensuring the security of Card Holder Data (defined as all credit or debit card information provided to us, including a primary account number, expiry and CVV) in our possession and will maintain all reasonable administrative, technical and physical processes to protect all information regarding you and your customers that is stored in our systems from unauthorized access at a level at least as secure as ISO27001. We will also comply with the rules and regulations of Visa, Mastercard, American Express and any other payment card association including the Payment Card Industry Data Security Standard. We cannot guarantee that unauthorized third parties will never be able to circumvent those measures or use such Card holder Data. You agree that, save where we have materially breached this clause 4.2(f), you provide this Card Holder Data regarding you and your customers at your own risk.
4.3 Prohibited Activity
In addition to any obligations set out in this Agreement, you must not:
- directly or indirectly, sell, export, re-export, transfer, divert, or otherwise provide any of our Service (including products derived from or based on our Service) you receive from us under this Agreement to any other person, entity, or destination prohibited by your local laws;
- copy, distribute, install, reproduce or in any way provide our Service to a third party; (c) modify, adapt, translate, duplicate, disassemble, reverse assemble, reverse compile, or reverse engineer, or take similar action with respect to our Service for any purpose;
- create any derivative works based on our Service;
- use our Service for any activity of an illegal or fraudulent nature, or to violate any law; (f) transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted;
- disclose to any unauthorised person any Confidential Information or Personal Data obtained in your use of our Service;
- allow, permit or enable any unauthorised use of our Service; or
- reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from your use of our Service that would infringe the Intellectual Property Rights of any person.
5 Termination, cancellation and suspension
5.1 Suspension, cancellation or termination
(a) We may immediately suspend or cancel your Account and use of our Service or immediately terminate this Agreement without liability to you upon giving notice to you for any reason if:
- we have reasonable cause to believe you are using the Service other than for Charitable Fundraising;
- you, your authorised users or a Fundraising Agent breach the terms of the DPA, Privacy Laws, SaaS Licence terms or Intellectual Property Rights of a third party;
- you, your authorised users or Fundraising Agents materially breach the terms of this Agreement, and where that breach is capable of remedy, you have not remedied such breach within 30 days of being notified of the breach by us;
- we are required by law to do so, or are requested to do so by a law enforcement agency;
- you provide false or incomplete information about you relating to your use of our Service;
- we reasonably believe your Account is being accessed by persons other than you, your authorised users or Fundraising Agents; or
- there are serious technical problems which require corrective action.
(b) You may terminate this Agreement at any time by giving us 30 days written notice.
5.2 Termination by expiry
Your SaaS Licence will expire upon you reaching the maximum number of Entries applicable to the SaaS Licence you Purchase or termination of this Agreement, whichever is earlier.
5.3 Discontinued Service
- We may at any time, with written notice to you, discontinue the Service provided that we are discontinuing the Service to all of our EU customers, and that such discontinuation is not applied prejudicially towards you.
- Where we discontinue the Service we will:
- work with you to migrate Your Content, provided you have a current SaaS Licence and further provided that if you do not migrate Your Content within twelve months from us discontinuing the Service Your Content will be deleted;
- refund on a pro rata basis the portion of any unused SaaS Licence fees based on the number of Entries collected under the relevant SaaS Licence within thirty days of discontinuing the Service.
6 Effect of Termination
6.1 Accrued Rights
Termination of this Agreement for any reason does not invalidate, waive or in any other way affect the rights of a party which have accrued prior to termination.
6.2 No Access
If your Account is cancelled or SaaS Licence is terminated under clause 5.1 you will not be permitted to use the Service and we will prevent your access to the Service and your Account, however, we will provide you with access to your Account and the Service solely for you to retrieve Your Content in accordance with clause 6.4.
6.3 Limited Access
At our discretion, you will be able to continue to upload Your Content to the Service, however, you will not be able to download or transfer Your Content or use all the functionality of the System:
- for the duration of any period for which we suspend your use of our Service or your
Account for an event under clause 5.1(a); or
- on expiry of the SaaS Licence under clause 5.2 until such time as you have brought your SaaS Licence up to date.
6.4 Accessing Your Content
- We will store Your Content on the Service for a maximum of twelve months from the date your SaaS Licence is terminated or expires.
- If you do not Purchase a new SaaS Licence, we will on your written request permit you to retrieve a copy of Your Content or ask us to delete it, subject to the provision of the DPA.
- If you do not make a request to us to be given a copy of Your Content or for it to be deleted within such twelve month period, Your Content will be deleted from the System after expiry of the 12 month period.
6.5 Refund of Fees
Notwithstanding any other provision of this Agreement, where this Agreement is terminated by you for our material breach, we will refund to you on a pro rata basis the portion of any unused SaaS Licence fees based on the number of Entries collected under the relevant SaaS Licence within thirty days of termination of this Agreement. Promotional and Free credits cannot be refunded or transferred.
7 Updates and Enhancements
You acknowledge that, in order for you to use our Service, you will need to use compatible Devices. We do not warrant that our Service will be compatible with all Devices.
7.2 Updates and Enhancements
(a) You may be required to download software to a Device or follow any instructions provided when we make Updates to the Service as part of our general operations from time to time (User Updates). If you do not download software to a Device or follow any instructions provided you may not be able to continue to use the Service and you acknowledge we do not provide support for superseded versions of the Service. (b) We reserve the right to charge additional fees for Enhancements.
(a) While you have a current SaaS Licence we will provide Support for the Service which will be available twenty-four hours a day, seven days a week throughout the calendar year. (b) We reserve the rights to cease providing Support if you fail to meet any of your material obligations under this Agreement.
8 Privacy, Your Content and Personal Data
8.1 Compliance with Local Laws
You warrant that all Your Content which contains Personal Data has been collected and disclosed in accordance with relevant applicable data protection laws, principles and agreements and you have in place all necessary registrations with authorities to permit us to transfer Personal Data to third parties pursuant to our obligations under this Agreement.
8.2 Data Processor and Data Controller
To the extent that Personal Data is processed when you, authorised users or Fundraising Agents use the Service, the parties acknowledge that we are a Data Processor and you are a Data Controller and the parties shall comply with their respective statutory data protection obligations. .
8.3 Ownership of Your Content
You retain all right, title and interest to Your Content and all Personal Data and all Intellectual Property Rights in Your Content and Personal Data.
8.4 Our Obligations
We confirm that we:
- will only process Personal Data on behalf of, and in your name;
- will only process the Personal Data in accordance with your documented instructions;
- have taken, as well as our subcontractors sufficient and appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, having regard to the state of technological development and cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected.
8.5 GDPR compliance
In addition to the above obligations, from the 25th of May 2018 the parties shall comply with their respective obligations set out in the DPA. In the event of any conflict between clauses 8.2 and 8.4 of this Agreement and the terms of the DPA, the terms of the DPA shall prevail.
(a) Each party acknowledges and agrees that it will treat as confidential information all information provided by the other party to it in relation to this Agreement, including any technical, operational, billing, pricing and commercial information in relation to the supply of the Services under this Agreement. (b) A party must not use, disclose or permit any third parties access to any confidential information except:
- to its employees, legal or financial advisors on a ‘need to know’ basis;
- with the other party’s prior written consent;
- if required by law, any regulatory authority; or (iv) if it is already in the public domain.
- each party agree to return all confidential information to the other party within ten days after the termination of this Agreement.
10 Intellectual Property Rights
You acknowledge and agree that we own:
- all rights, title and interests in and to our Service; and
- all Intellectual Property created in connection with our Service or your use of our Service, excluding the Intellectual Property Rights in Your Content or any Personal Data which shall be owned by you outright.
- IPR Indemnity
We shall at our own expense, defend or at our own option settle any claim brought against you by a third party on the basis of an infringement of any Intellectual Property Rights by you use of the Services (excluding any claim deriving from use of any of Your Content) and pay any final judgment entered against you on such issue or any settlement thereof, provided that:
- You notify us promptly of each such claim;
- We are given sole control of the defence and/or settlement; and
- You fully co-operate and provide all reasonable assistance to us in the defence or settlement.
If all or part of the Service becomes, or in our opinion may become, the subject of a claim or suit of infringement, we shall at our own expense and sole discretion:
- procure for you the right to continue to use the Service or the affected part thereof; or
- replace the Service or affected part with another suitable non-infringing service or software.
- modify the Service or affected part to make the same non-infringing.
We shall have no obligations under this clause 10.2 above to the extent that a claim is based on:
- a modification of Service by anyone other than us;
- the combination, operation or use of the Service with other services or software not provided by us if such infringement would have been avoided in the absence of such combination, operation or use; or
- the use of the Service in any manner inconsistent with this Agreement; or
- the negligence or wilful misconduct of you.
This clause 10.2 states your sole and exclusive rights and remedies and our entire obligations and liability for any claims made under this clause 10.2.
11 Fees and charges
Fees are set out in Schedule 1. We may change the Fees from time to time and we will give you thirty days written notice if there is a change in the Fees.
11.2 When fees are payable
Fees are payable up front, in advance of your use of the Service.
- Except under clause 5.3(b), you are not entitled to any refunds on termination or expiry of the SaaS Licence under clauses 5.1 or 5.2(b) or if our Service is suspended or unavailable for use for a substantial period and that suspension or unavailability is not caused by our default.
11.3 Payment Methods
You may make your payment via any methods set out on our website or any payment portal we make available to you.
We will store your payment details and transaction data securely in accordance with clause 4.2(f). It is your responsibility to keep your payment details secure and will we not be liable for any Loss or Claim you may have against us in relation to the provision of your payment details, provide we have complied with the security requirements in clause 4.2(f).
You acknowledge and agree that subject to clause 3.3:
- we provide you with our Service “as is”;
- while our Services will be hosted on our servers, we may require you to download software or applications to your Devices in order to access and use the Service, but this does not grant you any other rights other than those provided in this Agreement; (c) our Service is not and will not be free from faults or interruption (which may include
server failure, any server congestion or any drop out);
- quality of our Service may vary at times, which also depends on your Devices and third party networks; and
- our Service may not be available at all times.
12.2 No Warranty
(a) We do not exercise any control over, authorise or make any warranty regarding:
(i) your right or ability to use, access or transmit any Content using our Service; (ii) the accuracy, reliability or completeness of any Content which you may obtain, use, access or transmit using our Service, including data which may be cached as part of our Service; and
(iii) the consequences of you using, accessing or transmitting any Content, including Your Content, while using our Service.(b) We do not warrant or guarantee that our Service, including any software or application to enable or use the Service you have downloaded on to your Device:
- is bug free or virus free (including worms or Trojans).
12.3 Exclusion of Warranties
Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law..
13 Liability and Indemnity
13.1 No Limitation on Liability
Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
13.2 No Liability for Consequential Loss
Neither party shall be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
13.3 No Liability for Loss of Profits
Neither party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
13.4 Limitation on Liability
Subject to clauses 13.1 to 13.3 inclusive the total liability of each party to the other in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement or based upon any claim for indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by you to us during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.
13.5 Liability for Fundraising Agents
You shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any authorised users or Fundraising Agents who access the Service as if such acts, omissions or negligence had been committed by you.
13.6 Exclusion of Liability
We exclude liability for any and all Loss suffered or incurred by you, or any other person that uses our Service in connection with:
- our termination or discontinuation of the Service under clause 5.1;
- any failure to provide all or part of any of our Service including as a result of any network failure, any network congestion or any network drop out, lack of Internet, or any delay in providing our Service where such failure is not within our control;
- any delay, interruption or suspension of our Service is permitted under the terms of this Agreement;
- a material breach by you of this Agreement;
- any incorrect information provided by you or any third party;
- access by you or any other person using your Service to any material available to the public that you find offensive, upsetting, defamatory or personally offensive; and
- access by you or any other person using your Service to any sites that may be illegal.
13.7 Your Indemnity
You shall defend, indemnify and hold us and our Personnel harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from:
- any claimed infringement or breach by you, an authorised user or Fundraising Agent of any Intellectual Property Rights with respect to use of the Service outside of the scope of this Agreement; or
- use by you, an authorised user or Fundraising Agent of any of Your Content or Content, provided by you, an authorised user or Fundraising Agent used together with the Service; or
- any access to or use of the Service by an authorised user or Fundraising Agent in breach of the terms of this Agreement;
- breaches of Privacy Laws or the terms of the DPA by you, an authorised user or Fundraising Agent; and
- any breach of the terms of this Agreement by an authorised user or Fundraising Agent;
and the we shall be entitled to take reasonable measures in order to prevent any such breaches affecting a third party’s rights from continuing.
14.1 Service Tax
All amounts paid in or provided for or in connection with this Agreement are, unless otherwise specified, exclusive of Tax. If the supply of goods or services by one party (Supplier) to another party (Recipient) under this Agreement is a taxable supply, then the amount due to the Supplier for that supply will be the sum of:
(a) the amount that is payable under this Agreement by the Recipient for that supply (or, if no amount is payable, the value of that supply); and (b) the amount of Tax payable in respect of that supply.
14.2 Tax on Donations
You acknowledge and agree:
- you are responsible for the payment of all Tax associated with all donations, whether in cash or in kind, which are collected for your Charitable Fundraising activities;
- we do not collect or handle any funds on your behalf and have no obligation in respect of any Tax which may be charged on any donations.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable. If that clause cannot be read down, then that provision shall be severed without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this Agreement.
15.2 Non-merger of provisions
A provision of this Agreement which can and is intended to operate after its conclusion will remain in full force and effect.
A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right.
15.4 Relationship between the Parties
We and you are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
This Agreement is governed by and construed in accordance with all applicable laws in force in England and Wales from time to time, and the parties submit to the -exclusive jurisdiction of the courts of England and Wales.
We may vary this Agreement (including varying our Service charges and adding new types of charges) by providing you with 30 days notice in accordance with clause 4.1(b).
We may assign this Agreement to any company in our group of companies, or to any entity that purchases the shares or assets of us as the result of a merger, takeover or similar event. You acknowledge and agree that you may not assign, sub-licence, transfer, lease, rent, sell or share any of your obligation or rights under this Agreement without our prior written consent.
15.8 Entire Agreement
This Agreement (including any addendum or amendment) is the entire agreement between you and us relating to the Service and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by this Agreement.
Unless expressed to the contrary, to the extent of any inconsistency between the terms of this Agreement and any documents referred to herein) and the Website Terms in relation to the Service, the terms of this Agreement and any documents referred to herein will prevail.15.10 Counterparts
This Agreement may be signed in any number of counterparts, each of which will be considered an original and which, when taken together, will constitute one and the same original.
15.11 Force Majeure
Except with respect to your obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under this Agreement due to a Force Majeure , then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
15.12 No Third Party Rights
Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
End User Licence Agreement
Floodgate App ©
Suite 8, 33 Heatherdale Road PO BOX 1046 Ringwood VIC 3134
Schedule 2 Pricing Model for SaaS Licences
All prices shown are in USD
Entries* Rate Total
Schedule 3 Support
Support includes the following for each user account
- Creation of a Floodgate App account;
- Donor pledge form graphic design and implementation to Your brand guidelines; 3. Country specific implementation of banking and contact details validations wherever possible;
- Inclusion of signature pane form disclaimers and notices and addition of custom form fields;
- HTML email design and implementation, inclusion of text placeholders for merged donor data;
- SMS implementation;
- Development of a data transfer that will customise the output of data collected in CSV, XLS or XML formats;
- Set up and implementation of security infrastructure including key generation and support;
- Implementation support, consulting, training, testing and sign off;
- 24 hour, 365 days a year ongoing support via email: firstname.lastname@example.org and via email@example.com and firstname.lastname@example.org We endeavour to respond to critical issues within 4 hours and resolve within 24 hours. Floodgate also utilises a backup server with a safe mode version of our Service which can be accessed if the master version should fail (https://beta.flodgateapp.com/login.aspx). We have representatives based in Australia and Ireland who are available during business hours.