TERMS

These school fundraising terms (Terms), together with the Fundraising Form (defined in clause 1), set out the agreement (Agreement) under the terms of which DIY Fundraising Pty Ltd (ACN: 641 654 471) (Colour Frenzy) will provide the Colour Frenzy fun run school Fundraising Services (defined in clause 2) to the school which you represent (School).

  1. FUNDRAISING FORM, THIS AGREEMENT

    (a) These Terms will apply to the School’s dealings with Colour Frenzy and the provision of Fundraising Services to the School by Colour Frenzy in accordance with the details set out in the cover page titled fundraising form (Fundraising Form). These Terms will also apply to any documents referenced in the Fundraising Form and will also form part of this
    Agreement.
    (b) The School will be taken to have accepted this Agreement if the School orders, accepts or pays for any Fundraising Services provided by Colour Frenzy.
    (c) In the event of any inconsistency between these Terms and any Fundraising Form, the clauses of these Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” set out in the Fundraising Form will prevail over these Terms to the
    extent of any inconsistency.
  2. FUNDRAISING SERVICES

    2.1. PROVISION OF FUNDRAISING SERVICES
    (a) In consideration for the payment of the fees set out in the Fundraising Form (Fees), Colour Frenzy will provide the School with the services set out in a Fundraising Form (Fundraising Services)
    (b) Unless otherwise agreed, Colour Frenzy may, in its discretion:
    (i) not commence work on any Fundraising Services until the School has paid any Fees or deposit payable in respect of such Fundraising Services; and
    (ii) withhold delivery of Fundraising Services until the School has paid an invoice in respect of such Fundraising Services.

    2.2. PACKAGES
    (a) The School may select from several different Fundraising Services packages offered by Colour Frenzy.
    (b) All packages include materials for pre-event fundraising and materials for the Colour Frenzy fun run (Fundraising Materials).
    (c) Packages will differ on:
    (i) the quantity and type of Fundraising Materials provided; and
    (ii) whether the School has selected a package that includes the organisation and operation of the Colour Frenzy fun run (Fun Run) by Colour Frenzy.

    2.3. MATERIALS
    (a) Colour Frenzy will provide the Fundraising Materials set out in the Fundraising Form.
    (b) The quantity and type of the Fundraising Materials will depend on:
    (i) the number of students participating in the Fun Run; and
    (ii) the Fundraising Services package selected by the School.
    (c) The Fundraising Materials will include both materials and items to be used:
    (i) prior to the Fun Run, for example, sponsorship forms and promotional posters; and
    (ii) during the Fun Run, for example, pre-packaged colour powder and award certificates.
    (d) Fundraising Materials are to be used only in accordance with the directions of Colour Frenzy’s or the manufacturer’s instructions.

    2.4. FUN RUN
    (a) If the package selected by the School and as set out in the Fundraising Form includes the organisation and operation of the Fun Run at the location (Site) on the agreed date and time (Fun Run Date) then Colour Frenzy will:
    (i) attend the site prior to the Fun Run Date;
    (ii) organise and set up the equipment and materials required to operate the Fun Run at the Site;
    (iii) during the Fun Run, organise the participants involvement in the Fun Run;
    (iv) organise any activities (if any) following the Fun Run; and
    (v) pack up and remove all of Colour Frenzy’s equipment and materials from the site.
    (b) Operating a school fundraiser can involve many hundreds of participants, both students and adults, and although Colour Frenzy will ensure to organise and operate the Fun Run with due care and skill, Colour Frenzy may require assistance from the School, for example to record participants and organise participants into groups. Accordingly, the
    School agrees to any reasonable requests for assistance by Colour Frenzy to operate the Fun Run.

    2.5. SITE
    (a) If the package selected by the School and as set out in the Fundraising Form includes the organisation and operation of the Fun Run by Colour Frenzy, then Colour Frenzy will require access to the Site prior to the Fun Run Date.
    (b) The School must obtain any licences, permits and authorisations required to operate the Fun Run at the Site prior to the Fun Run Date.
    (c) Following the Fun Run, Colour Frenzy will remove all items of equipment and materials that belong to Colour Frenzy. Colour Frenzy may assist in any cleaning up or the packing up of items that do not belong to Colour Frenzy however, Colour Frenzy is under no obligation to do so and the School agrees that it is the School’s sole responsibility to ensure the Site is cleaned and restored to the standard required.
    (d) The School agrees that it is the School’s sole responsibility to satisfy itself with the suitability and appropriateness of the Site for the Fun Run to take place on the Fun Run Date. Colour Frenzy makes not representations, warranties or any other statements about the suitability or appropriateness of any location or site for the Fun Run.

  3. SCHOOL OBLIGATIONS

    3.1. PROVIDE ASSISTANCE
    The School agrees to:
    (a) provide Colour Frenzy with all information and assistance reasonably required for Colour Frenzy to perform the Fundraising Services; and
    (b) liaise with Colour Frenzy as it reasonably requests for the purpose of enabling Colour Frenzy to provide the Fundraising Services.

    3.2. COMPLIANCE WITH LAWS
    The School agrees that it will:
    (a) comply with any applicable laws and regulations (including but not limited to workplace health and safety laws and any COVID requirements); and
    (b) comply with any applicable policies, guidelines and directions relevant to the provision of the Fundraising Services to the School.

    3.3. SAFETY
    In providing the Fundraising Services, Colour Frenzy will ensure to provide them with all due care and skill. Physical activities, however, always involves risk and the large number of participants means Colour Frenzy is unable to guarantee the safety of very participant. Accordingly, the School agrees to:
    (a) advise all participants prior to engaging in the Fun Run of the risks involved and to prevent their participation if they do not accept the risks;
    (b) comply with and obtain the participants’ compliance with any safety instructions from Colour Frenzy;
    (c) to provide any reasonable assistance as required by Colour Frenzy to implement any safety precautions;
    (d) satisfy itself with the safety precautions implemented; and
    (e) ensure that any other safety precautions that it deeds necessary are implement.

    3.4. OBLIGATIONS AND WARRANTIES
    The School warrants that:
    (a) there are no legal restrictions preventing the School from agreeing to these Terms;
    (b) the information the School provides to Colour Frenzy is true, correct and complete;
    (c) the School are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at the School’s cost, and for providing Colour Frenzy with the necessary consents, licences and permissions; and
    (d) the School consent to the use of the School’s name and image in relation to the Services in a way which may identify the School.
    3.5. ASSUMPTION OF RISK:
    (a) All suggestions and comments relating to the use of equipment and any instructions shown in any video and other materials are required to be performed or adhered to by the School. The School acknowledges that it will participate in the School at its own risk.
    (b) The School acknowledges that participating in the Fun Run or any related exercises and activities may involve a risk of serious injury or even death from various causes including: overexertion, dehydration, equipment failure and accidents with equipment and surroundings.
    (c) It is the School’s responsibility to ensure that by participants in the Fun Run will not exceed their limits while performing such activity, and you will select the appropriate level of class for the participants skills and abilities, as well as any mental or physical conditions and/or limitations they may have.
    (d) The School recognises the difficulties associated with participants attending a Fun Run and attest that all participants are physically fit to participate safely in the activity and that a qualified medical practitioner has not advised the School otherwise.
    (e) In the event that the School becomes aware of any medical conditions, injuries or impairments that may be detrimental to a participant’s health, they must ensure that that participant does not attend the Fun Run.

  4. PAYMENT

    4.1. FEES
    The School must pay ensure that all participants log onto Colour Frenzy donations platform and make the donations before being allowed to participate in the Fun Run. Within 14 days after the Fun Run Colour Frenzy will pay to the School all fundraising money received from donations less the Fees set out in the Fundraising Form.

    4.2. SHARING OF RAISED FUNDS
    (a) The School will advise Colour Frenzy of the total amount of money raised by the School in connection with the Fun Run, including any pre-event donations and money collected during the Fun Run (Raised Funds) following 14 days of the Fun Run Date.
    (b) The Fees payable for the Fundraising Services will be calculated as a percentage of the Raised Funds as set out in the Fundraising Form. Colour Frenzy will then issue an invoice to the School for the Fees.
    (c) If the Fees payable to Colour Frenzy is less than the cost of the Fundraising Materials as set out in the Fundraising Form then the School agrees to pay the balance of the Fundraising Materials cost to Colour Frenzy.

    4.3. INVOICES
    Unless otherwise agreed in the Fundraising Form payment must be made by the time specified in Colour Frenzy’s invoice.

    4.4. PAYMENT METHOD
    The School must pay Fees using the fee payment method specified in the invoice.

    4.5. GST
    Unless otherwise indicated, amounts stated in a Fundraising Form do not include GST. In relation to any GST payable for a taxable supply by Colour Frenzy, the School must pay the GST subject to Colour Frenzy providing a tax invoice.

    4.6. CARD SURCHARGES
    Colour Frenzy reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).

  5. PROMOTION

    5.1. USE OF PHOTOS AND VIDEOS
    For the purposes of promoting Colour Frenzy generally, the Colour Frenzy fun run and the Colour Frenzy school fundraising services, Colour Frenzy may use photos and videos captured by Colour Frenzy prior to, during and immediately following the Fun Run and in connection with the provision of the Fundraising Services, as well as any written testimonials and comments provided to Colour Frenzy in connection with the Fundraising Services. The School agrees to Colour Frenzy using
    such material and grant a royalty free, non-exclusive, non-transferable, worldwide and irrevocable license to use this material.

    5.2. COMPLIANCE WITH LAWS
    Any material used for promotional purposes will comply with:
    (a) all applicable laws in connection with the use of images, videos and other promotional materials that include children and where relevant, public buildings and areas such as schools and fields; and
    (b) Colour Frenzy’s privacy policy which can be provided on request.

  6. THIRD PARTY GOODS AND FUNDRAISING SERVICES

    (a) Any Fundraising Service that requires Colour Frenzy to acquire goods and services supplied by a third party on behalf of the School may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
    (b) The School agrees to any Third Party Terms applicable to any goods and Fundraising Services supplied by a third party that the School or Service Provider acquires as part of the Fundraising Services and Colour Frenzy will not be liable for any loss or damage suffered by the School in connection with such Third Party Terms.
  7. CONFIDENTIALITY
    (a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior
    written consent.
    (b) This clause 7 does not apply to:
    (i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
    (ii) information required to be disclosed by any law; or
    (iii) information disclosed by Colour Frenzy to its subcontractors, employees or agents for the purposes of performing the Fundraising Services or its obligations under this Agreement.
    (c) For the purposes of this Agreement, “Confidential Information” means information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
  8. INTELLECTUAL PROPERTY

    (a) Colour Frenzy retains all intellectual property rights in the Fundraising Services including the Fundraising Materials and the Fun Run as well as Colour Frenzy generally, the Colour Frenzy fun run and the Colour Frenzy school fundraising services (Colour Frenzy IP), or those rights are owned by a third party. The School must not attempt to copy, reproduce, manufacture or otherwise commercialise the Colour Frenzy IP.
    (b) In this clause 9, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms in Australia and throughout the world.
  9. EXCLUSION OF WARRANTIES

    (a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement (including the Fundraising Form) are excluded.
    (b) Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the School may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the Fundraising Services provided.
  10. LIABILITY

    (a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of Colour Frenzy to the School in respect of loss or damage sustained by the School under or in connection with this agreement is limited to the total Fees paid to Colour Frenzy by the School as at the date of the first event giving rise to the relevant liability.
    (b) (Indemnity) The School agrees at all times to indemnify and hold harmless Colour Frenzy and its officers, employees and agents (“those indemnified“) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the School or the School’s officers’, employees’ or agents’:
    (i) breach of any term of this agreement; or
    (ii) negligent, fraudulent or criminal act or omission.
    (c) (Consequential loss) Colour Frenzy will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any goods or services (including the Fundraising Services) provided by Colour Frenzy, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
  11. SUBCONTRACTING

    Colour Frenzy may subcontract any aspect of providing the Fundraising Services and the School hereby consents to such subcontracting.
  12. TERMINATION

    12.1. TERMINATION FOR CONVENIENCE
    Either party may terminate this Agreement for convenience at any time by providing 1 months’ written notice to the other party.

    12.2. TERMINATION FOR CAUSE
    Either party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party is in breach of this Agreement and either:
    (a) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
    (b) that breach is not capable of remedy.

    12.3. EFFECT OF TERMINATION
    Upon termination of this Agreement:
    (a) Colour Frenzy will:
    (i) refund any amounts paid by the School for goods or services (including the Fundraising Services) not provided as at the date of termination;
    (ii) Contact the donor’s and ask if they want their donations returned or whether they will be happy for the donations to go to school as per the terms of this Agreement;

    (b) the School must pay all amounts owed for goods or services (including the Fundraising
    Services) already provided as at the date of termination;
    (c) each party must return all property of other parties to those respective parties;
    (d) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
    (e) no rights, liabilities or remedies of any party will be invalidated by the termination.

    12.4. SURVIVAL
    Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.

  13. DISPUTE RESOLUTION
    (a) A party claiming that a dispute has arisen under or in connection with this agreement (complainant) must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless the complainant has complied with the requirements of this clause.
    (b) The complainant must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
    (c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.
    (d) If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may refer the matter to a mediator.
    (e) If the parties cannot agree on a mediator within a further 14 days, the complainant will refer the matter to the President to the Law Society of Queensland to appoint a mediator. The time and place for mediation will be determined by the mediator. The parties must attend the mediation, in good faith, to seek to resolve the dispute through mediation or if directed by the mediator through any other alternative dispute resolution processes.
    (f) Any attempts made by the parties to resolve a dispute in accordance with this clause shall be without prejudice to any other rights or entitlements of the parties under this Agreement, by law or in equity.
  14. NOTICES

    (a) A notice or other communication to a party under this agreement must be:
    (i) in writing and in English; and
    (ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
    (b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
    (i) 24 hours after the email was sent; or
    (ii) when replied to by the other party, whichever is earlier.
  15. GENERAL

    15.1. GOVERNING LAW AND JURISDICTION
    This Agreement is governed by the law applying in Queensland. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in
    an inconvenient forum.

    15.2. AMENDMENTS
    This Agreement may only be amended in accordance with a written agreement between the parties.

    15.3. WAIVER
    No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

    15.4. SEVERANCE
    Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.

    15.5. JOINT AND SEVERAL LIABILITY
    An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

    15.6. ASSIGNMENT
    A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

    15.7. COUNTERPARTS
    This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.

    15.8. LEGAL ADVICE
    Each party must obtain its own independent legal advice and pay its own legal costs and expenses in relation to the negotiation, preparation and execution of this Agreement and any variation or replacement of this Agreement.

    15.9. COSTS
    Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.

    15.10. ENTIRE AGREEMENT
    This Agreement embodies the entire Agreement between the parties and supersedes any prior
    negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.

    15.11. INTERPRETATION
    (a) (singular and plural) words in the singular includes the plural (and vice versa);
    (b) (gender) words indicating a gender includes the corresponding words of any other gender;
    (c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
    (d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
    (e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
    (f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all
    schedules, exhibits, attachments and annexures to it;
    (g) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
    (h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
    (i) (includes) the word “includes” and similar words in any form is not a word of limitation; and
    (j) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.