www.actionfunder.org (the “ActionFunder Platform” or “Platform”) is operated by and on behalf of The Semble Network Limited, a limited company registered in England and Wales (Company Number 05611771, registered address: 22 Wycombe End, Beaconsfield, Buckinghamshire, United Kingdom, HP9 1NB (“we”, “our”, “us”).
The ActionFunder Platform connects Non-profits seeking Grant Payments and resources (the “Non-profits”) and the organisations looking to make a difference and contribute Grant Payments to the Non-profits (the “Funders”). The Non-profits and the Funders are collectively referred to herein as the “Parties” and separately as a “Party”.
Our responsibilities are limited to facilitating an online connection between Non-profits and Funders. We are not a party to any agreement between the Non-profits and the Funders, unless explicitly stated otherwise in a written agreement. We do not provide any financial contributions to any Non-profits or Funders and we do not have any obligation or liability in respect of a failure of a Funder to fulfil its obligations towards a Non-profit (or vice versa).
The ActionFunder Commercial Terms (“Platform Terms”) govern the relationship between us, the Non-profits and the Funders in the course of the Project Arrangements.
1. Definitions and Interpretation
The terms and expressions not defined elsewhere in the Platform Terms shall have the meanings set out below:
“ActionFunder Platform” has the meaning set out in the Preamble;
“ADR Notice” has the meaning set out in clause 4.18.2;
“Anti-Corruption Law” means the Bribery Act 2010 and any applicable (a) law, statute, ordinance, rule or regulation; (b) order of any court, tribunal or any other judicial body; and (c) rule, regulation, guideline or order of any public body, or any other administrative requirement which:
(i) prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent or adviser of such person; and/or
(ii) is broadly equivalent to the provisions of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997;
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, UK;
“CEDR” has the meaning set out in clause 4.18.2;
“Confidential Information” has the meaning set out in clause 4.4.1;
“Delivery Plan” means a plan of delivery of the Project and contains relevant information, including but not limited to the amount of requested Grant Payment and a breakdown of the applicable costs;
“Fund Payment” means payment of the overall fund amount to be paid by the Funder and eventually divided into individual Grant Payments that are allocated to the applicable Non-profits for their Projects;
“Funders” has the meaning set out in the Preamble. A Funder can be, but is not limited to being, a business, a charitable foundation or a public institution;
“Fund” has the meaning set out in clause 2.1.1;
“Grant Payment” means the relevant amount to be paid by the Funder to the Non-profit as specified in the Delivery Plan;
“Grant Period” means the time period for which a specific Grant Payment is allocated to a Non-profit;
“Grant Period Deadline” is the deadline set by the Non-profits and agreed to by the Funders, or agreed to otherwise between the Parties, for the completion of a Project or certain milestones associated with a Project;
“Non-profit” has the meaning set out in the Preamble. A Non-profit can be a registered charity, a social enterprises or community businesses, or an informal unregistered Non-profit;
“Intellectual Property Rights” means rights in all technology, data, websites, information, practices, procedures, processes, methods, knowledge, techniques, development, designs, drawings, skill, experience, documents, reports, results, know-how, patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Launch” has the meaning set out in clause 2.1.1;
“Parties” or “Party” has the meaning set out in the Preamble;
“Payment Date” has the meaning set out in clause 2.2.2;
“Permitted Purpose” has the meaning set out in clause 4.6.1;
“Platform” has the meaning set out in the Preamble;
“Platform Terms” has the meaning set out in the Preamble;
“Project” means the project listed on the ActionFunder Platform being or to be undertaken by the Non-profit;
“Project Arrangement” means any arrangement or agreement from the time the Funder creates a Fund or the Non-profit creates a Project (as applicable);
“Project Assets” has the meaning set out in clause 3.7.1;
“Project Proposal” means any documents, key details, pitch, Delivery Plan, proposals, images and video or audio materials that describe a Project for which a Grant Payment is requested;
“Publishing” means launching a Project on the Platform after a Non-profit creates an online profile and adds information about the relevant Project;
“Representatives” has the meaning set out in clause 4.4.1;
“Service Charge” has the meaning set out in clause 2.2.1;
A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
Whenever the word “you” or “your” is used in any provision of the Platform Terms, the provision should logically be construed to apply to the Non-profit or Funder (as applicable) and their Representatives.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Platform Terms.
A reference to the singular includes the plural and vice versa, and a reference to any gender includes all genders.
Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
2. Your Role as a Funder
In this section 2 “you’ or ‘your” refers to a Funder.
- 2.1.1 After you complete your profile on the Platform and create your Fund (the “Fund”), following approval, it will be launched on the Platform (the “Launch”).
- 2.1.2 Once the Fund is launched, you will be committing to making a Fund Payment that will eventually be divided into smaller Grant Payments for various Projects (as applicable).
- 2.1.3 Upon Launch, your Fund will be matched with a Project or various Projects (as applicable), which meet the Fund’s criteria.
- a) If you select the suggested match, and the Non-profit accepts your invitation to be funded, then a Grant Payment will be made to the Project on your behalf from the overall Fund Payment.
- b) If you reject the suggested match, then no further action is taken
- 2.1.4 A Project remains eligible for matching with other Funders until they have received and accepted your funding invitation on the Platform.
- 2.2.1 Once you Launch the Fund, you will make a payment that will include the amount of Fund Payment and a service charge equivalent to 5 per cent of the Fund Payment (the “Service Charge”). Your payment amount will be distributed in the following manner:
- a) the Non-profits will receive 100% of any Grant Payments; and
- b) we will receive 100% of any Service Charge to cover our services, administrative costs and expenses.
- 2.2.2 Unless otherwise agreed between us, you must pay the Fund Payment and Service Charge set out in clause 2.1.1 prior to the Launch of your Fund (the “Payment Date”).
- 2.2.3 Once you Launch your Fund and the Non-profit accepts your invitation to make a Grant Payment to the matched Project, the relevant Project cannot be matched with another Funder. In light of such measures, if you are unable to make the Fund Payment by the Payment Date, then we reserve the right to terminate any applicable Project Arrangements and enable the Project to be matched with another Funder.
2.3 Coordination and Collaboration
- 2.3.1 You must read and review any contract or agreement entered into with the Non-profit and ensure that you are in agreement with the contract and generally satisfied with the Project Proposal.
- 2.3.2 We are not a party to any agreement entered into between you and the Non-profit and have no liability under such agreements and related commitments.
- 2.3.3 You will have the ability to interact with and monitor the Project you are funding. For instance, you may:
- a) read and react to the Non-profit’s updates on social media;
- b) provide feedback to the Non-profit towards the completion of the Project; or
- c) provide Ratings to the Non-profit in connection with the Project.
- 2.3.4 The Non-profits will be able to provide Ratings on your funder profile that will be publicly displayed on the ActionFunder Platform.
2.4 ActionFunder Support
- 2.4.1 We are happy to provide you with reasonable support if you have questions or issues relating to the ActionFunder Platform and Fund Payments or Grant Payments.
- 2.4.2 You acknowledge that your decision to provide any Grant Payment to a Non-profit is not contingent on our ability to conduct any diligence on the Non-profits however we shall use best endeavours to ensure that the Non-profit is suitable to be on the ActionFunder Platform which meet the Fund’s criteria. Save for where our acts or omissions where a reasonable provider providing a similar service to us would have identified an issue in the Non-profit, we do not take any responsibility for actions and omissions (and do not provide any commitments regarding the actions and obligations) of the Non-profits.
- 2.4.3 We can provide you with customised add-on services (including but not limited to conducting additional diligence on a Non-profit or a Project Proposal) catered to your specific needs at an additional charge. Please do not hesitate to contact us for more information.
3. Your Role as a Non-profit
In this section “you” or “your” refers to a Non-profit.
3.1 Providing Information and Materials:
You must provide complete, accurate and up-to-date information to us during the Project Arrangement:
- 3.1.1 While creating your Non-profit profile, you must provide complete, accurate and up-to-date information and materials, including as appropriate:
- a) your registration details, company number, legal status, registered charity number and details of any registrations with any membership bodies;
- b) your contact information, including mailing address, email address and phone number of a designated contact within your Non-profit;
- 3.1.2 While creating and Publishing the Project, you must provide complete, accurate and up-to-date information and materials, including as appropriate:
- a) your contact information, including mailing address, email address and phone number of a designated contact within your Non-profit;
- b) Project Proposal; and
- c) any other requested information or materials.
- 3.1.3 Once your Project is invited to fund, and prior to being eligible to receive a Grant Payment, you must providing complete, accurate and up-to-date information and materials, including:
- a) fields which remain incomplete in your profile; and
- b) valid Non-profit or identification documents, as requested
- 3.1.4 While the Project is in progress, you must provide complete, accurate and up-to-date information and materials, including:
- a) posting a minimum of two light-touch updates on the platform relating to the Project and its progress; and
- b) any other requested information or materials.
- 3.1.5 Within two weeks following the completion of the Project or the Grant Period Deadline (whichever is earlier), you must provide complete, accurate and up-to-date information and materials, including:
- a) a final impact survey; and
- b) any other requested information or materials.
3.2 You must inform us immediately if you become aware of anything that could reasonably be expected to have an adverse effect on us, the Grant Payment, the Project or the Funder. This includes any:
- a) changes to your legal or charitable status, changes in structure, or changes in ownership;
- b) significant delays or overspend to the Project;
- c) adverse publicity;
- d) allegations or suspicion that any part of the Grant Payment has been misused;
- e) significant changes in key Project staff or senior staff within your organisation or trustees;
- f) material change in your financial position or prospects;
- g) legal proceedings that have been started against you or that you have instigated against any other party;
- h) safeguarding incident (namely, any incident concerning a member of staff or volunteer that has led to a referral to a relevant authority or any practice in the Project that has resulted in contact with a relevant authority because of safeguarding concerns);
- i) serious incident report which has been made to any regulatory authority (e.g. Charity Commission, Registrar of Companies, the Fundraising Regulator or any NGO regulator); and/or
- j) other matter that could damage our or Funder’s reputation or bring us into disrepute.
3.3 ActionFunder Support and Participation
- 3.3.1 We are happy to help you. If you need guidance or support while creating Project Proposals, please feel free to reach out to us for additional resources.
3.4 Project Issues and Non-Compliance
- 3.4.1 You must keep us and the Funders informed in case you are encountering an issue or a problem with the Project.
- 3.4.2 If you are unable to provide us with the deliverables mentioned in clause 3.1, including but not limited to the final impact survey, within 15 days of a written notice requesting such documents, then we reserve the right to immediately terminate any Project Arrangements.
- 3.4.3 The Funder will be able to provide Ratings for the Project it is funding and such Ratings will be publicly displayed on the ActionFunder Platform and may influence your chances of obtaining another Fund Payment in the future.
- You must keep separate, accurate, detailed and complete financial records of how the Grant Payment is used (including retaining original receipts), including all records relating to the Grant Payment for at least two years following the final payment. The Recipient must maintain records of payments to third parties out of the Grant Payment and keep an asset register of all assets purchased with the Grant Payment.
3.6 Use of the Grant Payment
- 3.6.1 Unless otherwise agreed between you and the Funder, you shall use the Grant Payment only for the purposes of the Project.
- 3.6.2 You agree not to apply for duplicate Grant Payments in respect of any part of the Project or related costs that the Funder is funding in full.
- 3.6.3 You agree to abide by any written agreements made between you and Funder.
3.7 Funder rights to use Project Assets
- 3.7.1 Project Assets means any information submitted or uploaded to the Platform relating to the objective, progress and impact of the Project, including the project proposal, delivery updates and impact survey data;
- 3.7.2 When you submit or upload Project Assets, you grant the Funder the following rights to use that content:
- a) a worldwide, non-exclusive, royalty-free, transferable licence to use, reproduce, distribute, prepare derivative works of, display, and perform that user-generated content in connection with the funding provided and across different media including to promote the role of the Funder in funding the Project.
3.8 Agreements Between You and the Funder
- We are not responsible or liable for any commitment or action to be taken by you or the Funder in any Project Arrangement. We are not a party to any agreement entered into between you and the Funder and have no liability under such agreements and related commitments.
4. Mutual Responsibilities and General Provisions
Semble and the Parties each severally warrant that:
- 4.1.1 they are duly incorporated and validly existing under the laws of their jurisdiction of incorporation (as applicable);
- 4.1.2 the obligations expressed to be assumed by them in the Platform Terms and related agreements are legal, valid, binding and enforceable obligations;
- 4.1.3 their entry into and performance by them of the Platform Terms and related agreements and the transactions contemplated by it do not and will not conflict with any law or regulation applicable to them;
- 4.1.4 they have the power to perform and deliver, and have taken all necessary action to authorise their entry into, performance and delivery of, the Platform Terms and the transactions contemplated by them;
- 4.1.5 all authorisations, permits, licences, consents, approvals and registrations required to enable them lawfully to exercise their rights and comply with their obligations in these Platform Terms have been obtained or effected and are in full force and effect;
- 4.1.6 they are in compliance with all applicable laws and there is no order, decision or judgement and there is no litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a material adverse effect on their ability to perform their obligations and (to the best of their knowledge and belief) no such litigation, arbitration or administrative proceedings are about to be started or are threatened against them;
- 4.1.7 they are not in breach of any Anti-Corruption Law or undertaking, supporting or, to the extent within your reasonable control, allowing any activity which is fraudulent or defamatory;
- 4.1.8 all information they provide, including but not limited to any information in relation to the Project, Fund and Fund Payment is true and accurate to the best of their knowledge and belief; and
- 4.1.9 in respect of the Funder only, the Funder warrants that the Fund Payments made by the Funder are from legitimate sources of funds and do not constitute the proceeds of crime;
4.2 Warranties Separate
4.3 Each warranty in this Clause 4.1 shall be construed as a separate warranty and shall not be limited or restricted by reference to, or reference from, the terms of any other such warranty or any other term of the Platform Terms.
4.4 Confidentiality and Data Protection
- 4.4.1 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives or advisers (together, its “Representatives”) to you or your Representatives in connection with the Project, including information which: i) is developed by a Party in the course of carrying out the Project; ii) is specified as confidential in writing, or; iii) relates to the business, assets, affairs, donors, funders, customers, clients, or market opportunities, delivery plans, final impact surveys, operations, processes, information, know-how, or Intellectual Property Rights of the disclosing party.
4.5 The provisions of this clause shall not apply to any Confidential Information that:
- 4.5.1 is or becomes generally available to the public (other than as a result of its disclosure by a Party or their Representatives in breach of this clause); or
- 4.5.2 was available to a Party on a non-confidential basis before disclosure by the disclosing party; or
- 4.5.3 is a Project Asset as defined in 3.7.1; or
- 4.5.4 the Parties agree in writing is not confidential or may be disclosed.
4.6 A Party shall keep another Party’s Confidential Information confidential and shall not:
- 4.6.1 use such Confidential Information except for the purpose of exercising or performing a Party’s rights and obligations in relation to the Project (“Permitted Purpose”); or
- 4.6.2 disclose such Confidential Information in whole or in part to any third party, except as necessary for the Permitted Purpose, provided a Party informs such Representatives of the confidential nature of the Confidential Information before disclosure and require them to comply with the confidentiality obligations of the Platform Terms.
4.7 On termination or completion of the Project, unless such materials are needed by a Party to perform their obligations under the Project (and only until the end of such time), the Party shall:
- 4.7.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information; and
- 4.7.2 erase all the other Party’s Confidential Information from computer and communications systems and devices used by that Party, including such systems and data storage services provided by third parties (to the extent technically practicable).
4.8 Each Party shall be responsible for complying with applicable data protection laws in respect of any personal data that it processes in connection with the Project.
4.9 Intellectual Property
- 4.9.1 Each Party remains the owner of any Intellectual Property Rights in Project Proposals, delivery plans, final impact surveys, information, reports, technology, know-how or other materials owned by that Party before the start date, or developed by it during the Project Arrangements.
- 4.9.2 The Platform Terms do not transfer or assign any right, title and interest in the Intellectual Property Rights to any Party who is not already the owner of such rights.
4.10 Press Releases
If a Party publishes any press release about us, please notify us in writing and include a copy of the press release with the Party’s written notification within five (5) Business Days of publishing the press release. For purposes of this clause, a press release does not include a post on a Party’s own social media.
- 4.11.1 We reserve the right to terminate any Project Arrangement in accordance with clause 2.2.3 and clause 3.4.2.
- 4.11.2 We may terminate any Project Arrangement with immediate effect by giving written notice to a Party:
- a) if that Party commits a material breach of any term of the Platform Terms or Project Arrangement which breach is irremediable or (if such breach is remediable) the Party fails fail to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
- b) if a Party repeatedly breaches any of the terms of the Project Arrangement or Platform Terms in such a manner as to reasonably justify the opinion that the Party’s conduct is inconsistent with the Party having the intention or ability to give effect to the Project Arrangement or Platform Terms; or
- c) if any warranty given by you in clause 4.1 is found to be untrue or misleading.
- 4.11.3 For the purposes of clause 4.11.2, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the aggrieved party would otherwise derive from a substantial portion of the Project Arrangement or Platform Terms.
- 4.11.4 The termination of this Project Arrangement or Platform Terms shall not affect the continuing rights and obligations of the Parties under clause 4.1 (Warranties), clause 4.4 (Confidentiality), clause 4.9 (Intellectual Property), clause 4.12 (Limitation of Liability), clause 4.13 (Indemnity), clause 4.17 (Applicable Law and Jurisdiction), clause 4.18 (Dispute Resolution) and clause 4.21 (Notices) or under any other provision of the Platform Terms which is expressed to survive termination or which is required to give effect to such termination or the consequences of such termination.
4.12 Limitation of Liability
- 4.12.1 To the extent permitted by applicable law, we accept no liability for any consequences, whether direct or indirect, that may arise from the use of Platform or the Project Arrangements, including but not limited to the selection of the Funder, selection of the Non-profit, selection of the Project, running of the Project, the use of the Fund Payment or Grant Payment, or from suspension or termination of the Fund Payment or Grant Payment.
- 4.12.2 To the extent permitted by applicable law, and save for losses suffered by the Funder pursuant to clause 2.4.2, we exclude all warranties, representations or other terms and conditions, which may apply to the Platform Terms or any content in it whether express or implied.
- 4.13.1 You shall indemnify us and hold us harmless against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with your misuse of the ActionFunder Platform or your omissions related to the Fund Payment or Grant Payment and Project Arrangements.
4.14 Third Party Rights
A person who is not a party to the Platform Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the Platform Terms.
4.15 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of a Party of any right or remedy under the Platform Terms shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in the Platform Terms are cumulative and not exclusive of any rights or remedies provided by law.
4.16 Further Assurance
The Parties agree that they will co-operate fully to do all such further acts and things and execute any further documents as may be reasonably necessary to give full effect to the arrangements contemplated by the Platform Terms.
4.17 Applicable Law and Jurisdiction
The Platform Terms and any non-contractual obligations arising out of or in connection with them shall be governed by the laws of England and Wales.
The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Platform Terms or their subject matter or formation (including non-contractual disputes or claims).
4.18 Dispute Resolution
- 4.18.1 If any dispute arises in connection with the Platform Terms, the Parties shall, in the first instance, use reasonable endeavours to resolve the dispute by way of negotiation between themselves within a period of fifteen (15) Business Days following the giving of notice by one Party to the other Party that a Dispute has arisen prior to commencing the dispute settlement mechanism set out in clause 4.18.2.
- 4.18.2 After the expiry of the period specified in clause 4.18.1, if the Parties are unable to resolve the dispute by negotiation, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator will be nominated by CEDR. To initiate the mediation a Party must give notice in writing (the “ADR Notice”) to the other Party to the dispute requesting a mediation. A copy of the request should be sent to CEDR.
- 4.18.3 The mediation will start not later than fifteen (15) days (or such other period as the parties may agree in writing) after the date of the ADR Notice. The commencement of a mediation will not prevent the Parties commencing or continuing court proceedings.
4.19 No Partnership or Agency
Nothing in the Platform Terms is intended to, or shall be deemed to, establish any legal partnership or joint venture between any of the Parties or constitute any Party as the agent of another Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
We shall not be in breach of the Platform Terms nor liable for delay in performing, or failure to perform, any of our obligations under the Platform Terms if such delay or failure results from events, circumstances or causes beyond our reasonable control. In such circumstances we shall be entitled to a reasonable extension of the time for performing such obligations or we may terminate our agreement with you under the Platform Terms by giving ten (10) Business Days’ written notice to you.
Any notice given to a Party in connection with the Platform Terms shall be in writing and sent by email to the following addresses:
- a) if to us: (Subject: Platform Terms Notice); or
- b) if to you: at the email address you provide to us while setting up your user account (Subject: Platform Terms Notice); and
shall be deemed to have been received when the recipient confirms receipt of the email or at 9.00 am on the next Business Day after transmission, whichever occurs earlier.
4.22 Inadequacy of Damages
Without prejudice to any other rights or remedies that a Party (First Party) may have, the other Party (Other Party) acknowledges and agrees that damages alone may not be an adequate remedy for any breach of the Platform Terms by the Other Party. Accordingly, the First Party may be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the Platform Terms.
4.23 Partial Invalidity
If any provision or part-provision of the Platform Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Platform Terms.
- 4.24.1 A waiver of any right or remedy under the Platform Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
- 4.24.2 A failure or delay by a Party to exercise any right or remedy provided under the Platform Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Platform Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.