KindLink Foundation Terms of Service for Donors – Payroll Giving

Version 1.0
Last revised: March 2019

These terms of service describe the payroll giving service that the KindLink Foundation provides to Clients at www.kindlink.com and your rights and obligations when you choose the KindLink Foundation as your Payroll Giving Agency. You confirm and promise to us that you have the right, authority, and capacity to enter into these Terms on behalf of the Client. Please read these terms carefully, as by clicking through these terms and conditions you are entering the Client into a binding legal agreement with the Kindlink Foundation on the terms set out in this document. Capitalised terms used in this document have the meanings set out in the Definitions Schedule at the end.

The KindLink Foundation is an approved Payroll Giving Agency, reference no. PR52. Please see here for the HMRC list of approved agencies.

Service Schedule

1.Information about the KindLink Foundation

The KindLink Foundation is a charitable incorporated organisation, a registered charity in England and Wales (No. 1177210) whose principle office is at 30 Amott Road, London SE15 4JD.

2.Nature of the KindLink Foundation

  1. The KindLink Payroll Giving Scheme is a payroll deduction scheme established by the KindLink Foundation in accordance with the Regulations and with the requirements of HMRC for such schemes.
  2. The KindLink Foundation is approved by HMRC as a Payroll Giving Agency.
  3. In accordance with the Regulations, amounts received by the KindLink Foundation as part of the KindLink Payroll Giving cannot be returned either to the Client or to a Participating Employee, irrespective of whether or not the amounts were paid or transferred to the KindLink Foundation by mistake.
  4. For the avoidance of doubt, the KindLink Foundation is a charity registered with the Charity Commission and, as such, can itself be a Nominated Recipient if a Participating Employee requests that their Employee Donations be distributed to the KindLink Foundation under restricted circumstances as further set out in application legislation and Regulations.
  5. For the avoidance of doubt, the KindLink Foundation shall not under any circumstances retain or appropriate any monies for itself as its unrestricted funds, other than by deducting the fees agreed with the Client or when it is itself a Nominated Recipient as described in clause 2.4.

3.Term and Termination

  1. Save in respect of such matters as are prescribed in the Regulations, the KindLink Foundation may vary the terms of this Agreement by providing at least 7 days’ notice to the Client. The Client’s continued use of the KindLink Foundation Payroll Giving Scheme after the time that the change is stated in such notice to take effect shall constitute the Client’s acceptance of such variation.
  2. In accordance with the Regulations, where the Client has, without reasonable excuse, failed to comply with the KindLink Foundation Payroll Giving Scheme in accordance with this Agreement, the KindLink Foundation shall be entitled to terminate the KindLink Foundation Payroll Giving Scheme immediately on notice to the Client.
  3. The KindLink Foundation Payroll Giving Scheme provided to the Client and all Participating Employees will cease to operate if the KindLink Foundation Payroll Giving Scheme is terminated pursuant to these terms.

4.The KindLink Foundation’s obligations

  1. The KindLink Foundation shall notify the Client within a reasonable time if it becomes aware that is has lost, or is reasonably likely to lose, its status as an HMRC-approved Payroll Giving Agency such that it is no longer able to, or is reasonably likely to no longer be able to, operate a payroll giving scheme in the manner described in clause 2.1.
  2. The KindLink Foundation shall:
    1. appoint the Client as its agent for the purposes of holding all Employee Donations, in respect of the period from which the Client makes the Employee Donation until this is received by the KindLink Foundation;
    2. make available to the Client the Donor Instruction Form by way of the KindLink online giving platform, operated by KindLink Limited, pursuant to separate terms and conditions;
    3. accept Employee Donations from the Client and distribute them, less any applicable fees, contributions and expenses, to Nominated Recipients or as otherwise set out in this Service Schedule;  
    4. provide written receipts to the Client for Employee Donations received by the KindLink Foundation, within a reasonable period following receipt of a request for the same from the Client;  
    5. provide to a Participating Employee, at the end of the Tax Year in which the Participating Employee has requested the same, a certificate stating:
      • the Employee Donations that they have made as part of the KindLink Foundation Payroll Giving Scheme during that Tax Year;  
      • the distributions made by the KindLink Foundation in respect of their Employee Donations during that Tax Year; and
      • the maximum length of time that elapsed during that Tax Year between receipt of their Employee Donation and distribution of the same;  
    6. provide to HMRC such returns as are required by the Regulations;
    7. keep, and produce to HMRC, all such other records and documents as are required by the Regulations; and
    8. provide to HMRC such explanation as required by the Regulations in respect of any Employee Donation that has not been distributed to a Nominated Recipient or as otherwise set out in this Service Schedule, within:
      • 35 (thirty-five) days of the KindLink Foundation receiving the Employee Donation in question from the Client, provided KindLink has also received on or before that day sufficient information from the Participating Employee in question to enable a distribution to be made in accordance with clause 4.2.3 and has paid the Nominated Recipient at any time in the 12 months preceding the KindLink Foundation’s receipt of the Employee Donation; or
      • in any other case, the period of 60 (sixty) days of the later of:
        • receiving the Employee Donation in question from the Client; and
        • receiving sufficient information from the Participating Employee in question to enable a distribution to be made in accordance with clause 4.2.3.

5.The KindLink Foundation’s authority to distribute

Notwithstanding the provisions of clause 4:
  1. the KindLink Foundation shall be entitled to deduct from amounts received as part of the KindLink Foundation Payroll Giving Scheme (including, but not limited to, Employee Donations) the service  fees, equalling 1.5% of each donation processed;
  2. where the KindLink Foundation is unable, for whatever reason, to make a distribution to a Nominated Recipient, the KindLink Foundation may:
    1. make reasonable attempts to contact the Participating Employee to request the nomination of an alternative Nominated Recipient; and
    2. where no such nomination is received, pay such amounts to a third party recipient that is eligible to receive such amounts under the Regulations that the KindLink Foundation reasonably believes to have a similar aim or cause to those of the Nominated Recipient;
  3. where the provisions of clause 5.2.2 applies, the KindLink Foundation will make reasonable attempts to notify the Participating Employee in question.

6.Client obligations and rights

  1. The Client shall:
    1. hold all Employee Donations and giving data, books and records as agent for the KindLink Foundation;
    2. deduct the Employee Donations in such amounts as the Participating Employee may authorise and will pay the aggregate of such Employee Donations to the KindLink Foundation within 14 (fourteen) days of the end of the Income Tax Month in which such Employee Donations were made;
    3. as required by the KindLink Foundation, provide the KindLink Foundation with reports in a format which the KindLink Foundation may specify from time to time, listing Participating Employees, their total Employee Donations and, if appropriate, any additional funds to be used to match Employee Donations (such report being commonly referred to as a Donor Analysis Report);
    4. if the employment of a Participating Employee ceases, supply them with a statement of the total Employee Donations made in the current Tax Year;
    5. indemnify the KindLink Foundation and hold the KindLink Foundation harmless from and against all claims and all loss, liabilities (including depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the KindLink Foundation as a result of or in connection with any breach by the Client of their obligations in respect of the KindLink Foundation Payroll Giving Scheme or any distribution made by the KindLink Foundation in accordance with information provided to the KindLink Foundation by the Client;
    6. ensure that each Participating Employee completes and returns to it an appropriate Donor Instruction Form, notifies the KindLink Foundation of the content of such form and keeps the KindLink Foundation promptly updated in respect of any changes in, or made by a Participating Employee to, their Donor Instruction Form information from time to time; and
    7. keep and produce all records and documents required to be kept by the Client under the Regulations, which include, without limitation:
      1. a copy of the Client’s contract with the KindLink Foundation
      2. a copy of the Participating Employee’s authority to make deductions for the purposes of Payroll Giving
      3. details of payments made by each Participating Employee
      4. receipts provided by the KindLink Foundation.
  2. The Client may:
    1. stipulate a minimum Employee Donation per Participating Employee provided that this is not less than any minimum required by the KindLink Foundation from time to time;
    2. direct when, during any Tax Year, the Employees may become Participating Employees and when they may amend their Employee Donations, but shall permit Participating Employees to withdraw from the KindLink Foundation Payroll Giving Scheme at any time upon notice not exceeding one calendar month.
  3. The Client hereby represents, warrants and undertakes to the KindLink Foundation that it has completed satisfactory checks on all of its Participating Employees sufficient to verify their identity, and to screen this against applicable sanctions registers, to the standard necessary for the purposes of UK law and regulation (including, without limitation, law and regulation relating to the prevention of money laundering and terrorist financing and relating to establishing their right to work in the UK). This representation, warranty and undertaking shall be deemed to be repeated on each occasion that the Client allows a Participating Employee to enrol in the KindLink Foundation Payroll Giving Scheme, and on each occasion that the Client notifies the KindLink Foundation of any change in a Participating Employee’s information.
  4. Where the Client wishes to use the services of a third party in relation to processing of payroll (including, but not limited to, a payroll processing agent, professional fundraising organisation or technology payroll service provider) and hasn’t elected to do so on an application form, the Client must first complete and submit the Appointment of Third Party Form.
  5. The Client acknowledges that Donors will provide giving instructions to the KindLink Foundation by way of the KindLink online giving platform, operated by KindLink Limited.

7.Matching

  1. The Client may calculate and send to the KindLink Foundation additional funds to be used to match Employee Donations, on the basis set out on the KindLink Foundation Payroll Giving Scheme Application Form or the Payroll Registration Form in question. These funds must be the Client’s own funds, and not those of any third party.
  2. Following acceptance by the KindLink Foundation of the KindLink Foundation Payroll Giving Scheme Application Form or the Payroll Registration Form referred to in clause 7.1 above, the KindLink Foundation shall accept from the Client any additional funds to be used to match Employee Donations and shall distribute them to the Nominated Recipient specified by the relevant Participating Employee or otherwise in accordance with this Agreement.
  3. Amounts received as part of matching cannot be returned either to the Client or to a Participating Employee if the KindLink Foundation has in good faith distributed any such amounts to a Nominated Recipient or as otherwise set out in this Service Schedule, irrespective of whether or not the amounts were paid or transferred to the KindLink Foundation by mistake and irrespective of whether or not the Client or the Participating Employee was aware of any such distribution.

8.Participating Employees

  1. An employee of the Client becomes a Participating Employee by authorising the Client to make Employee Donations by way of the KindLink Foundation Donor (Employee) Instruction Form made available by the KindLink Foundation to the Client from time to time, available on the KindLink online giving platform.
  2. The Client shall ensure that every Participating Employee is made aware of the terms of this Agreement in so far as it relates to them.
  3. Employee Donations may not be used to satisfy any contractual obligation of a Participating Employee to a third party or in payment for services rendered or goods supplied by any third party.
  4. Employee Donations paid to the KindLink Foundation are not returnable to a Participating Employee or payable to any third party that returns a personal benefit in any way to the Participating Employee or someone connected to the Participating Employee.

9.Data Protection

  1. For the purpose of processing Payroll Giving donations pursuant to this Agreement (the “Agreed Purpose”), the Client shall share with the KindLink Foundation the following personal data about the Participating Employee: (i) name, (ii) title, (iii) postal and/or email address (the “Shared Personal Data”).
  2. For the purposes of this this clause 9, the Client and KindLink Foundation acknowledge that in respect of the Shared Personal Data processed pursuant to this Agreement, they are each an independent controller.
  3. Client and the KindLink Foundation shall each comply with their respective obligations under the Data Protection Legislation when processing Shared Personal Data. Any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
  4. The Client represents and warrants:
    1. it has all necessary notices and consents in place to enable the lawful transfer of the Shared Personal Data from Client to the KindLink Foundation for the Agreed Purpose and Client can demonstrate on request such notices and consents;
    2. the transfer of the Shared Personal Data from the Client to the KindLink Foundation is in compliance with Data Protection Legislation;
  5. it shall implement and maintain appropriate technical and organisational measures to protect the Shared Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed. Such measures shall include but not be limited to the delivery of the Shared Personal Data to the KindLink Foundation via HTTPS and TLS enabled channels and the encryption of the Shared Personal Data with common protocols agreed with the KindLink Foundation; and
    1. the Shared Personal Data is complete, accurate and up-to-date.
  6. If Client or KindLink Foundation:
    1. receives any correspondence, enquiry, request, complaint or claim from a Participating Employee, regulator or other person relating to its processing of the Shared Personal Data, it will (to the extent permitted by applicable law) promptly inform the other party (and keep that party informed) and provide full details of the same and the parties shall co-operate in relation to the same in good faith; and
    2. is subject to any investigation, complaint or action by a regulator regarding its compliance with Data Protection Legislation generally, it will (to the extent permitted by applicable law) promptly inform the other party (and keep that party informed).
  7. Each of the Client and the KindLink Foundation shall maintain and complete accurate records and information to demonstrate its compliance with this clause 9.

10.Limitation of liability

  1. The KindLink Foundation does not, and nothing in these Terms shall act to, exclude or limit our liability for death or personal injury resulting from our negligence, fraud or any other liability which may not be excluded or limited by applicable law.
  2. To the maximum extent permitted by law, in no event shall the KindLink Foundation or its partners be liable to you or any third party for any loss of profits, loss of data, loss of business opportunity, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the KindLink online giving platform, even if you have been advised of the possibility of such damages.
  3. The KindLink Foundation shall not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the KindLink online giving platform or to your downloading of any content on it, or on any website linked to it.
  4. The KindLink Foundation assumes no responsibility for the content of websites linked on our site. Such links should not be interpreted as endorsement by the KindLink Foundation of those linked websites. The KindLink Foundation shall not be liable for any loss or damage that may arise from your use of them.

11.Records and confidentiality

  1. Each of the parties shall ensure that they retain records as required by applicable laws.
  2. During the term of your use of the Service and for a period of three (3) years thereafter, the parties shall treat as strictly confidential all information about the other which has been acquired as a result of the use of the Service and which is not in the public domain. No party shall use or disclose to any third party such information belonging to the other party without that party's prior written consent. This Section shall survive termination of the Agreement.
  3. Notwithstanding clause 10.1, where either party is required to disclose information relating to the KindLink Foundation Payroll Giving Scheme by applicable local law or regulatory or governmental body, Client must notify the KindLink Foundation in advance of the disclosure (to the extent permitted by law), and must only disclose that part of the confidential information that is relevant to the request.

12.Notices

For the purposes of this Agreement, all notices, invoices and other communications shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited by post as certified or registered mail with postage prepaid, addressed to the party to be notified at such party's address as is recorded in the KindLink online giving platform, and subsequently modified by written notice.

Definitions Schedule

For the purposes of this Agreement the capitalised terms shall have the meanings set forth below:

Agreement means, in respect of the Services described in this Service Schedule, together: the KindLink Terms of Service for Donors, this Service Schedule, and the Forms.

Client, you, or your means your organisation, where your company has engaged KindLink Foundation pursuant to these Agreement to participate in the KindLink Payroll Giving Scheme.

Controller, data subject, personal data, processing and appropriate technical and organisational measures have the meaning as set out in Data Protection Legislation in force at the time.

Data Protection Legislationmeans all legislation and regulatory requirements in force from time to time relating to the use of personal data, including without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).

Donor means a participant that makes monetary donations to charities through the KindLink Foundation Payroll Giving Scheme.

Donor Instruction Form means the online electronic form between the KindLink Foundation and the Participating Employee substantially in the form of the KindLink Foundation Donor (Employee) Instruction Form made available by the KindLink Foundation to the Client from time to time, available on the KindLink online giving platform.

Employee Donations means monies deducted by the Client from the emoluments of Participating Employees or monies paid by the Client in an amount equal to that sacrificed by Participating Employees from their emoluments, in each case, for distribution to Nominated Recipients as part of KindLink Payroll Giving.

Forms means, in respect of the Services described in this Service Schedule, such of the KindLink Foundation Payroll Giving Scheme Employer Form; the Payroll Giving Employee Form; the Donor Instruction Form; the Appointment of Third Party Form; or other such forms as are required by the KindLink Foundation Payroll Giving Scheme or by law, each submitted by the Client, as the context may require; and/or any other form of application submitted by the Client to the KindLink Foundation and accepted by the KindLink Foundation in order to procure the Services described in this Service Schedule.

HMRC means Her Majesty’s Revenue and Customs.

Income Tax Month means the period from (and including) the 6th day of one calendar month to (and including) the 5th day of the next calendar month.

Nominated Recipient means an organisation that is recognised as a charity for UK tax purposes that has been nominated by a Participating Employee to receive their Employee Donations.

Participating Employee means an employee of the Client, who has opted to make Employee Donations and participates in this Payroll Giving Scheme.

Payroll Giving Agency means an “approved agent” as that term is defined in section 714 Income Tax (Earnings and Pensions) Act 2003, as amended.

Regulations means the Charitable Deductions (Approved Schemes) Regulations 1986 SI 1986/2211, as amended.