TERMS OF SERVICE
Last Updated: May 1st 2022
1.1 Binding Agreement; Contracting Parties. These Terms of Service (“Agreement”) is 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 our websites located at http://www.changeup.com, [http://www.changeuptheworld.com, http://changeupforcharity.com, http://donateapp.gives, [**]] and all subdomains thereof (collectively, the “Site”), the financial contribution/charity donation platform and services we may provide or offer, including as accessible via our Site, third-party integrations, or otherwise (the “Platform”), and our mobile applications, including the ChangeUp app (collectively, the “App”). For purposes of this Agreement, the Site, Platform, App, and other services offered by us 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) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CHANGEUP THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 21 “DISPUTE RESOLUTION” 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 create an Account (defined below) or 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.
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 will be subject to any modifications we make. 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) 18 years of age or older and capable of forming a binding contract with ChangeUp, (ii) not otherwise barred from using the Service under applicable law, and (iii) you have created an Account (as defined below) (provided you have met (i), (ii), and (iii), 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 Account and 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 to your Account or in an associated App;
- 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 your Account to be 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
3.1 Account Registration. The Service is for Members only. If you want to use the Service, you will have to create a ChangeUp account (the “Account”). You can do this using your email or through your account with certain third-party services such as Discord, Spotify, Twitter, Facebook, Google, and others (each, a “Third Party Account”). If you choose the Third Party Account option, we will create your Account by extracting from your Third Party Account certain personal information such as your name and email address and other personal information that your privacy settings on the Third Party Account permit us to access.
3.2 Service Offerings. Our Service may be accessible to you directly via our Site, via our App, or integrated with, embedded on, or otherwise offered through third-party platforms (such third parties, “Merchants,” and such third-party platforms, “Merchant Platforms”)
3.3 Remitting your Donation to Charities. Our Members’ Donations will be sent to the end Charities (in the case of donation to a Portfolio, to the Charities within the Portfolio with each Charity in the Portfolio receiving an equal percentage), either by through direct remittance to the end Charities, or through a third party service provider that operates a donor advised fund and transfers your donations to the end 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.
3.4 Default Frequency. Please note that the default frequency of Donation is as elected by you (typically, one-time or a monthly or annually recurring Donation) through the Service. If you elected for a recurring Donation and no longer want to make a recurring Donation, you can either specify your choice of making a one-time Donation at the time of making a Donation through the Service or go to the settings page of your Account and change the frequency of your Donation to one-time Donation.
3.5 Giving Report. Through the Service, you can request for a copy of a report of your Donations (“Giving Report”). In the event that we use a Donor Advised Fund to transfer your Donations to end charities, we will send a request to the Donor Advised Fund (such as through Donor Advised Fund’s API) and the Donor Advised Fund may provide you with a Giving Report by email or other means. In the event that we send your donations to end charities directly, we will use commercially reasonable efforts to provide you a Giving Report by email or any other means deemed appropriate by us. Your Giving Report will identify the end recipients of your donations.
4. REPRESENTATIONS YOU MAKE TO US.
4.1 Representations and Warranties. You represent and warrant to us that the statements in this Section 4 are and will remain true.
- You are at least 18 years old (and capable of forming a binding contract with ChangeUp and consenting to making financial contributions and donations, as well as to data processing, under the laws of your territory) and that you are not otherwise barred from using the Service under applicable law.
- You will provide us with your legal identity and any supporting information and documents requested through the Service or by us, including but not limited to information pertaining to your funding instruments, such as that which is required for you to make Donations and related financial transactions, such as your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (“Payment Information”), and a copy of your state- or federally-issued identification such as a driver’s license or passport, and that you have the legal right to use all payment methods represented by any such Payment Information.
- Any funds provided by you in connection with the Service are yours or you have the legal authority to use them and they are not subject to any liens, security interest, encumbrances, or claims of any nature.
- Your use of the Service complies with all applicable laws and regulations including, without limitation, all US export controls and economic sanctions requirements.
- You are not, on, under the control of, acting for anyone on, or a national or resident of, and will not supply any money to, Cuba, Iran, North Korea, Sudan, Syria or any other jurisdiction subject to US embargo, UN sanctions, or HM Treasury's financial sanctions regime, Specially Designated Nationals List, the U.S. Commerce Department's Denied Persons List, Unverified List, or Entity List or the UN Consolidated United Nations Security Council Sanctions List; and
- All information you provide to us will be complete, true, and accurate and you commit to keeping all information complete and accurate at all times.
5. INQUIRIES ABOUT YOU.
5.1 Right to Inquire. We need to know who you are for legal regulatory and compliance reasons. We may prompt you for personal information like your legal name, address, government identification, date of birth, taxpayer identification number, bank information or credit card information. We may also ask questions and verify information ourselves or through trusted entities we work with for verification and compliance purposes. You agree that we may use the information you provide and other information to verify who you are. This may include looking up available public information and asking other entities, like banks, for information about you.
6. INFORMATION ABOUT THE SERVICE YOU SHOULD KNOW; FEES.
6.2 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 and may share a portion of that fee with us. Subject to Section 3.4, 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, the Donor Advised Fund may transfer your Donation to that end Charity to our default Charity, United Way of America.
6.3 ChangeUp Fee. ChangeUp may charge a fee for access and/or use of the Service, or to make a Donation (“ChangeUp Fee”). In some instances, the ChangeUp Fee may be paid to us directly from the Donor Advised Fund or an applicable Merchant, in which case you will not be charged such ChangeUp Fee. However, in other cases, 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.
6.4 Calculation of Donation Amount. In the event you are charged any fees for use of the Service, including to make a Donation, such as by a Third Party Payment Processor (e.g., a Payment Processing Fee), a ChangeUp Fee, a Credit Card Fee, or a fee from a Donor Advised Fund, you will have the right to deduct a charitable deduction from your taxes only towards the amount that equals to the total charge you paid for the Donation itself and not any applicable fees, and so the deduction amount will be subtracted by the applicable fees. So in the example in Section 6.1 above, the total charge to you was $103.3 and you would get a charitable deduction of $100.
6.5 Sharing of Your Donation with Public. We also allow Members to publish their donations on social media by electing for the “non-anonymous” setting through the Service. Please also note that if you do choose the “non-anonymous” option in the Service before making a donation, your name and charity to which you made a donation will be added to our newsfeed or other public posting and will become public. The default setting is “anonymous”, which you can change to “non-anonymous” in settings through the Service.
6.6 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, suspend and/or terminate your Account for such suspected activity.
7.1 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.
8. CONTENT AND CONTENT RIGHTS
8.1 Definitions. For purposes of these Terms: (i) “Content” means files, documents, text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Service; and (ii) “User Content” means any Content that you provide, to be made available through the Service.
8.2 Content Ownership; Responsibility. ChangeUp does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, ChangeUp and its licensors exclusively own all right, title and interest in and to the Content (including all Content we make available to you on or through the Service) and all associated intellectual property rights. You acknowledge that the Service (which, for greater certainty, includes without limitation the Content and the provision of Content) is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service.
8.3 Grant of License to use User Content. By making any User Content available through Service you hereby grant to ChangeUp a non-exclusive, transferable, sublicenseable (through multiple tiers), worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Service.
8.4 Representations and Warranties about User Content. You are solely responsible for all your User Content. You represent and warrant that: (i) you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms, and (ii) neither your User Content, nor your use and provision of your User Content to be made available through the Service, nor any use of your User Content by ChangeUp on or through the Service will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
8.5 Removal of User Content. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
8.6 Copyright Policy. ChangeUp respects copyright law and expects its users to do the same. It is our policy to terminate in appropriate circumstances Members who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see ChangeUp’s Copyright Policy, for further information.
9. YOUR LIMITED LICENSE TO USE OUR SERVICE
9.1 License for the Service. We grant you a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Service solely for informational, transactional, or other approved purposes and reserve all other rights in the Service, including without limitation, our websites, and other Content. 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 Content (excluding User Content) or other part of the Service for any purpose.
10. RIGHTS IN APP GRANTED BY CHANGEUP
10.1 App License. If you comply with this Agreement, ChangeUp grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on your personal computer, mobile handset, tablet, and/or other device and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in this Agreement, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
10.2 Additional Information: Apple App Store. This Section 10.2 applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
11. GENERAL PROHIBITIONS AND CHANGEUP’S ENFORCEMENT RIGHTS
11.1 Prohibitions. You agree not to do any of the following:
- post, upload, publish, submit or transmit any User Content 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;
- attempt to access or search the Service or download content from the Service using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by ChangeUp or other generally available third-party web browsers;
- send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- 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.
11.2 How We Deal with User Content. Although we’re not obligated to monitor access to or use of the Service or to review or edit any User Content, 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 remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or 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.
12. USE OF FUNDING INSTRUMENTS
12.1 Supported Financial Instruments. We want the Service to be convenient, so we may allow you to fund your donation transaction(s) or Account 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) or Account, 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.
12.2 Collection of Information related to Supported Financial Instruments. You authorize us to collect and store your Payment Information, along with other related transaction information. 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 your monthly transactions associated with the credit card in order to calculate the applicable donation amount for the month by rounding up each purchase you made using the credit card in that month. If you use Apple Pay to make a donation, you acknowledge and authorize us to obtain and store your name, address, credit card and other information associated with your Apple Pay that your privacy settings on the Apple Pay permit us to access. Further, when you initiate a Donation, you authorize us to provide your Payment Information to third parties so we can complete your Donation and to charge your payment method for the type of Donation you have selected (plus any applicable taxes and other charges). 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. We will use your Payment Information solely for the purpose of providing the Service to you (such as presenting the credit card information to you when you wish to make a credit card based donation in the future), including to enable you to make Donations. If you have not changed the frequency of your Donations in your Account, 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 through the Service on a monthly basis.
13. SHARING OF INFORMATION.
14. ASSUMED RISK WITH TRANSACTIONS.
14.1 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.
15. NON-WAIVER OF RIGHTS.
15.1 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.
16.1 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.
17. THINGS YOU SHOULD KNOW ABOUT THE INTERNET.
17.1 Internet has its inherent risks. We may require you to meet certain requirements for passwords and multi-factor authentication and we may change the requirements with or without prior notice. But, no matter how strong your password is, you must ensure that your Account credentials—including credentials for the email account you use in connection with the Service—are secure. If they are not, people may compromise and take action on your Account. You should always use two-factor authentication, always avoid copying scripts into you browser address bar, and avoid clicking on links, opening attachments or visiting Internet resources you do not trust. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access or in relation to the Service. We assume no responsibility for any losses resulting from the compromise of your Account.
18. LINKS TO THIRD-PARTY WEBSITES OR RESOURCES.
18.1 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.
19. TERMINATION AND CANCELLATION.
19.1 Cancellation of your Account. In the event that you want to stop using the Service, you can cancel your Account if you are in good standing and compliant with the terms of this Agreement and other policies. To cancel your Account by emailing us at email@example.com.
19.2 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 Account and 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.
20. CHANGEUP'S RIGHTS AND REMEDIES.
20.1 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.
21. DISPUTE RESOLUTION FOR U.S. CUSTOMERS.
21.1 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”).
21.2 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.
21.3 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.
21.4 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.
21.5 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.
21.6 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 23 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.
21.7 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)).
21.8 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).
22.1 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, (c) your User Content, or (d) your violation of this Agreement.
23. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
23.1 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.
23.2 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.
23.3 GIVING REPORTS. IN THE EVENT THAT GIVING REPORTS ARE PROVIDED TO YOU BY THIRD PARTIES (SUCH AS BY A DONOR ADVISED FUND), WITHOUT LIMITING SECTIONS 23.1 AND 23.2, YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR THE ACCURACY, CORRECTNESS OR COMPLETENESS OF SUCH GIVING REPORTS AND YOU AGREE TO ASSUME ALL RISKS OF USING SUCH GIVING REPORTS.
23.4 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.
23.5 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.
23.6 LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL CHANGEUP’S TOTAL 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.
23.7 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CHANGEUP AND YOU.
24. OTHER MATTERS.
24.1 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.
24.2 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.
24.3 Interpretation of This Agreement. Subject to Section 21.2 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.
24.4 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 1.1, 4.1, 5, 7, 8.2, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24.
24.5 Governing Law. Subject to Section 21 (Dispute Resolution), 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.
ChangeUp, Inc. COPYRIGHT POLICY
Notification of Copyright Infringement
ChangeUp, Inc. (“Change Up”) respects the intellectual property rights of others and expects its users to do the same.
It is ChangeUp’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others.
In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, ChangeUp will respond expeditiously to claims of copyright infringement committed using the ChangeUp website or other online network accessible through a mobile device or other type of device (the “Sites”) that are reported to ChangeUp’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Sites by completing the following DMCA Notice of Alleged Infringement and delivering it to ChangeUp’s Designated Copyright Agent. Upon receipt of the Notice as described below, ChangeUp will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Sites.
DMCA Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to ChangeUp’s Designated Copyright Agent:
Copyright Agent c/o ChangeUp, Inc. email@example.com