TERMS OF SERVICE
Last Updated: February 22, 2024
1.1 Binding Agreement; Contracting Parties. These Terms of Service (“Agreement”) are an important document, as it is a binding contract between you and Change Up, Inc. (“ChangeUp”, “we”, “us” or “our”). This Agreement governs your use of (i) our websites located at http://www.changeup.com, http://changeupforcharity.com, http://donateapp.gives, and all subdomains thereof (collectively, the “Site”), (ii) the financial contribution/charity donation platform and services we provide or offer, including as accessible via our Site, or via integrations with our third-party licensees (“Merchants”), and otherwise (the “Platform”) . For purposes of this Agreement, the Site and the Platform are collectively referred to herein as the “Service”.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION AS EXPRESSLY SET FORTH HEREIN) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CHANGEUP THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION FOR U.S. CUSTOMERS” BELOW FOR DETAILS REGARDING ARBITRATION.
1.2 Agreement to Terms. By using our Service, you agree to be bound by this Agreement and all terms and conditions herein. If you do not agree to be bound by this Agreement, do not use the Service. If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that case, “you” and “your” will refer to that entity. For users of the Service via Discord, the Discord Users Addendum, attached hereto as Addendum 1, applies in addition to this Agreement and is incorporated herein.
1.3 Changes to Terms or Service. We may modify or update this Agreement from time to time in our sole discretion and will notify you, where applicable, of such modifications under our Electronic Communications Delivery Policy set forth in Section 2. Your continued use of the Service means you accept and agree to the modifications and/or updates to this Agreement. Because our Service is evolving over time, we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.
1.5 Who May Use the Service. You may use the Services only if you are (i) capable of forming a binding contract with ChangeUp in your jurisdiction and the jurisdiction in which you will access the Services, and (ii) not otherwise barred from using the Service under applicable law (provided you have met (i) and (ii), you will be deemed a “Member” for purposes of this Agreement).
2. ELECTRONIC COMMUNICATIONS
2.1 Electronic Communications. We may be required to provide certain disclosures, notices and other communications (collectively “Communications”) to you in written form. Pursuant to this Agreement, we will deliver such Communications to you in electronic form. Your acceptance of this Agreement confirms your ability and consent to receive such Communications electronically, rather than in paper form.
2.2 Types of Communications. You agree and consent to receive electronically all Communications (and other general communications and notices, such as those which may not be legally required), including, without limitation, amendments to this Agreement and other documents, notices and disclosures that we provide in connection with your use of the Service. “Communications” include, but are not limited to:
- Transaction confirmations, acknowledgements, authorizations, disclosures, receipts or confirmations;
- Transaction activity statements and history;
- Federal and state tax statements if we are required to make any available to you; and
- All other communications or documents related to or about your use of the Service.
2.3 Deemed Receipt. Electronic Communications shall be deemed to be received by you upon delivery in the following manner:
- Sending them via electronic mail to the email address you used to register for the Service;
- Posting them on or in our Site; or
- Otherwise communicating them to you via the Service.
2.4 Responsibility to Review Communications. It is your responsibility to open and review Communications that we deliver to you through the methods described above. We may, but are not obligated to, provide you with notice of the availability of a Communication that is delivered in one of the methods described above (for example, by informing you of such Communication through a notification sent to your mobile device).
2.5 Using Up to Date Email Account. It is your responsibility to keep your primary email address registered with us up to date so that we can communicate with you electronically. You understand and agree that if we send you an electronic Communication but you do not receive it because your primary email address registered with us is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, we will be deemed to have provided the Communication to you. You can update your primary email address and other contact information by making the change through the Service. If your email address becomes invalid such that electronic Communications sent to you by us are returned, we may deem you as inactive, and you may not be able to use the Service until we receive a valid primary email address from you.
2.6 Spam Filter. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you may need to add us to your email address book so that you will be able to receive the Communications we send to you.
2.7 Minimum Hardware and Software Requirement for Communications. In order to access and retain electronic Communications, it is your responsibility to, at your sole cost, obtain and use appropriate computing hardware and software that meet the following minimum requirements:
- A computer, a mobile phone or other device with an Internet connection;
- A current web browser (e.g. recent versions of Chrome, Firefox, Safari and Internet Explorer) with cookies enabled;
- Software capable of opening documents in PDF format; and
- Sufficient storage space to save past Communications or an installed printer to print them.
We will notify you if there are any material changes to the hardware or software needed to receive electronic Communications from us. By giving your consent to receive electronically all Communications, you are also confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You agree to print or save a copy of these Communications for your records as they may not be accessible online at a later date.
2.8 Additional Copies of Communications or Withdrawing Consent. If you are requesting additional copies of Communications or withdrawing your consent, the following additional terms will apply:
- You may contact us to request another electronic copy of the electronic Communication, and we will not charge any fee for providing such copy;
- You may request a paper copy of such electronic Communication within ninety days of the original Communication issuance date, and we reserve the right to charge a fee to provide such paper copy;
- You may contact us to update your registration information used for electronic Communications or to withdraw consent to receive electronic Communications; and
- We reserve the right to terminate your use of the Service if you decline or withdraw consent to receive electronic Communications.
3. DESCRIPTION OF SERVICE
3.2 Remitting your Donation to Charities. Our Members’ donations via the Service (each, a “Donation”) will be sent to the charity selected by the applicable Merchant or Member (each, a “Charity”), either by through direct remittance to the applicable Charities, or through a third party service provider that operates a donor advised fund and transfers your donations to the Charities (the “Donor Advised Fund”). You acknowledge that as required by law for a donor advised fund, such Donor Advised Fund will have exclusive control over any Donation that it receives. You understand that in a donor advised fund, the donor only advises the Donor Advised Fund where the money should go. While not common, the Donor Advised Fund in its discretion may direct donations to a Charity other than the one selected by the donor.
4. REPRESENTATIONS YOU MAKE TO US.
4.1 Representations and Warranties. You represent and warrant to us that your use of the Service complies with all applicable laws and regulations including, without limitation, all US export controls and economic sanctions requirements.
5. INFORMATION ABOUT THE SERVICE YOU SHOULD KNOW; FEES.
5.1 Third Party Payment Processors. We may use one or more third party payment processors (“Third Party Payment Processors”) for processing payment of your donation, such as Stripe, Inc. (“Stripe”), and you authorize ChangeUp to utilize such Third Party Payment Processor, and such Third Party Payment Processor to charge your applicable payment method (such as credit card) for your Donations. Additional information related to Stripe’s payment processing and other related terms can be found at https://stripe.com/us/legal, and additional information related to Stripe’s privacy and information collection, processing, and sharing practices can be found at https://stripe.com/us/privacy. Additionally, if you use a credit card (or related payment method) to make a Donation, the third-party credit card (or related payment method) provider (“Credit Card Provider”) may charge a fee for use of such payment method (“Credit Card Fee”). You acknowledge and agree that any and all Credit Card Fees are solely between you and the Credit Card Provider, are subject to the applicable terms and conditions between you and such Credit Card Provider, and that ChangeUp has no liability or responsibility in connection with or arising out of any such Credit Card Fees.
5.2 Donor Advised Fund. We may send your charitable Donations to end Charities directly. Alternatively, we may use a Donor Advised Fund, which is a standard vehicle for charitable giving, to transfer your Donations from you to the end Charities. Typically, such Donor Advised Fund will charge a fee for providing its service. In that case, only when the Donor Advised Fund receives your 100% Donation, will it then charge its fee. The Donor Advised Fund will not transfer your donation to the end charity unless the total amount of donations to the specific end Charity collected by the Donor Advised Fund from other individuals or entities during the applicable time period exceeds the minimal amount required by the Donor Advised Fund. In the event that the Donor Advised Fund fails to collect sufficient Donations to an end Charity that exceeds the minimal amount required by the Donor Advised Fund, or if the Donor Advised Fund determines that an applicable end Charity is a “bad actor” or otherwise not in good standing, the Donor Advised Fund may transfer your Donation to our default Charity, United Way of America.
5.3 ChangeUp Fee. ChangeUp may charge a fee for access and/or use of the Service, or to make a Donation (“ChangeUp Fee”). You may be charged the ChangeUp Fee directly, as shown through the Services (e.g., when making a Donation). If you are charged a ChangeUp Fee, you authorize us to use your Payment Information to charge you for the ChangeUp Fee, in full, which is separate and in addition to your Donation.
5.4 Suspicious Activity. For regulatory and compliance reasons, we reserve the right to cancel, reverse or refuse to process any Donation if we suspect the transaction(s) may involve illicit activity such as money laundering, terrorist financing, fraud, any crime, or as required by facially valid legal process. We reserve the right to report such suspected activity and/or suspend or terminate your access to the Services.
6.1 Feedback and Suggestions. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Service (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you, and you grant us an irrevocable, perpetual, and worldwide license to the Feedback to exercise our foregoing rights in this Section.
7. TRANSACTION ANALYTICS
7.1 Transaction Information. ChangeUp reserves the right to collect and analyze transaction information related to your Donations, including without limitation whether a Donation has been made, Donation amount, round-ups and Donation increase elections, and selected charities, as well as information related to your use of the Service, each in a deidentified manner (“Transaction Analytics”), and you grant ChangeUp a license to use Transaction Analytics for its business purposes such as its provision, operation, maintenance, and improvement of the Service.
8. YOUR LIMITED LICENSE TO USE OUR SERVICE
8.1 License for the Service. We grant you a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Service solely to make Donations and for related purposes to making such Donations as expressly authorized under this Agreement. You agree you have no other rights beyond this limited license. You agree you will not copy, transmit, distribute, sell, resell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another website, or in any other way exploit any part of the Service for any purpose.
9. GENERAL PROHIBITIONS AND CHANGEUP’S ENFORCEMENT RIGHTS
9.1 Prohibitions. You agree not to do any of the following:
- post, upload, publish, submit or transmit any data, information, or materials that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- access the Service using automated means of any nature;
- send, use or upload any scripts, viruses or malicious code, or develop extensions, plugins or applications except as may be explicitly allowed by us;
- anything that could disable, overburden or impair the functionality, rendering or appearance of the Service, including through denial of service or other attack;
- use, display, mirror or frame the Service or any individual element within the Service, ChangeUp’s name, any ChangeUp trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ChangeUp’s express written consent;
- access, tamper with, or use non-public areas of the Service, ChangeUp’s computer systems, or the technical delivery systems of ChangeUp’s providers;
- attempt to probe, scan or test the vulnerability of any ChangeUp system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by ChangeUp or any of ChangeUp’s providers or any other third party (including another user) to protect the Service;
- use any meta tags or other hidden text or metadata utilizing a ChangeUp trademark, logo URL or product name without ChangeUp’s express written consent;
- use the Service, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service;
- interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
- collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- impersonate or misrepresent your affiliation with any person or entity;
- violate any applicable law or regulation; or
- encourage or enable any other individual to do any of the foregoing.
9.2 Investigations and Compliance. Although we’re not obligated to monitor access to or use of the Service, we have the right to do so for the purpose of operating the Service, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to disable access to the Service, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider your use of the Service to be in violation of the Agreement. We have the right to investigate violations of this Agreement or conduct that affects the Service including without limitation, consulting and cooperating with law enforcement authorities to prosecute users who violate the law.
10. USE OF FUNDING INSTRUMENTS
10.1 Supported Financial Instruments. We want the Service to be convenient, so we may allow you to fund your donation transaction(s) using different financial instruments and/or accounts. You may use Apple Pay, bank account, debit cards, credit cards and other financial instruments to the extent the Service supports them. When you fund your transaction(s), you confirm that you are permitted to use the associated financial instrument and/or account and you authorize us (and any designated payment processor such as Stripe, or other service provider such as the Donor Advised Fund) to charge the full amount to the financial instrument and/or external account you designate.
10.2 Collection of Information related to Supported Financial Instruments. You authorize us to collect and store your transaction information in a deidentified manner (i.e., tied to a unique identifier). For instance, in the event that you link to a credit card for the purpose of making a Round Up Donation, we will obtain and store a list of such monthly transactions, tied to the applicable unique identifier. By initiating a Donation, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Donations are non-refundable and non-transferable except as expressly provided in this Agreement. All fees and applicable taxes, if any, are payable in United States dollars.
11. ASSUMED RISK WITH TRANSACTIONS.
11.1 Assumption of Risks. Your use of the Service, or any part thereof, is at your sole risk and we assume no responsibility in connection with your Donations to the Charities using the Service, or the actions or identity of any transfer recipient or sender. If any third party files a claim against you or we are otherwise informed of a dispute between you and another party, we are not responsible for determining the veracity of claims or resolving the dispute, including disposition of any associated funds.
12. NON-WAIVER OF RIGHTS.
12.1 Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement shall not be construed to waive rights that cannot be waived under applicable consumer protection laws or regulations including, without limitation, the state money transmission laws in the state where you are located.
13.1 Tax Obligations. We do not provide tax advice and you agree that you will determine any tax implications associated with your use of, and any donations you may make using, the Service. You should consult an accountant, lawyer or tax authorities in your jurisdiction to determine any tax consequences. It is your responsibility to make sure that the Charity that you are contributing to is a tax exempt organization. If your Charity is not tax exempt, you will not get the charitable deduction. If you are a citizen or taxpayer of a jurisdiction outside the United States, your donation may not be deductible.
14. LINKS TO THIRD-PARTY WEBSITES OR RESOURCES.
14.1 Links to Third Party Resource. The Service may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
15. TERMINATION AND CANCELLATION.
15.2 Termination of Service. Your use of the Service is a privilege, and not a right. We may, at our sole discretion, cancel, terminate, suspend or otherwise restrict your access to all or part of the Service at any time and without notice or liability to you. Without limiting the generality of the foregoing, we may terminate your access to the Service and delete all related information and files.
16. CHANGEUP’S RIGHTS AND REMEDIES.
16.1 Our Rights and Remedies. You are responsible for all claims, fees, fines, penalties and other liability incurred by ChangeUp or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Service. You agree to reimburse ChangeUp or a third party for any and all such liability and any fees and expenses incurred in the event that ChangeUp must undertake collection efforts to enforce its rights hereunder.
17. DISPUTE RESOLUTION FOR U.S. CUSTOMERS.
17.1 Agreement to Arbitrate. You and ChangeUp agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii) is referred to the “IP Protection Action”).
17.2 Class Action Waiver. YOU AND CHANGEUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
17.3 Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879.
17.4 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written demand (the “Demand”) for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
17.5 Arbitration Location and Procedure. Unless you and ChangeUp otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and ChangeUp submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
17.6 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with Section 20 as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
17.7 Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $10,000, ChangeUp will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
17.8 Changes. Notwithstanding Section 1.3, if ChangeUp changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of ChangeUp’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and ChangeUp in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
18.1 Indemnity. You will indemnify and hold ChangeUp and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Service, (b) your Donations, or (c) your violation of this Agreement.
19. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
19.1 SERVICE DISCLAIMERS. WE TRY TO KEEP THE SERVICE UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO ANY PART OF THE SERVICE, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, ERROR-FREE, OR SECURE. OPERATION OF THE SERVICE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. WE MAKE NO REPRESENTATION OR WARRANTIES AS TO THE QUALITY, SUITABILITY, USEFULNESS, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY MATERIALS CONTAINED THEREIN. WE WILL MAKE REASONABLE EFFORTS TO ENSURE THAT ANY REQUESTS FOR ELECTRONIC DEBITS AND CREDITS INVOLVING BANK ACCOUNTS, CREDIT CARDS, AND CHECK ISSUANCES ARE PROCESSED IN A TIMELY MANNER BUT WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING.
190.2 NOT RESPONSBILE FOR THIRD PARTIES. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS AND OUR AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
19.4 CALIFORNIA RESIDENT. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
190.5 NO INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER CHANGEUP NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CHANGEUP OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
19.6 LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL CHANGEUP’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE LESSER OF (A) THE ACTUAL FEES PAID TO US BY YOU IN THE PRECEDING THREE (3) MONTHS; AND (B) US$100 DOLLARS.
190.7 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CHANGEUP AND YOU.
201. OTHER MATTERS.
201.1 Entire Agreements. Unless otherwise agreed in writing, this Agreement sets forth the entire understanding and agreement between you and us as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of this Agreement), and of every nature between and among you and us.
20.2 Assignment. This Agreement, and any rights, obligations and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without notice or restriction, including without limitation to any of our affiliates, parents or subsidiaries, or to any successor in interest. Any attempted transfer or assignment in violation hereof shall be null and void except that, subject to the limits herein, our agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
20.3 Interpretation of This Agreement. Subject to Section 18.2 of this Agreement (Class Action Waiver), if any provision of this Agreement is held by a court to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible and any such finding shall not affect the enforceability of any other provision.
20.4 Ongoing Obligations after this Agreement Ends. Upon any cancellation, suspension or termination of the Service and/or this Agreement, the following Sections of this Agreement will survive: Sections 4.1, 6 (to the extent of any of your payment obligations which accrued prior to termination/expiration), 6, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20.
20.5 Governing Law. Subject to Section 18 (Dispute Resolution for U.S. Customers), the laws of the State of California, without regard to principles of conflict of laws, govern this Agreement and any claim or dispute between you and us except to the extent governed by U.S. federal law.
Addendum 1 – Discord Users
- Discord Users. If you access or use the Service via Discord (such as accessing the Service through your account with Discord (“Discord Account”), or have been redirected to the http://donateapp.gives website directly from Discord, you will be referred to as a “Discord User” for purposes of this Addendum 1 (this “Discord Addendum”), and this Discord Addendum will apply in addition to the Agreement to which it is attached.
- Service Offerings. For Discord Users, our Service may be accessible to you as integrated via Discord, or directly via our Site.
- Discord Account Information. If you are a Discord User, you acknowledge and agree that ChangeUp may collect certain information related to your Discord Account or Donation transaction information, including without limitation email address (associated with your Discord Account), Discord username, avatar associated with your Discord Account, list of servers associated with your Discord Account, Donation amount, and Charity selected.
- Donations. Pursuant to Section 5.1 of the Agreement, ChangeUp may utilize a Third Party Payment Processor to process transactions related to Donations, and you authorize ChangeUp to utilize such Third Party Payment Processor in connection with Donations made via the Service as a Discord User, and you authorize the Third Party Payment Processor to process such transactions on your behalf.