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Terms and Conditions

SmartGiving Terms and Conditions (updated 29th January 2020)

Definitions

Account or Charity Account the account opened in the name of the Donor with SmartGiving

Charitable Purposes those purposes approved by the Charity Commission from those institutions and bodies set out in paragraph 6 hereof

Charitable Trust a corporation person partnership or association holding documents or assets on trust for the Donor for Charitable Purposes or a Trust Company

Donor “You”, the person opening an Account

Fee Schedule as amended from time to time and available on our website – www.smartgiving.org.uk/page/fees or on request

Gift Aid the tax credit scheme operated by HM Revenue and Customs (HMRC) and as amended by HMRC from time to time

Gift Aid Agreement  the agreement entered into by You with SmartGiving for the purpose of the Gift Aid scheme

JNF JNF Charitable Trust, a charity registered in England and Wales (Charity Number 225910)   and a company incorporated in England and Wales (Company Number 355248). Registered office Mountcliff House, 154 Brent Street, London, NW4 2BF.

SmartGiving the trading name of KKL Charity Accounts (KKLCA), a charity registered in England and Wales (Charity Number 1105998) and a company registered in England and Wales (Company number 5118360).  Registered office Mountcliff House, 154 Brent Street, London, NW4 2BF.

Trust Company any company holding documents or assets of a Deceased Donor

Using SmartGiving Charity Account, Donation and Fundraising Tools

2.1 All funds deposited into the Donor’s Account including any Gift Aid tax repayment constitute a charitable donation and shall be disbursed by SmartGiving in accordance with the Donor’s instructions for any Charitable Purposes.

2.2 All funds deposited in the Donor’s Account prior to the Donor’s demise are given away for Charitable Purposes.

Gift Aid and Charitable Giving

3.1 Where applicable SmartGiving will recover Gift Aid on donations to the Donor’s SmartGiving Account subject to HMRC Gift Aid scheme requirements and the terms and conditions of our Gift Aid Agreement. It is the responsibility of the Donor to advise SmartGiving of any change of address or taxation status.

3.2 SmartGiving does not guarantee to recover Gift Aid where incorrect or ineligible information is provided that may temporarily or permanently disrupt the Gift Aid process.

3.3 In order to comply with HMRC tax regulations, a SmartGiving Account must be in the sole name of the Donor. If the Donor uses a personalised charity voucher book to make donations from the Donor’s Account, the vouchers may bear joint names.

3.4 Payment into the Donor’s SmartGiving Account may be made by debit card, credit card, direct debit or cheque. Deposits made from non-personal accounts will be exempt from Gift Aid.

3.5 Donations from the Donor’s SmartGiving Account may only be made to UK charities that are on the register of the Charity Commission (England & Wales), the Office of the Scottish Charity Register, the Charity Commission for Northern Ireland or recognised by HMRC as a charity or Community Amateur Sports Club (CASC) for UK tax purposes. Donations may only be made to overseas charities if purely for Charitable Purposes and at the discretion of the directors of KKLCA. Any additional fees incurred will be paid by the Donor. In all cases, donations cannot be used to buy goods and services from charities.

3.6 SmartGiving reserves the right to refuse to disburse a donation:

  • to any charity that is not registered or recognised in accordance with paragraph 6 and/or
  • to any charity which would place the SmartGiving in contravention of its Memorandum and Articles of Association {MAA} (please contact us for a copy of the MAA) and/or where in the sole opinion of the directors of KKLCA, the wishes or request of the Donor are not possible, practical, ethical or viable or do not fulfil Charitable Purposes.

Account Management

4.1 Donors can access online their electronic record of activity within their Account. It is the Donor’s responsibility to ensure that log in and password details are not disclosed to third parties.

4.2 The Donor may download transactions covering a period of up to 2 years. It is the Donor's responsibility to safeguard this information once downloaded.

4.3 The Donor shall be responsible for monitoring activity in their Account to ensure that it is being operated in accordance with the instructions received by SmartGiving.

4.4 Where the Donor is an individual, the Donor hereby agrees that he donates, immediately prior to his death, all funds in his Account which are irrevocably donated for Charitable Purposes and do not form part of the Donor’s deceased estate.

Letter of Wishes

5.1 The Donor may make a request in a Letter of Wishes as to which charities SmartGiving distributes any funds in the Donor’s Charity Account for Charitable Purposes after the Donor’s death.

5.2 If on or prior to the date of death of a Donor, a Donor has left a Letter of Wishes with SmartGiving, or with the Donor’s personal representatives or a Charitable Trust, SmartGiving shall distribute the remaining funds held in the Account in accordance with the Letter of Wishes, subject always to receiving the original Letter of Wishes within 180 days of the date of death of the Donor, and subject to the terms of paragraph 6 hereof and after such distribution to close the Account.

No Letter of Wishes

6 If the Donor dies and has not left a Letter of Wishes with SmartGiving, or with his Executors, a Charitable Trust or a Trust Company, SmartGiving shall be entitled (if no original Letter of Wishes is received by them within 180 days of the date of death of the Donor) to transfer the money in the Account to charities of their choosing and close the Account.

Inactive Accounts

7.1 SmartGiving may in particular, in the following circumstances set out at a), b), c) or d) below, distribute all or part of a Donor’s Account for Charitable Purposes as instructed from time to time by the directors of KKLCA without seeking or having regard: (1) where the Donor is  an individual,  to the Donor’s or Donor’s personal representatives’ wish or request or (2) where the Donor is a company, Charitable Trust or Trust Company in liquidation or receivership or has been wound up,  to the Directors of the company its liquidators or receivers

  1. inactivity assets are held in the Account but have not been distributed from the Account for a two-year period and for a period of at least 30 days following a notice served in accordance with paragraph 16 of this agreement; deduction of fees, costs, contributions or expenses shall not be considered a distribution from the Account for these purposes; or
  2. incapacity in SmartGiving’s reasonable opinion the Donor’s capability or capacity to complete any documentation or otherwise make a request or express a wish as to how the assets should be distributed is in doubt
  3. upon the death of the Donor
  4. upon the appointment of a liquidator, receiver or winding up of a company or Trust Company

No Interest

8 The Donor will not be paid interest on funds in the Donor’s SmartGiving Account; we normally disburse funds to specified charities within a week and any interest earned by SmartGiving is donated for Charitable Purposes.

Errors

9 SmartGiving reserves the right to retrieve any monies that are paid out in error to any beneficiary for any reason.

Costs of Administration

10 SmartGiving shall make deductions from the Donor’s SmartGiving Account to cover the costs (including VAT where applicable) of administering the Account as set out in our Fee Schedule. These fees together with any funds undistributed in accordance with the terms of paragraphs 7 and 11 of this agreement will be donated for Charitable Purposes.

Insufficient Funds

11 If the Donor makes a donation from the Donor’s Account and there are insufficient funds in the Donor’s Account, we will contact you to top-up the Donor’s Account. We will continue to try and make donations from the account for up to 60 days.  Thereafter, SmartGiving will cancel the Donor’s instructions.

Notices

12.1 Notices in connection with the Donor’s SmartGiving account are to be provided to SmartGiving’s office at Mountcliff House, 154 Brent Street, London, NW4 2BF or such other address as appears on the SmartGiving website for this purpose, or by email to info@smartgiving.org.uk and SmartGiving will give notice to the Donor at the address given by the Donor  in the Donor’s  application or as subsequently notified in writing  by the Donor   to SmartGiving. The Donor shall provide any new contact details to SmartGiving as soon as practicable.

12.2 Any notice or other communication given under or in connection with the Donor’s SmartGiving Account shall be in writing and deemed to be delivered as follows: Delivered by hand – deemed to be delivered at the time of delivery; or Sent by post – deemed to be delivered at 9am on the second day after the date of posting; or Sent by email to the relevant party – deemed to be delivered at the time of sending (except that if an automatic electronic notification is received by the sender informing the sender that the email has not been delivered to the recipient, then that email shall be deemed not to have been served).

Fundraising Regulator and Complaints

13.1 SmartGiving proudly works with the Fundraising Regulator (“FR”). This is because we are committed to the highest standards in fundraising and strive to always work in a way that is effective, open and honest. We are dedicated to raising funds in the most cost-effective ways in order to benefit charities in the UK and worldwide.

13.2 The FR is an independent body who set and maintain the standards for charitable fundraising. The FR’s primary function is to deal with complaints about fundraising activity from members of the public, allowing people to give to charitable organisations with confidence.
13.3 By joining the FR we agree to adhere to the *Code of Fundraising Practice and the **Fundraising Promise.

13.4 If you have a complaint in relation to any aspect of the Donor’s SmartGiving Account, we will make every effort to resolve the complaint quickly and fairly in accordance with our complaints procedure.  Please contact us for a copy of our complaints procedure.

Data Protection

14.1 SmartGiving will not share information about a Donor with any outside person or organisation, other than JNF which is entitled to control the majority of Members (as defined in the Memorandum and Articles) of KKLCA, except where this has been authorised by the Donor or a person acting with their authority or where SmartGiving is legally obliged to do so.

14.2 A Donor's contact details will be shared with their chosen charities only if they have agreed to this by opting in to receive updates from their charities.

14.3 Charities can only contact Donors where they have received this active consent, and contact preferences can be changed at any time including to remove the Donor’s consent.

14.4 It is the Donor’s responsibility to update their contact preferences and contact details by updating the profile section of their Account.

Force Majeure

15.1 Neither SmartGiving or the Donor shall be in breach of these Terms and Conditions if such delay or failure results from events, circumstances or causes beyond their reasonable control.

15.2 In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

Amendment of these Terms and Conditions

SmartGiving may change any of the terms set out in these terms and conditions on providing one month’s written notice to the Donor at the address held on file (email or postal) for such person where SmartGiving is required to change such terms for legal and/or regulatory reasons.

Limitation of Liability

17.1 SmartGiving shall not be liable for any instructions not given by the Donor or their approved representative.  Nothing in this agreement limits or excludes SmartGiving’s liability for: death or personal injury resulting from SmartGiving's negligence; any damage or liability incurred by the Donor as a result of fraud or fraudulent misrepresentation by SmartGiving or their Directors or Trustees; or for any other matter for which the limitation or exclusion of liability is prohibited by law.

17.2 SmartGiving shall not be liable for loss of anticipated savings; loss of opportunity; loss of or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;

17.3 To the extent that liability is not lawfully excluded by this clause 17, the total liability of SmartGiving in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance or failure to perform under or in respect of this Agreement shall be limited to the amount deducted from a SmartGiving Charity Account in order to pay SmartGiving's fees, costs, contributions or expenses during the year in which the liability arose.

Accounts and Records

18 SmartGiving shall maintain records in relation to the Charity Account separately. SmartGiving shall keep copies of all records and all reports or statements provided to the Donor for at least four years after closure of the Charity Account.

Governing Law

19 This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the determination of any dispute (including without limitation) in relation to any non-contractual obligations) and each party irrevocably waives any objection to the jurisdiction of those courts on the grounds of inconvenience or otherwise.

* Code of Fundraising Practice - https://www.fundraisingregulator.org.uk/more-from-us/resources/fundraising-promise

** Fundraising Promise -https://www.fundraisingregulator.org.uk/more-from-us/resources/fundraising-promise

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