Terms and Conditions of Use for Budge
August 1, 2012
Budge (“Budge,” “we,” or “us”), with an address at 78 Bank Street, New York, NY 10014, is the provider of a mobile phone application that enables users to engage in “challenges” against themselves or with their friends as a way of facilitating micro-donations to charities (the “Application). By using the Application and website, you are agreeing to the following terms and conditions. These terms and conditions shall constitute an agreement (the “Agreement”) between you and Budge governing your use of the Application. Please read these terms and conditions carefully before using the Application.
By using the Application and/or completing the donation to the charity of your choice, you represent and warrant that you have read, understand, have the legal capacity, and agree to be bound by these terms and conditions.
Budge requires that users who are under 18 years of age obtain parental consent before using the application.
Changes to this Agreement
Budge reserves the right, at its sole discretion, to change, modify or otherwise alter these terms and conditions at any time. It will post the most recent version of these terms and conditions on its web site at www.thebudge.com/terms with a date indicating when changes were last made. Any modifications shall become effective immediately upon the posting thereof. Please check for updates each time you use the Application to keep apprised of any changes. Your continued use of the Application following the posting of modifications will constitute your acceptance of the revised terms and conditions.
Your Registration Obligation
You may register with Budge through Facebook Connect or by providing an email address and password. When registering with Budge you agree to provide true, accurate, current and complete information. Should Budge determine that any false or inaccurate information was provided in connection with registration, Budge may suspend or eliminate your ability to use the Application.
You may not authorize any third party to access or use the Application on your behalf. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your password. You agree to immediately notify Budge of any unauthorized use of your password at firstname.lastname@example.org. Budge shall have no liability for any loss, damage or injury to you or to any third party arising from any unauthorized use of your account.
Consent to Communications
By registering to use the Application, you understand that Budge may send you e-mail communications or data regarding your use of the Application, violations of such use, and/or promotional information and materials regarding Budge. To the extent such communication concerns an offer or solicitation by Budge, it will provide opt-out instructions. Budge reserves the right to communicate by e-mail or otherwise, with you or your representative.
Payment of Fees
If you decide to make a donation to charity, Budge will charge a fee for the use of the Application in an amount up to 5% of the donation. Budge does not handle funds directly except through a third party processing company, Authorize.net. Authorize.net facilitates the movement of your funds to a charity, and will charge a small fee for doing so. You are solely and exclusively responsible for payment of these fees. Budge does not charge fees to the recipient charity. Donated funds will be transferred to the designated charity generally within 30 days of submission. This 30-day transfer window is a general target that Budge will attempt to meet, but the transfer time frame is subject to change without notice, and Budge shall have no obligation or liability as a result of any delay beyond 30 days.
You will not be charged any fees other than those described in this section.
Budge reserves the right to change the fees and/or to institute new charges at any time, upon prior notice to you.
Once you submit a donation to charity through Budge by pressing the submit button in the payment screen, or entering your password to authorize a payment, such payment is non-refundable.
Budge has established a Privacy Statement to explain to users how their information is collected and used. You may view the Privacy Statement at www.thebudge.com/privacy. Your use of the Application signifies your acceptance of the Privacy Statement.
Voluntary Nature of Participation
BUDGE CHALLENGES ARE NOT, AND DO NOT INVOLVE, BETS, WAGERS OR LOTTERIES.
NO BUDGE PARTICIPANT IS OBLIGATED TO MAKE A DONATION TO CHARITY.
THE DECISION TO MAKE A DONATION IS AT THE SOLE AND EXCLUSIVE DISCRETION OF THE BUDGE USER.
BUDGE FRIEND CHALLENGES ARE PURELY VOLUNTARY AND NONBINDING. REGARDLESS OF THE OUTCOME, NEITHER CHALLENGER NOR CHALLANGEE IS REQUIRED TO MAKE ANY PAYMENT, INCLUDING ANY DONATION. A PARTY WINNING A CHALLENGE IS NOT ENTITLED TO RECEIVE ANYTHING OF VALUE. A PARTY LOSING A CHALLENGE RISKS NO HARM BY DECIDING NOT TO MAKE A DONATION.
BUDGE POINTS HAVE NO TANGIBLE OR MARKET VALUE AND MAY NOT BE BOUGHT OR SOLD.
South Dakota, Nevada, Mississippi, Michigan, Kentucky, Wisconsin, Utah, Ohio, Hawaii, Washington, Arizona and Alaska, and the Northern Territory of Australia and South Australia. Users with addresses in these states and regions will not be permitted to create challenges within the Application.
You agree that you will not use the Application in any way that violates applicable federal, state, local or international law, or for any unlawful purpose. Budge reserves the right to terminate your access to and use of the Application if, in its sole discretion, your conduct violates any of the following prohibitions:
1. You may not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the Application or Budge’s computer systems and network.
2. You may not attempt to interfere with any other person’s or organization’s use of the Application.
3. You may not misrepresent your identity or impersonate any person.
4. You may not attempt to gain access to any account, computers or networks related to the Application without authorization.
5. You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by Budge in connection with the Application.
6. You agree that you will use this Application safely and responsibly and that you will neither make nor accept any challenge that calls for behavior that is unsafe or illegal. Budge will bear no liability for any loss, damage, injury, harm or death resulting from dangerous, illegal or irresponsible challenges.
By using the Application, you represent and warrant that you (i) 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) are not listed on any U.S. Government list of prohibited or restricted parties.
Relationship with Charities
Budge is a provider of mobile application technology. It does not solicit funds for charity or advise charities with respect to fundraising activities. Budge receives no payment or compensation from any charitable organization for any activity related to fundraising or otherwise. Budge is not a professional fundraiser or solicitor, a professional fundraising consultant or a commercial co-venturer under state laws, and you agree that you will not characterize it as such for any purpose.
You are free to select any charity on Budge’s Eligible Charities List to donate to, or suggest a new one to be added to the List. Budge does not recommend any one charity over the others.
Budge makes an effort to ensure that all organizations included in its Eligible Charities List are currently recognized by the Internal Revenue Service as exempt from taxation under section 501(c)(3) of the Internal Revenue Code and qualified to receive tax-deductible donations in the United States and is registered as a tax-exempt Non-profit in Australia. But Budge cannot provide personal tax advice, and urges you to consult with your tax advisor to determine whether your donation is deductible. Donation amounts that are potentially deductible should be calculated net of the Budge and third party processor charges described above.
Intellectual Property - License
Budge is the exclusive owner of all right, title and interest in the Application software and content. You are granted a limited, non-exclusive, non-transferable, revocable license to access the Application in strict accordance with this Agreement solely for the purpose of engaging in challenges and encouraging and making donations. The foregoing limited license shall not be construed as conferring any right in any copyright or other intellectual property right in the Application software or content.
Digital Millenium Copyright Act
Budge expressly prohibits the use of the Application for the illegal transmission of copyrighted material, and will respond if notified by content owners to prevent copyrighted material from being transmitted via the Application. In addition, Budge may disable individual accounts if these accounts are found to be illegally transferring copyrighted material.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Budge the written information specified below:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. A description of the copyrighted work that you claim has been infringed upon;
3. A description of where the material that you claim is infringing is located;
4. Your address, telephone number, and e-mail address;
5. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
For these purposes, and for the purpose of submitting any complaints or claims with respect to the Application, Budge can be reached at email@example.com.
Budge is in no way liable for loss of user data. By using the Application you acknowledge and agree that you will not hold Budge accountable for any technical errors, including loss of user files. BUDGE PROVIDES THE APPLICATION AND ITS SERVICES “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUDGE AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. BUDGE AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS AND AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. Some jurisdictions do not allow the limitation or exclusion of certain warranties or conditions, so some of the above might not apply to you.
Limitation of Liability
In the event that, notwithstanding the foregoing disclaimers and limitations, Budge is found responsible to any user for any reason whatsoever, Budge's responsibility shall be limited to the amounts actually paid to Budge by such user for use of the Application, and shall not include punitive damages or consequential or resulting damages of any nature.
You agree to indemnify, defend and hold harmless, Budge, its officers, directors, shareholders and affiliates, to, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from your use of the Application or from any violation of this Agreement by you.
Budge reserves the right to terminate your account or use of the Application with or without cause or notice, in its sole discretion. You may terminate your user account upon notice to Budge at any time. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
If any part of these terms and conditions are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the agreement shall continue in effect. A printed version of these terms and conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these terms and conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Budge may assign this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, or any part of it, to any other party. Any attempt by you to do so is void.
The failure of Budge to exercise or enforce any right or provision of the terms and conditions shall not constitute a waiver of such right or provision.
For Apple Product Users
In the event of any failure of the Budge Application to conform to any applicable warranty, you may notify Apple. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Budge Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
As between Apple and Budge, Budge is responsible for addressing any claims you may have relating to the Budge Application or your use of the Budge Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Budge Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
As between Apple and Budge, Budge will be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim that the Budge Application or its use infringes a third party’s intellectual property rights.
You and Budge acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms and conditions, and that, upon your acceptance of these terms of and conditions Apple will have the right (and will be deemed to have accepted the right) to enforce these terms and conditions as a third party beneficiary thereof.
You represent and warrant that you will comply with all applicable third party terms of agreement when using the Budge Application. For example, if you have a VoIP application, you will not be in violation of your wireless data service agreement when using the Budge Application.