TERMS OF SERVICE
1.1 Binding Agreement; Contracting Parties. These Terms of Service (“Agreement”) is an important document, as it is a binding contract between you and ChangeUp, Inc. (“ChangeUp”, “we”, “us” or “our”). This Agreement applies to your use of: our websites located at http://www.changeuptheworld.com and http://changeupforcharity.com (collectively, the “Site”), the products or services we may provide or offer, our mobile applications, including the PopGive app and the ChangeUp app (collectively, the “App”) through which any products and services are provided, and your member account (collectively with the site and the app, the “Service”).
1.2 Agreement to Terms. If you do not accept the terms of the Agreement, you may not become a member, you may not create an Account (as defined in Section 3.1), and you are not authorized to use the Service for any purpose. If you have any questions, you can contact us at firstname.lastname@example.org. If you are entering this Agreement on behalf of an entity, you confirm that you are an authorized officer of that entity and have the authority to enter into agreements for and on behalf of 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.
1.4 DISPUTE RESOLUTION. PLEASE READ THIS CAREFULLY AS IT CONTAINS IMPORTANT PROVISIONS THAT GOVERN DISPUTES BETWEEN YOU AND CHANGEUP ARE RESOLVED (SEE SECTION 20 “DISPUTE RESOLUTION”). UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND CHANGEUP WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1.5 LIMITATION OF LIABILITY. OUR LIABILITY TO YOU IS LIMITED BY THIS AGREEMENT (SEE SECTION 22 “WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY”).
1.7 Who May Use the Service. You may use the Service if you are 18 years or older and are not barred from using the Service under applicable law. If you are between 13 and 18, you must have permission from your legal guardian before you are permitted to use the Service. You are not permitted to use the Service if you are under 13 years old.
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, 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 Facebook or Google (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 Ways to Donate. Through the functionality of our Service, we allow our members to donate money to charities of their choice in a variety of ways, and also to receive the giving report for their donations as further described in Section 3.5. You may donate money by making a one-time or a monthly donation of a fixed amount to a particular charity or a group of charities pre-selected by a third party or by us (each such group of pre-selected charities made available to you through the Service is referred to as the “Portfolio”). Alternatively, you may donate by rounding up payments for each of your purchases in a calendar month to the next whole number, and donating the total amount collected from rounding up to a charity or a Portfolio of charities at the end of the month (such donation is referred to as the “Round Up Donation”). Please note that by default, Round Up Donation is recurring on a monthly basis unless terminated by you.
3.3 Remitting your Donation to Charities. We will send our members’ donations 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 sending it directly to the end charities, or by using 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 that the one selected by the donor.
3.4 Default Frequency. Please note that our default frequency of donation is a monthly recurring donation. If you do not 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 or go to the settings page of your Account and change the frequency of your donation to one time. In addition, you will receive from us weekly notifications of new charities through the PopGive app and you may donate to such new charities as soon as they are made available to you.
3.5 Giving Report. Through the Service, you can request for a copy of your 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 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.
3.6 $1 Giveaway. From time to time, ChangeUp may in its discretion create $1 giveaway promotions for its users through the Services (the “$1 Giveaway”). To participate in the $1 Giveaway, you must complete all of the steps, submit all the information and meet all the eligibility requirements described on the Site or in the App (as the case may be), and you must use Apple Pay to make the $1 donation to one of the charities curated by ChangeUp. As part of the $1 Giveaway, the $1 donation will be paid by ChangeUp to the designated charity and will not be charged to your Apple Pay account. You acknowledge that ChangeUp may in its sole discretion start, suspend, terminate or resume the $1 Giveaway promotion at any time and without any prior notice to you. You acknowledge and agree that in connection with your participation in the $1 Giveaway, ChangeUp may collect and use certain information associated with your Apple Pay account in accordance with Section 11.2 of this Agreement.
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 have the capacity to enter into a legally binding agreement. If you are between 13 and 18 years old, you must have permission from your legal guardian before you use the Service.
- You will provide us with your legal identity and any supporting information and documents that we may request, including but not limited to a copy of your driver’s license and a copy of your passport.
- 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 or claims of any nature.
- Your use of the Service complies with all applicable laws and regulations including, without limitation, requirements governing the maintenance and use of fiduciary accounts and custodial assets, 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 and accurate and you commit to keeping all information complete and accurate at all times.
5. INQUIRIES ABOUT YOU.
5.2 Right to Obtain Credit Report. If you are entering into this Agreement on behalf of an entity or otherwise opening an Account on the Service for an entity, you are hereby providing us with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain your personal and/or business credit report from a credit bureau.
6. INFORMATION ABOUT THE SERVICE YOU SHOULD KNOW.
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 3.3, 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. Only when the charity or the Donor Advised Fund receives 100% of your donation will the charity or Donor Advised Fund then pay ChangeUp a platform fee of between 3.00% and 4.50% of the donation’s total amount. In some instances, our fee may be paid to us from the fee received by the Donor Advised Fund, as further explained in Section 6.2, in which case our platform fee will remain between 3.00% and 4.50%. The percentage charged by the Donor Advised Fund as its fee, and the percentage of Donor Advised Fund’s fee shared with us, may be different depending on, among other things, the Donor Advised Fund, its agreement with the end charities, its agreement with us, and the platform utilized by the donor in making the donation (mobile, web, or banking rewards program). Due to these factors, ChangeUp’s total fee will be between 3.00% and 4.50% of the total donation amount, and payable only when the charity or the Donor Advised Fund receives 100% of a user’s donation. We are pleased to bring such a low fee to the marketplace of charitable giving, where charities routinely pay 10% to 50% to acquire a dollar of fundraising. It is our goal to make giving easy by offering both digital efficiencies and savings from traditional fundraising costs.
6.4 Calculation of Donation Amount. In the event that a third party payment processor such as Stripe deducts its processing fee, you will get a charitable deduction from your taxes only towards the amount that equals to the total charge you paid subtracted by the applicable payment processing 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 our members to publish their donations on social media, and challenge their friends for donating to their charity. Please also note that if you do not choose the option “anonymous” 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 “non-anonymous”, which you can change to “anonymous” in the setting.
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. CONTENT AND CONTENT RIGHTS
7.1 Definitions. For purposes of these Terms: (i) “Content” means 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. Content includes without limitation User Content.
7.2 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 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.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
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 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.
9. RIGHTS IN APP GRANTED BY CHANGEUP
9.1 License for the App. Subject to your compliance with these Terms, ChangeUp grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes to conduct transactions contemplated in this Agreement. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App (which, for greater certainty, includes all the Content made available to Account holders (including you) through the App); (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. ChangeUp reserves all rights in and to the App not expressly granted to you under these Terms.
10. GENERAL PROHIBITIONS AND CHANGEUP’S ENFORCEMENT RIGHTS
10.1 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; or (iv) 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;
- 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 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;
- 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.
10.2 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.
11. USE OF FUNDING OF INSTRUMENTS
11.1 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.
11.2 Collection of Information related to Supported Financial Instruments. You authorize us to collect and store your funding instruments, 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. We will use such 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). 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.
12. SHARING OF INFORMATION.
13. ASSUMED RISK WITH TRANSACTIONS.
13.1 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 donation 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.
14. NON-WAIVER OF RIGHTS.
14.1 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.
15.1 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.
16. THINGS YOU SHOULD KNOW ABOUT THE INTERNET.
16.1 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.
17. LINKS TO THIRD-PARTY WEBSITES OR RESOURCES.
17.1 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.
18. TERMINATION AND CANCELLATION.
18.1 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.
18.2 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.
19. CHANGEUP’S RIGHTS AND REMEDIES.
19.1 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.
20. DISPUTE RESOLUTION.
20.1 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”).
20.2 Arbitration Opt-out Notice. Without limiting Section 20.1, you will also have the right to litigate any other Dispute if you provide ChangeUp with written notice of your desire to do so by email at firstname.lastname@example.org, within thirty (30) days following the date you first agree to these Terms (the “Arbitration Opt-out Notice”). If you do not provide ChangeUp with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in Section 20.1(i) and 20.1(ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide ChangeUp with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
20.3 Class Action Waiver. Unless you timely provide ChangeUp with an Arbitration Opt-out Notice, you acknowledge and agree that you and ChangeUp are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and ChangeUp otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
20.4 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.
20.5 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.
20.6 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.
20.7 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 22 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.
20.8 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)).
20.9 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 email@example.com) 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).
21.1 Indemnity. If anyone brings a claim against us, our affiliates or service providers, and/or each of our or their respective officers, directors, agents, joint ventures, employees or representatives, related to your use of the Service, or any part thereof, including, without limitation, alleged violation of any laws, rules or rights, you indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
22. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
22.1 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 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.
22.2 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.
22.3 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 22.1 AND 22.2, 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.
22.4 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.
22.5 NO INDIRECT DAMAGES. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22.6 LIABILITY CAP. OUR AGGREGATE LIABILITY FOR US, OUR AFFILIATES, AND SERVICE PROVIDERS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSOR OF (A) THE ACTUAL FEES PAID TO US BY YOU IN THE PRECEDING THREE (3) MONTHS; AND (B) US$100 DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED.
23. OTHER MATTERS.
23.1 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.
23.2 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.
23.3 Interpretation of This Agreement. Subject to Section 20.3 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.
23.4 Ongoing Obligations after this Agreement Ends. Upon any cancellation, suspension or termination of the Service, the following Sections of this Agreement will survive: Sections 1.1, 4.1, 5.2, 6.5, 6.6, 7, 8, 10, 12, 13, 14, 15, 17, 18.2, 19, 20, 21, 22 and 23.
23.5 Governing Law. Subject to Section 20 (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.
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:
c/o ChangeUp, Inc.