Terms of Use
Last Modified: February 09, 2023
Welcome to Active Donor!
These Terms of Use, together with our Privacy Policy (collectively the “Agreement”), govern your access/use of our website located at www.activedonor.com (the “Website”) and all software functionality, resources, and services provided by the Company.
The Website, along with the software, resources and services provided by the Company, is collectively referred to as the “Platform”. The Platform is owned and operated by Active Apps (Pty) Ltd, a company formed and operating in accordance with the Laws of the Republic of South Africa from its head office located at Suite 3 534 Peter Mokaba Ridge, Musgrave Durban, KwaZulu-Natal 4091 with company registration number 2017/198108/07 (hereinafter the “Company”, “we”, “Us”, or “Our”).
This Agreement constitutes a legally binding contract between you, an individual or entity (hereinafter the “user”, “you”, or “your”) and the Company. By using the Platform, you represent that you have read and understood this Agreement and agree to be bound by it. If you do not agree with any provision of this Agreement, please do not use the Platform.
YOU ACKNOWLEDGE AND AGREE THAT SOME SERVICES PROVIDED BY THE COMPANY MAY REQUIRE YOU TO AGREE TO SUPPLEMENTARY TERMS. ALL APPLICABLE SUPPLEMENTARY TERMS WILL BE AVAILABLE TO YOU BEFORE YOU MAKE USE OF THE RELEVANT SERVICES. IN CASE OF ANY CONFLICT BETWEEN THE TERMS OF USE AND SUPPLEMENTARY TERMS APPLICABLE TO A SPECIFIC SERVICE, THE SUPPLEMENTARY TERMS SHALL PREVAIL FOR YOUR USE OF THOSE SERVICES.
1. Eligibility
To be eligible to access/use the Platform, you must meet the following eligibility criteria:
1. You must be at least eighteen (18) years of age and have the capacity to enter into a binding legal agreement;
2. If you enter into this Agreement on behalf of a legal entity, you represent and warrant that you meet the criteria in Section 1.1 above, and you have the authority to act on behalf of the legal entity, including the authority to bind the former to this Agreement and all obligations arising from the use of the Platform;
3. You also agree that you will only use the Platform in accordance with the provisions of this Agreement and in compliance with applicable laws and regulations.
2. The Platform
Active Donor is a secure online Platform designed to enable non-profit organisations throughout the Republic of South Africa to efficiently manage their Donor database, communicate with Donors, capture receipts by uploading bank statements or CSV files, issue and manage Section 18A income tax certificates, track projects and fundraising efforts (collectively “Services”).
To make use of our Services, you are required to sign up for a user account in accordance with the applicable provisions of this Agreement. Once you have successfully signed up, you can use the Service by signing into your account. Please note that as a subscriber of the Service, you can add or remove other users who may use the Services within your organisation.
THE USER IS SOLELY RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, SUITABILITY OR LEGALITY OF ANY INFORMATION STORED UNDER THEIR USER ACCOUNT AND FOR ITS COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 (POPI ACT). THE COMPANY IS NOT A PARTY TO ANY TRANSACTION BETWEEN ANY USERS AND THEIR DONORS. WHEN PROCESSING A DONOR’S PERSONAL INFORMATION, THE COMPANY ONLY ACTS AS AN ‘OPERATOR’ PROCESSING SUCH PERSONAL INFORMATION ON BEHALF OF THE USER, WHO IS THE ‘RESPONSIBLE PARTY’ FOR ALL DONOR PERSONAL INFORMATION.
THE COMPANY DISCLAIMS ALL LIABILITY ARISING FROM OR ASSOCIATED WITH A USER’S FAILURE TO FULFIL ITS OBLIGATIONS TOWARDS ANOTHER USER, DONOR OR A THIRD PARTY.
ACCORDINGLY, YOUR RELIANCE UPON ANY INFORMATION YOU RECEIVE THROUGH THE USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL LIABILITY ARISING FROM OR ASSOCIATED WITH THE USE OF THE SERVICE.
UNLESS EXPRESSLY SPECIFIED OTHERWISE, THE COMPANY’S RESPONSIBILITY IS LIMITED TO PROVIDING THE SERVICE FOR THE DURATION OF YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROVISIONS OUTLINED HEREIN. YOUR DECISION TO USE THE SERVICES IS ENTIRELY AT YOUR OWN RISK.
3. Processing of Personal Information
1. The user hereby instructs the Company to process all the personal information of or collected by the user during the use of the Services. The user represents and warrants that its instructions to the Company comply with the POPI Act and other applicable laws and regulations governing the processing of personal information in the Republic of South Africa.
2. The user hereby acknowledges and agrees that it shall be solely responsible for the accuracy, reliability, integrity, quality, and legality of the personal information it provides the Company for processing and the means through which the user acquired the personal information, including obtaining any necessary consents from its employee, and Donors.
3. The user hereby expressly consents to the processing of its personal information in accordance with the provisions of this Agreement.
4. The Company hereby represents and warrants that it complies with the POPI Act and all other applicable laws and regulations of the Republic of South Africa that apply to the processing of personal information.
5. The Company hereby agrees that it will not sell, rent or share the personal information it receives from the user with any third party except as outlined in the Company’s Privacy Policy which is included herein by reference.
6. The Company hereby agrees and warrants that.
6.1. The Company will only process the Donors personal information on the user’s behalf, and such processing of personal information by the Company will be in accordance with the POPI Act;
6.2. The Company uses appropriate security measures to protect the personal information it processes against any accidental or unlawful destruction, loss, alteration, or disclosure. Furthermore, having regard to state of the art, the security measures used by the Company are appropriate for the risks presented by the processing and the nature of personal information processed;
6.3. The Company will keep all the personal information submitted by the user, confidential. The Company will ensure that its employees engaged in the processing of personal information are informed of the confidential nature of the personal information and are bound by confidentiality agreements. Furthermore, the Company will ensure that access to personal information by its employees is limited on a need-to-know basis.
6.4. The Company will only process the personal information on behalf of the user to enable the user to use the Service and to comply with other reasonable instructions of the user provided such instructions are consistent with the Agreement.
7. Breach Notifications: The Company will ensure that it has appropriate security breach incident reporting procedures as required by the POPI Act, and it shall notify the user of any such breaches to user’s of its donor’s personal information without undue delay and to assist the user with its obligations in accordance with the POPI Act.
8. Nothing in this Agreement will require the Company to comply with the user’s instructions if such instructions would violate any applicable laws or regulations.
4. Account Registration and Security
1. You are required to sign-up for an account to make use of our Services. The Company currently offers multiple subscription plans to suit different user requirements. You must select one of the offered plans at the time of your account registration. During account registration, we will request you provide us with some personal data such as your name, email address, and payment data. You agree to provide us with accurate and complete information when requested and keep your information up to date.
2. The Company issues all user accounts at its sole discretion. We are not under any legal or moral obligation to provide a user account to any user. We reserve the right to refuse registration of any user account without providing reasons for our decision.
3. Your Privacy
We only collect personal data necessary to provide our Services, and we process it in accordance with our Privacy Policy. By providing your personal data when requested by the Company, you represent and warrant that all such data is accurate, complete and current. In the event of any change in your personal data, you accept full responsibility for updating your personal data by accessing your user account. The Company reserves the right to terminate your user account or restrict your access to our Service if we suspect that you have provided us with false information or violated any terms of this Agreement. Please carefully review our Privacy Policy before creating your user account, and do not submit any personal data if you do not agree with our practices.
4. Security
You are solely responsible for maintaining the confidentiality of your account login credentials to prevent any unauthorised access to your account. You may add or remove users to your organisation account. You assume full responsibility for all usage and activities that occur under your user account regardless of whether you authorised such use or not. You agree to immediately report any unauthorised access to your account or other suspicious activity to [email protected]. You hereby release the Company and its employees from all liability arising out of or associated with the use of your account login credentials with or without your authorisation. We reserve the right to suspend or terminate your account at any time in accordance with the provisions of this Agreement.
5. Data Charges
Please note that the use of our Service requires access to the internet, and the Company will not be responsible for any data connectivity charges incurred by you or other users within your organisation during this Agreement. All such charges are solely your responsibility.
5. Subscription Payment, Cancellation and Refund Policy
1. Subscription Plans
The Company currently offers multiple subscription plans to suit different user requirements. All our current subscription plans and accompanying subscription fees are listed on our Website and quoted in ZAR. You will be billed for your selected plan in accordance with the provisions of Section 5.3 below.
2. Pricing
We reserve the right to change our subscription fees from time to time at our sole discretion. In the event of any changes in our subscription fee, we will notify you by posting a notice on the Website and/or by sending you an email informing you of our new pricing. Any changes in our subscription fees will not impact your current subscription term, and new subscription fees will only become effective from the date of your subscription renewal. In the event of any change in subscription fees that requires you to pay a higher fee than you did in the last billing cycle, we will give you at least thirty (30) days notice before charging the increased subscription fees to your account. Such notice will be deemed to have been given on the date we sent the notification email to you. If you do not agree with any changes to our subscription fees, your sole remedy is to cease using the Service. By continuing to use the Service after the end of your current subscription term, you agree to pay the new subscription fee for the continued use of our Services.
3. Payments and Auto-Renewal
3.1. We currently accept payment through the secure Payfast payment gateway. You understand and agree that you will be billed according to your selected subscription plan (plus applicable taxes) when you first subscribe to the Service, and your subscription will automatically renew for a new term equal in length to the expiring subscription term until such time that you cancel your subscription (‘automatic renewal’);
3.2. By subscribing to the Service, you agree to the automatic renewal of your subscription until it is cancelled, and you authorise recurring payments for such automatic renewals. In the event we are unable to process your payment to renew your subscription, we will attempt to contact you. If you fail to make the payment within 72 hours from the time we contact you, we may suspend or terminate your user account until such time that we receive the full outstanding subscription fee.
3.3. By providing your payment method at the time of your subscription, you represent that the payment information provided by you is correct, current, and complete and that you have the right to use the payment method provided by you. You are expressly prohibited from paying or attempting to pay through any unlawful means;
3.4. You hereby authorise the Company and/or our third-party payment processor to charge your payment method in accordance with the provisions of this Agreement;
4. Subscription Upgrades and Downgrades
You may upgrade your plan at any time during your current billing cycle, and you will be charged an upgrade fee according to your selected plan. You may only downgrade your plan at the end of your current billing cycle before it automatically renews for the next billing cycle.
5. Cancellations and Refunds
5.1. Please note that the subscription fee is fully earned on the payment day, and we do not offer any pro-rata refunds should you choose to cancel your subscription before the end of your billing cycle;
5.2. You may cancel your subscription anytime without incurring any penalties. Should you wish to cancel your subscription, you must notify us via email at [email protected] with the words “Cancellation” in the subject line.
5.3. You must cancel your subscription before the end of your current billing cycle to avoid being billed for a new term. If you fail to cancel your subscription before the end of your current subscription term, you will be billed for the new term at our then-current subscription fee at the time of automatic renewal of your subscription.
5.4. We handle refund requests on a case-by-case basis. If we, in our sole discretion, decide to offer you a full or partial refund, such refund shall be made via the original payment mechanism and to the person who made the original payment. The processing of refund payment may take time. We are unable to offer any assurances regarding the timeliness of the refunded amount reaching your account. We may, at any time and without prior notice to you, modify the mechanism of processing refunds.
6. Trial Period
The Service is offered to you on an initial [email protected] day trial basis for free. In order to continue using our Service at the end of the free trial period, you will be required to sign up for one of our paid plans. You understand and accept that the free trial period is offered to you by the Company under this Agreement, and by joining the free trial period, you agree to abide by all applicable terms of this Agreement.
6. Account Termination
This Agreement will commence when you sign-up for a user account and will remain effective until you or the Company terminates your user account.
1. Account suspension or termination by the Company
We reserve the right to terminate your user account or restrict/suspend your access to your user account at any time and for any reason, including:
1.1. If your payment method was declined at the time of the automatic renewal of your subscription;
1.2. If you fail to ensure the security of your user account;
1.3. If you breach any provisions of this Agreement;
1.4. If you violate any applicable law;
1.5. If we receive instruction to terminate your account or access to the Services by any competent authority.
Although we strive to provide you with reasonable notice before suspending or terminating your user account, you understand and accept that there may be circumstances in which we may not be able to provide you with notice before terminating your user account. You acknowledge and agree that we will not be liable for any loss, damage or costs incurred by you or another person from any termination of your user account without notice. Where we terminate your user account as a result of a breach of this Agreement or for compliance with legal order/requirement, you are strictly forbidden from (1) creating a new user account; (2) accessing the Service through another user’s account; and (3) accessing the Service through any other unauthorised mechanism.
2. Account termination by the user
You may request the termination of your user account at any time by contacting us at [email protected] with the words “account termination” in the subject line. Please note that we may require you to verify your identity before terminating your user account.
3. Consequences of account termination
Once your user account has been terminated, you will lose all access to the Services after the end of your current subscription term.
Please note that if you request the termination of your user account, all your User Content will be purged, and you will not be able to retrieve it after account termination. It is solely your responsibility to ensure that you backup any and all data that you wish to access at a later stage before deleting your account.
4. Survival
All provisions of this Agreement that by their nature are intended to survive the termination of this Agreement shall survive.
7. User Content
1. The Platform enables users to add Donor information, upload bank statements, capture receipts, issue section 18A Income Tax certificates, send sms, emails and data capture forms to Donors as well as other similar functions (hereinafter “User Content”). User Content does not include any content, material, resources, software code, or the like created or owned by or licensed to the Company.
2. We do not assume any responsibility for your User Content. You hereby agree that the Company will not be responsible for any loss or damage suffered by you or any third party arising from or associated with your User Content.
3. You hereby accept that your use of the Platform and any content contained therein is entirely at your own risk, and you will be solely responsible and liable for any loss that may arise as a result therefrom.
4. You understand that all information transmitted through your user account is solely your responsibility, and the Company will not be liable for any errors or omissions in any User Content.
8. Our Intellectual Property
1. Except for your User Content, all Services, content, resources and materials made available by the Company, including but not limited to any text, graphics, logos, trademarks, audio, video, interactive features, software, and the like (hereinafter “Company Content”), are either owned by or licensed to the Company by its third-party licensors. All Company Content is subject to trademark, copyright, and other intellectual property laws of the Republic of South Africa. Nothing in this Agreement transfers any rights, title, or interest in any Company Content to you except a limited, non-exclusive, non-transferable license to use the Services for your personal and non-commercial use only.
2. Unless expressly provided otherwise, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or infringe upon any Company Content. You are expressly prohibited from removing or altering any copyright, trademark, or other proprietary notices or visual marks and logos from the Company Content. “Active Donor”, its logos, and marks are the Company’s trademarks. Any use of the Company’s trademarks for any products or Services that are not owned or operated by the Company is expressly prohibited.
3. The Company reserves all rights that are not expressly granted in this Agreement. Nothing in this Agreement shall be construed as a sale of any Company Content to you. You acknowledge and agree that any use or exploitation of Company Content in violation of this Agreement may cause us, our affiliates, or licensors an irreparable injury. The Company may terminate your account and seek remedy for breach of this provision either in equity or through injunctive or other equitable relief.
4. Feedback
We welcome our users’ feedback and input on our Services and how we can improve them. Although we love to receive feedback, we want to avoid all misunderstandings as to the nature of this communication. When you send your feedback, you understand that you are granting us the full and exclusive rights to use, copy, transmit, publish, distribute, publicly display, publicly perform, create derivative works of or otherwise exploit your feedback in any form or media now known or hereinafter developed without any restriction or compensation to you, now or ever in the future. You acknowledge and agree that your feedback will be treated as non-confidential.
9. Acceptable Use Policy
By accessing or using the Services, you expressly agree that:
1. You will only use our Services in compliance with applicable laws and regulations;
2. You will not sell, trade or transfer your user account to another person or entity without our express written authorisation;
3. You will not infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others;
4. You will not attempt to access the Services through means other than the interface provided by the Company;
5. You will not breach or circumvent any security measures used by the Company to protect the Services;
6. You will not modify, adapt, translate, or reverse engineer any portion of the Platform;
7. You will not use any robot, site search/retrieval application, or other devices to retrieve or index any portion of the Platform for the purposes of scraping content or to circumvent the technological methods adopted by us to prevent such prohibited use;
8. You will not reformat or frame any portion of the web pages without the express written consent of the Company;
9. You will not create user accounts under false or fraudulent pretences;
10. You will not misrepresent that your organisation, project or fundraiser is either sponsored or endorsed by the Company;
11. You will not use the Services for the purposes of creating competitive service;
12. You will not transmit any viruses, defects, trojan horses or other items of a destructive nature;
13. You will not disrupt or otherwise interfere with the proper working of the Service and other users’ use of the Service;
14. You will not use the Services in a manner that may impose an unreasonable or disproportionately large load on our IT infrastructure.
10. Maintenance
The Company may, at its sole discretion and without notice, deactivate or/and suspend your access to the Platform to carry out any one or more of the following: system maintenance, upgrading, testing, repairs, and other related work. Without prejudice to any other provisions of this Agreement, the Company shall not be liable to indemnify you or any third party for any loss or damage, costs, or expenses as a result of such deactivation/suspension.
11. Amendments
We reserve the right to update this Agreement at any time at our sole discretion. Where we make any changes to this Agreement, we will update the last modified date on the top of the page where this Agreement appears. Please note that if we make any amendments that materially impact your rights or obligations under this Agreement, we will notify you of such changes by email before the effective date of such amendments. Unless expressly specified otherwise, all amendments shall be effective from the date we publish the updated version on the Website. You are advised to periodically review this Agreement to familiarise yourself with any material changes. Your continued use of the Service after the effective date of any amendments shall constitute your acceptance of such amendments. If you do not agree with any amendments to this Agreement, your sole remedy is to cease using the Service.
12. Disclaimer of Warranties
THE PLATFORM AND ALL CONTENT AVAILABLE THEREIN ARE PROVIDED TO YOU ON A “VOETSTOOTS” AND “AS-AVAILABLE” BASIS. EXCLUDING THE EXPRESS WARRANTIES SPECIFIED IN THIS AGREEMENT, NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, CONTRACTORS AND AFFILIATES (COLLECTIVELY “COMPANY AND ITS OFFICERS”) MAKE ANY REPRESENTATIONS OR OFFER ANY WARRANTIES WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND ITS OFFICERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING THROUGH COURSE OF DEALING, USAGE OF TRADE, OR COURSE OF PERFORMANCE.
WE DO NOT OFFER ANY WARRANTIES THAT THE SERVICE (A) WILL BE AVAILABLE FOR USE AT ALL TIMES; (B) WILL MEET YOUR REQUIREMENTS; (C) WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE AND SECURE; OR (D) ANY DEFECTS OR ERRORS WILL BE RECTIFIED. YOU ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER YOUR USE OF THE SERVICES, AND WE DO NOT OFFER ANY WARRANTIES REGARDING THE PERFORMANCE OF OUR SERVICES OR THE RESULTS THEREOF. YOUR DECISION TO USE OUR SERVICE IS SOLELY AT YOUR OWN RISK.
13. Limitation of Liabilities
IN NO EVENT SHALL THE COMPANY AND ITS OFFICERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, AND INCIDENTAL DAMAGES OR LOSSES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, LOSS OF REVENUE, AND REPUTATIONAL LOSS), ARISING FROM OR ASSOCIATED WITH: (1) ANY FAILURE OR INTERRUPTION OF THE SERVICE; (2) ANY ACCESS OR INABILITY TO ACCESS OR USE THE SERVICE; (3) YOUR INTERACTION WITH ANY COMPANY CONTENT OR RELIANCE ON SUCH CONTENT; (4) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (5) ANY UNAUTHORISED ACCESS TO OR MODIFICATION OF YOUR INFORMATION; (6) ANY VIRUSES OR OTHER MALWARE ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICES, EVEN IF THE COMPANY AND ITS OFFICERS WERE PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
THE COMPANY AND ITS OFFICERS’ LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIM OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE USE OF THE SERVICE SHALL NOT EXCEED THE AMOUNT YOU PAID TO THE COMPANY FOR THE SERVICES IN THE THREE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. THE COMPANY MAKES NO REPRESENTATION REGARDING THE SUITABILITY OR AVAILABILITY OF THE SERVICES IN LOCATIONS OTHER THAN SOUTH AFRICA.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY HAS OFFERED ITS SERVICES, SET ITS SERVICE FEES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY, DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE COMPANY, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. THE COMPANY WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14. Governing Law and Jurisdiction
This Agreement shall be construed in accordance with the Laws of the Republic of South Africa. Any action or claims brought against the Company must be brought in the court of law with appropriate jurisdiction to rule upon the matter in the Province of Kwa-Zulu Natal.
15. Miscellaneous
1. Assignment
We may assign any of our rights or obligations to any other person, at our sole discretion, without giving any notice to you. However, you shall not assign or transfer any of your rights or obligations under this Agreement to any other party without express written consent from the Company.
2. Severance
If for any reason, any clause of this Agreement or any part of any clause is deemed to be unlawful, void, or for any reason is unenforceable, then such provision will be limited or eliminated from this Agreement only to the extent necessary and will not affect the validity and enforceability of any remaining provisions.
3. Waiver
Under no circumstances failure on our part to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy.
4. Entire Agreement
This Agreement constitutes the entire understanding between you and the Company.
5. Force Majeure
The Company will not be liable for failure to perform any of its obligations if such failure is as a result of any force majeure events, including natural disasters, war, invasion, acts of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or any interruption or any failure of electricity or server, system, computer, internet or telephone service.
