These terms and conditions (“terms”) set out the terms upon which Emma Live Ltd (“Emma” or “we”) offers use of its online fundraising platform (the “fundraising platform”) and bidding facility (“bidding facility”) to:
- A seller of goods or services through the fundraising platform (a “seller”),
- A bidder on goods or services through the fundraising platform (a “bidder”), and
- A client charity or company hosting an auction for such goods or services on the fundraising platform (a “client”) (collectively a “user” or “you”).
Use of the fundraising platform and/or bidding facility by a user constitutes acceptance of these terms. If you do not agree to be bound by these terms, you may not use the fundraising platform.
Emma reserves the right to change these terms at any time. Amendments will take effect when posted on the website www.Emma-live.com (the “website”). The date of the terms is as stated at the top of the terms. The terms current at the start of your use will apply until that use is completed. Your continued use of the fundraising platform after any amendments to the terms shall be deemed to constitute your binding acceptance of such amendments.
1. Seller Terms
1.1. We will provide access to the fundraising platform to allow a seller to upload seller goods and/or services being offered by clients for purchase by bidders through the fundraising platform (“items”). The seller may list multiple different items or multiples of the same item.
1.2. When a seller lists an item on the fundraising platform, they must include a description of the item and the cost price for which the item can be offered by the client and purchased by a bidder (the “reserve”).
1.3. Where a seller lists an item on the fundraising platform, it authorises the client to conduct the sale of the item on the fundraising platform, for a price not less than the reserve. The seller waives any entitlement to have any involvement in the sale of the item once it is listed on the fundraising platform. The seller acknowledges that neither Emma nor the client are acting as an agent to the seller in respect of the sale of the item on the fundraising platform and the seller hereby waives any claim, right or action that they may have against Emma arising out of any claim or determination that Emma is acting as an agent of the seller or in any other fiduciary capacity in the sale of the seller’s item.
1.4. A seller will be contacted by a bidder to redeem the purchased item. The bidder will be provided with a voucher for the purchased item from the client which it should provide to the seller. The seller will then be notified of the details of the sale, including the identity of the winning bidder.
1.5. A seller warrants that it has full right and title to any images or other representations of items uploaded to the fundraising platform for use by the client. The seller hereby grants Emma a non-exclusive, fully paid, worldwide, sub-licensable license to display such images or representations of items for the purpose of facilitating the sale of such items through the fundraising platform.
1.6. Where an item is sold on the fundraising platform, the seller is solely responsible for collecting the reserve from the client. The seller acknowledges that Emma is not responsible or liable in any way for payment of the reserve to the seller, and the seller waives any right, claim or entitlement against Emma in respect of any failure by the client or the bidder to pay the reserve to the seller.
1.7. Subject to the client’s receipt of payment from the bidder, the client will be obliged to make payment to the seller in advance of the item being redeemed, used or otherwise provided to the bidder.
1.8. The seller acknowledges that the reserve is its maximum entitlement where an item is sold on the fundraising platform and agrees that any excess paid for the item by a bidder over and above the reserve will be donated to the client or any third party of the client’s choice.
1.9. Where applicable, the seller will be responsible for incorporating the seller’s terms of supply of goods or services in respect of the sale of the item. These terms and conditions do not incorporate any terms of conditions of the seller where the seller lists an item to be sold on the fundraising platform.
1.10. Sellers acknowledge and agree that (a) neither we nor any client guarantees that seller’s item will be included on the fundraising platform for an auction or that it will ultimately be sold; (b) the client may, in its discretion, change the description of an item without a seller’s approval; and (c) the client or Emma reserves the right to reject any item for an auction in its complete discretion, after having selected it for an auction.
1.11. By listing an item on the fundraising platform, a seller understands and agrees that he is responsible for complying with all applicable laws and regulations for the items listed, including any required labels and warnings. We assume no responsibility for the accuracy, labelling, or content of a seller’s items.
1.12. By listing items on the fundraising platform, a seller is agreeing to:
1.12.1. Honour any dispatch and processing times for the provision of the items to the bidder and/or the client, as agreed between the seller and a bidder and/or client. Sellers are obligated to dispatch an item or otherwise complete a transaction with a bidder in a prompt manner, unless there is an exceptional circumstance;
1.12.2. Respond to messages from Emma, a bidder or a client in a timely manner; and
1.12.3. Honour any commitments made when the item is listed.
1.13. The following campaigns and/or items and content are not allowed on the fundraising platform:
1.13.1. Sexually explicit, suggestive or pornographic material, including but not limited to bigotry, racism, sexism or profanity;
1.13.2. Content or causes associated with hate groups or terrorist organizations;
1.13.3. Drug abuse, products or paraphernalia;
1.13.4. Betting or gambling; and
1.13.5. The purchase, transfer, or exchange of weapons of any kind including guns, knives, explosives and ammunition.
1.14. We are not liable for, and the seller hereby releases Emma from any and all liability that may arise from, negligence, fraud, intentional misconduct, and/or any other tort or criminal action arising from actions or inactions of any bidder or client using the fundraising platform.
1.15. As a seller you agree that we can process your personal data in accordance with our privacy notice which is accessible at https://www.Emma-live.com/privacy.html.
2. Bidder Terms
2.1. The client auction operated on the fundraising platform is for the benefit of the client by whom the fundraiser is being run.
2.2. Items offered for sale on the fundraising platform are subject to the reserve which will be paid by the bidder to client and thereafter the client will make payment to the seller. The bidder will be required to make payment to the client through fundraising platform prior to redeeming a purchase of the item. All monies paid by a bidder above the reserve will be donated to the client.
2.3. Bidders may bid for more than one item on the fundraising platform in the same client auction.
2.4. The winning bidder on each item offered for sale on the fundraising platform will be the person who has submitted the highest bid, or at the client discretion, any bidder that has made a bid in excess of the reserve.
2.5. All bidders must be capable of forming legally binding relations under applicable law. The bidding facility may not be used by individuals under the age of 18 years old and by any other persons who are legally prohibited from, or otherwise incapable of, entering into binding contracts.
2.6. Any bidder using the bidding facility is warranting by so doing that they are legally entitled to do so.
2.7. As a bidder you agree that we can process your personal data in accordance with our privacy notice which is accessible at https://www.Emma-live.com/gdpr.html.
2.8. We do not and will not store bidder credit or debit card details beyond facilitating payment from the bidder to the client where they wish to purchase an item.
2.9. bidders wishing to bid on an item may make a bid for an item through the bidding facility. All items offered in a fundraising platform are listed and offered for sale on an "as is" basis. Bidders are advised to conduct any research or due diligence on an item prior to making a bid.
2.10. Bidders may be required to accept and seller’s term and conditions for the sale of an item. Such terms are not incorporated into these terms.
2.11. A bid made by a bidder is an offer to purchase the item from the seller at the stated bid price. Any bidder making a bid for an item acknowledges and agrees that their offer is an irrevocable offer to complete the transaction if they are the winning bidder whereupon the bid will become a contractually binding obligation to purchase the item at the bid price.
2.12. If a bidder bids on an item and that bid represents the winning bid for that item and the winning bid is above or equal to the reserve, the bidder's bid is deemed accepted.
2.13. The 'winning bidder' is the person certified by the client at the end of the auction, provided that their bid meets the reserve.
2.14. By bidding on an item, a bidder agrees to all the terms and sales conditions contained in the item (unless any of the terms violate these terms or applicable law). Payment for an item will be due immediately upon the completion of the client auction, unless otherwise agreed by the client. A bidder agrees to immediate payment and to pay any sales or use tax on the item, as well as any shipping or delivery charges.
2.15. We are not liable for, and each bidder are hereby releases Emma from any and all liability that may arise from, negligence, fraud, intentional misconduct, and/or any other tort or criminal action arising from actions or inactions of any bidder, seller or client using the fundraising platform.
2.16. Emma offers no warranty or guarantee as to whether the descriptions and/or photographs of items are accurate, complete and up-to-date, and it will not be responsible for any damages, loss or liability to a bidder by reason of a description of an item being inaccurate, incomplete.
2.17. In no event shall Emma be liable for any claim, demand or damages arising out of or in any way connected with the use by the bidder of the fundraising platform or the bidding facility, or otherwise in relation to their purchase of an item.
2.18. By agreeing to gift aid, the bidder is confirming that they are a uk taxpayer and understand that if they pay less income tax and/or capital gains tax in the current tax year than the amount of gift aid claimed on all their donations it is their responsibility to pay any difference. The bidder understands that other taxes such as vat and council tax do not qualify. The bidder understands that gift aid is reclaimed by the charity from the tax they pay for the current tax year. Gift aid on lot items is only applicable in a limited number of situations; the client will claim wherever possible; for more info see https://www.hmrc.gov.uk/charities/gift_aid/rules/auctions.htm.
3. Client Terms
3.1. By using the fundraising platform, the client understands and agrees that it is responsible for complying with all applicable laws and regulations relating to the fundraising activities on the fundraising platform, including but not limited to, any rules and regulations applying to the fundraising activities of charitable organisations and/or the handling of third-party money by charitable organisations. Emma assumes no responsibility for ensuring that fundraising occurring on the fundraising platform is compliant with applicable laws.
3.2. The client is required to remit the payment for an item to the seller upon redemption by the bidder.
3.3. The client acknowledges that the extent of Emma’s contractual warranties, undertaking and liabilities in respect of the client’s use of fundraising platform is set out in the customer terms and conditions (“terms and conditions”) agreed between the client and Emma. Other than as set in the terms and conditions, Emma excludes all liability in respect of the client’s use of the fundraising platform. The client specifically acknowledges that it is solely responsible for administering the fundraising event, including selecting seller’s items for sale, offering such items for sale on behalf of the seller, receiving payment for such items from a bidder, and remitting payment to the seller.
4. General Terms (apply to sellers, bidders and clients)
4.1. Emma hereby grants you a non-exclusive, non-transferable, revocable right to access and use the fundraising platform. The license and use granted hereunder is subject and conditioned upon the compliance with these terms. Nothing herein shall be deemed to convey ownership rights of any type to the fundraising platform or any related software, patents or other intellectual property rights.
4.2. We have no involvement in any sale and purchase of an item between a seller, a client and a bidder, other than acting as a facilitator to (i) provide bidder with the opportunity to purchase an item, (ii) provide the seller with an opportunity to sell an item, and (iii) provide the client with an opportunity raise money. We are not a direct or indirect party to the contract of purchase and sale of an item. We are not an auctioneer and we do not offer lotteries, prize promotions or sales promotions through the fundraising platform. We do not post the items advertised to auction on the fundraising platform. You acknowledge that we: (a) are not the owner of the items being sold; (b) do not conduct any fundraising activities on behalf of any third party including, without limitation, the client or seller; (c) do not have authority to act for and are not an agent for any seller or client; (d) do not screen, monitor or assess the description, quality, safety or legality of items advertised (provided that we do reserve the ultimate right to remove an item from the fundraising platform); (e) are not responsible in any way if any items displayed and subsequently sold via the fundraising platform prove unsatisfactory. We are not responsible for ensuring that any transaction for the purchase or sale of item on fundraising platform is completed.
4.3. Any software downloaded from the website or used as part of the auction process is at your own risk and we do not accept liability for any direct or indirect loss or damage howsoever caused as a result of any computer viruses, bugs, trojan horses, worms, software bombs or other similar programs arising from your use of this website. Whilst we will do our best to ensure that the website is free from such destructive programs, it is your responsibility to take reasonable precautions to scan for such destructive programs.
4.4. The reliability and functionality of the fundraising platform is not guaranteed. You waive any and all claims you may have against Emma arising out of the performance or non-performance of the fundraising platform.
4.5. Emma makes no representations or warranties as to the merchantability of any items offered or fitness for any particular purpose. Emma makes no representations or warranties that any bidder will be able to pay for an item or any seller will be able to sell, send or ship an item. We exclude all warranties, conditions, terms, undertakings and representations of any kind, express or implied, statutory or otherwise in connection with your use of the fundraising platform to the fullest extent permitted by law. You agree, by using the fundraising platform, that you are releasing Emma from any and all liability that may otherwise arise from these terms or your use of the fundraising platform, for any and all reasons including but not limited to negligence, failure of the website, fraud committed by a third party, intentional misconduct or any other tort. Further Emma will not be liable for any direct, indirect or consequential loss or damage howsoever arising as a result of your use or reliance on your use of the fundraising platform to the maximum extent permitted by law.
4.6. Without prejudice to the generality of the foregoing, under no circumstance shall Emma’s liability in respect of your use of the fundraising platform, whether arising in contract, tort (including negligence or strict liability), or otherwise, exceed the sum of £1,000.
4.7. Notwithstanding the foregoing nothing in these terms excludes or limits liability for death or personal injury, dishonesty, fraudulent misrepresentation, statutory rights of consumers that cannot be waived or limited by contract or otherwise to the extent permitted by applicable law.
4.8. You agree to fully indemnify, defend and hold Emma harmless immediately upon demand from and against all actions, liability, claims, losses, damages, costs and expenses (including legal fees) we incur arising directly or indirectly as a result of your breach of these terms, including without limitation, any claim that you have not honoured your commitments in respect of a transaction.
4.9. Emma shall have the right to restrict or terminate your access to the fundraising platform if you breach these terms.
4.10. No failure or delay by Emma to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
4.11. You agree not to assign these terms or any of your rights under it, nor sub-contract any or all of your obligations under these terms.
4.12. These terms do not and are not intended to provide any person who is not a party to the terms with any rights under the contracts (rights of third parties) act 1999 or otherwise.
4.13. If any provision of these terms is or becomes to any extent invalid or unenforceable under any applicable law then the remainder of these terms shall continue in full force and effect.
4.14. These terms are governed by and shall be construed in accordance with the law of England and wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.