Effective Date: Sept 18, 2026
1. Definitions and Structure
These Upserve Customer Terms and Conditions (“Terms”) govern Merchant’s purchase and use of the point of sale software, hardware, payments processing arrangements, and related services (collectively, the “Services”) described in one or more order forms executed or accepted by Merchant (each, an “Order”). “Upserve” means Upserve, Inc., a Delaware corporation. “Merchant” means the legal entity identified on the Order. Each Order, together with these Terms and any documents expressly incorporated by reference, forms a single agreement (the “Agreement”). In the event of a conflict, the Order controls over these Terms.
Capitalized terms used but not defined in these Terms have the meanings given in the applicable Order.
2. Term and Renewal
The Agreement begins on the Subscription Start Date stated in the Order and continues for the Subscription Term stated in the Order (the “Initial Term”).
Upon expiration of the Initial Term, the Agreement will automatically renew for successive twelve (12) month periods (each, a “Renewal Term”) unless (i) Merchant gives written notice of nonrenewal (including by email to the address designated by Upserve) on or before the last day of the then current term, or (ii) Upserve gives written notice of nonrenewal at least thirty (30) days before the end of the then current term. If neither notice is given, the Renewal Term begins on the day after the then current term ends. Where applicable law requires that Merchant receive advance notice of an upcoming automatic renewal, Upserve will provide that notice within the time period and by the method the applicable law requires, and if Upserve fails to provide a legally required renewal notice, the affected renewal will continue on a month-to-month basis, terminable by Merchant on thirty (30) days written notice, rather than for a full Renewal Term.
Subscription and processing fees for any Renewal Term will be Upserve’s then current standard rates in effect at the start of that Renewal Term, and any discounts applicable during the Initial Term expire at the end of the Initial Term unless expressly renewed in writing. Upserve will give Merchant at least sixty (60) days written notice before the start of any Renewal Term of the rates that will apply to that Renewal Term.
3. Subscription and License
Subject to the Agreement and payment of all fees, Upserve grants Merchant a limited, nonexclusive, nontransferable, nonsublicensable right during the term to access and use the software identified in the Order, solely for Merchant’s internal business operations at the licensed location or locations.
Merchant shall not (i) copy, modify, or create derivative works of the software, (ii) reverse engineer, decompile, or disassemble the software except to the extent this restriction is prohibited by law, (iii) rent, lease, resell, or provide the software to any third party, (iv) use the software to build a competing product, or (v) circumvent usage or location limits stated in the Order.
4. Fees, Payment, and Taxes
Merchant shall pay all fees stated in the Order. Recurring fees are billed monthly in advance; one-time fees are billed upon execution of the Order or delivery, as applicable. Merchant authorizes Upserve to collect all amounts due by debit from Merchant’s designated bank account or settlement funds, or by charge to Merchant’s payment method on file.
Amounts not paid when due bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law, and Merchant is responsible for reasonable costs of collection. All fees are exclusive of taxes; Merchant is responsible for all applicable sales, use, and similar taxes, other than taxes on Upserve’s income.
Except as expressly provided in the Agreement, all fees are noncancellable and nonrefundable.
In any action or proceeding brought by Upserve to collect amounts owed under the Agreement, Upserve shall be entitled to recover its reasonable attorneys' fees and costs if it prevails. Except as stated in this paragraph, each party shall bear its own attorneys’ fees and costs in any dispute arising out of or relating to the Agreement.
5. Payments Processing
Payments processing services are governed by the merchant processing application and agreement presented to Merchant (the “Processing Agreement”), however titled, which is a separate agreement among Merchant and the parties identified in it. Payments processing services are provided through Upserve’s payment processing partners and sponsoring bank as identified in Upserve’s then current merchant disclosures, which Upserve may update from time to time upon notice as those relationships change.
Merchant shall comply with the Processing Agreement, the operating rules and regulations of the applicable card networks, and the Payment Card Industry Data Security Standards, in each case as amended from time to time. Chargebacks, reserves, and settlement are governed by the Processing Agreement.
If any discount or pricing in the Order is conditioned on Merchant’s use of Upserve Payments, the consequences of Merchant’s failure to begin or continue processing are set forth in the Order and in Section 10 (Early Termination Fee).
6. Hardware
Title to purchased hardware passes to Merchant upon delivery and payment in full; risk of loss passes upon delivery. Hardware is subject to the manufacturer’s warranty; all hardware defects or failures should be reported to Upserve support. For defects reported within one (1) year of delivery of the affected unit, Upserve will repair or replace the unit at no charge. Thereafter, Upserve will facilitate any available manufacturer warranty coverage. EXCEPT AS STATED IN THIS SECTION AND IN THE ORDER, HARDWARE IS PROVIDED WITHOUT FURTHER WARRANTY BY UPSERVE.
Hardware or implementation services provided at a discount or free of charge are conditioned on the minimum processing and usage commitments stated in the Order, and early cessation is addressed in Section 10 (Early Termination Fee).
7. Implementation and Support
Upserve will provide the installation, configuration, training, and support services identified in the Order. Upserve may use qualified subcontractors and installation partners, and Merchant authorizes Upserve to share Merchant information with, and grant account access to, such partners for that purpose. Scheduling, cancellation windows, and cancellation fees for service appointments are as stated in the Order.
Support is provided during Upserve’s published support hours through Upserve’s published channels. Upserve may perform maintenance that temporarily interrupts the Services and will use commercially reasonable efforts to schedule planned maintenance outside peak restaurant hours.
8. Merchant Data and Privacy
As between the parties, Merchant owns the transaction, menu, employee, and guest data that Merchant submits to or generates through the Services (“Merchant Data”). Merchant grants Upserve a nonexclusive, worldwide, royalty free license to host, process, transmit, and display Merchant Data to provide the Services, to comply with law, and to create aggregated or deidentified data that does not identify Merchant or any individual, which Upserve may use for any lawful purpose, including improving its products.
Each party shall comply with applicable privacy and data protection laws in its performance under the Agreement. Merchant is responsible for providing any notices to, and obtaining any consents from, its own employees and guests that are required for Upserve’s processing of Merchant Data as described in the Agreement. Upserve maintains administrative, technical, and physical safeguards designed to protect Merchant Data, and will notify Merchant of any security breach affecting Merchant Data as required by applicable law.
9. HQ Analytics Products
If Merchant’s Order includes any Upserve HQ analytics product (Core, Pro, or Pro Plus), the following applies. The HQ products provide analytics, reporting, and benchmarking features drawing on Merchant Data processed through the Services, with feature sets varying by tier as described in Upserve’s then current product documentation, and fees as stated in the Order. The license in Section 3, the data provisions in Section 8, and the ownership, warranty, indemnification, and liability provisions in Sections 13 through 16 apply to the HQ products, and benchmarking features use only aggregated or deidentified data consistent with Section 8. Merchant may export and use its own reports in the ordinary course of its business. Analytics outputs are informational tools; Merchant remains responsible for its own business decisions.
10. Early Termination Fee
The parties acknowledge that Upserve’s pricing, including any discounts on subscription fees, hardware, and implementation services, is established in reliance on Merchant’s commitment for the full then current term, and that Upserve’s losses from early termination would be difficult to calculate precisely. The Early Termination Fee is a genuine and reasonable pre estimate of those losses and is not a penalty.
If the Agreement or any Order is terminated before the end of the then current term by Merchant for convenience, or by Upserve for Merchant’s uncured breach, Merchant shall pay, within thirty (30) days of the effective date of termination, an Early Termination Fee equal to the sum of: (a) all accrued and unpaid fees for products and services delivered through the termination date; (b) the recurring subscription fees that would have become due from the termination date through the end of the then current term; (c) the Unamortized Discount Value; and (d) the Payments Component. “Payments Component” means the average monthly payments processing revenue earned by Upserve from Merchant’s processing during the twelve (12) full months preceding the termination date (or, if shorter, the period since the Subscription Start Date), multiplied by the number of months remaining in the then current term. For a termination effective during a Renewal Term of twelve (12) months or longer, the amounts described in clauses (b), (c), and (d) are reduced by fifty percent (50%). If any component of the Early Termination Fee is held unenforceable, that component shall be severed and the remaining components shall be enforced to the fullest extent permitted, the parties intending each component to be independent.
“Unamortized Discount Value” means the aggregate dollar value of all discounts on hardware and implementation services stated in the Order, multiplied by a fraction, the numerator of which is the Recovery Period minus the number of full months elapsed from the Subscription Start Date through the termination date (but not less than zero), and the denominator of which is the Recovery Period. “Recovery Period” means the number of months in the Initial Term or twenty-four (24), whichever is longer. For clarity, the recoverable discount value declines ratably each month and reaches zero at the end of the Recovery Period.
The Early Termination Fee is in addition to, and not in lieu of, amounts owed under the Processing Agreement, and does not limit Upserve’s remedies for Merchant’s breach of Sections 3, 8, 12, or 13.
11. Termination and Suspension
Either party may terminate the Agreement or any Order for material breach if the breach is not cured within thirty (30) days after written notice. Upserve may terminate immediately upon written notice if Merchant becomes insolvent, makes an assignment for the benefit of creditors, or is subject to bankruptcy or receivership proceedings that are not dismissed within sixty (60) days.
Upserve may suspend the Services upon notice if Merchant’s account is more than fifteen (15) days past due, if required by a card network, sponsoring bank, or processor, or if Merchant’s use poses a security risk or violates law. Upserve will restore suspended Services promptly after the cause of suspension is resolved. Suspension does not relieve Merchant of its payment obligations.
Upon expiration or termination, Merchant’s access to the software ceases, and each party shall pay all amounts accrued. For thirty (30) days after termination, Upserve will make Merchant Data available for export in a commonly used format upon Merchant’s written request, after which Upserve may delete Merchant Data except as retained in ordinary course backups or as required by law.
12. Confidentiality
Each party (the “Receiving Party”) shall protect the nonpublic business, technical, and financial information of the other party (the “Disclosing Party”) with at least the care it uses for its own similar information, and no less than reasonable care, shall use it only to perform under the Agreement, and shall not disclose it except to employees, advisors, and contractors who need to know it and are bound by confidentiality obligations at least as protective. These obligations do not apply to information that is or becomes public through no fault of the Receiving Party, was known without restriction before disclosure, is independently developed, or is rightfully received from a third party. A Receiving Party may disclose Confidential Information to the extent required by law or legal process, with prompt notice to the Disclosing Party where legally permitted.
13. Intellectual Property
Upserve and its licensors own all right, title, and interest in and to the Services, the software, and all related intellectual property, including all improvements and derivative works. No rights are granted to Merchant other than the limited rights expressly stated in the Agreement. If Merchant provides suggestions or feedback regarding the Services, Upserve may use them without restriction or obligation.
Merchant grants Upserve the right to use Merchant’s name and logo to identify Merchant as a customer in Upserve’s marketing materials, unless Merchant opts out by written notice.
14. Warranties and Disclaimer
Each party represents that it is duly organized and has the authority to enter into the Agreement, and that the person executing the Order on its behalf is authorized to do so. Upserve warrants that the Services will be provided in a professional and workmanlike manner materially in accordance with the Agreement.
EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” AND UPSERVE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. UPSERVE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND IS NOT RESPONSIBLE FOR THIRD PARTY NETWORKS, INTERNET CONNECTIVITY, OR CARD NETWORK OR PROCESSOR OUTAGES BEYOND ITS REASONABLE CONTROL.
15. Indemnification
Upserve shall defend Merchant against any third party claim alleging that the software, as provided by Upserve and used in accordance with the Agreement, infringes a United States patent, copyright, or trademark, and shall pay damages finally awarded or amounts agreed in settlement. If such a claim is made or appears likely, Upserve may modify or replace the software or, if neither is commercially reasonable, terminate the affected Order and refund prepaid, unused fees. This Section states Upserve’s entire liability for infringement claims.
Merchant shall defend Upserve against any third party claim arising out of (i) Merchant Data, including menu content and guest communications, (ii) Merchant’s use of the Services in violation of the Agreement or law, or (iii) Merchant’s products, food, services, or premises, and shall pay damages finally awarded or amounts agreed in settlement.
The indemnified party shall give prompt notice, reasonable cooperation, and sole control of the defense and settlement to the indemnifying party, provided that no settlement imposing obligations on the indemnified party may be made without its consent, not to be unreasonably withheld.
16. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS, MERCHANT’S PAYMENT OBLIGATIONS, A PARTY’S BREACH OF SECTION 12 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT: (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, OR DATA, EVEN IF ADVISED OF THE POSSIBILITY; AND (B) EACH PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY MERCHANT UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
THE LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS, IN WHICH CASE THE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED.
17. Notices
Notices to Merchant may be given by email to the address associated with Merchant’s account, by in product message, or by mail to the address on the Order, and are effective upon sending (for email and in product messages) or three (3) days after mailing. Merchant is responsible for keeping its contact information current.
Notices to Upserve must be sent to: Upserve, Inc., Attn: Legal Department, 2000 Avenue of the Stars, Suite 810-N, Los Angeles, California 90067, with a copy by email to legal@upserve.com, and are effective upon receipt.
18. Amendments
Upserve may amend these Terms upon at least thirty (30) days written notice, given by email, in product message, or posting to Upserve’s website with email notification. Amendments take effect on the date stated in the notice, and Merchant’s continued use of the Services after the effective date constitutes acceptance.
If an amendment materially and adversely affects Merchant, Merchant may terminate the affected Order without an Early Termination Fee by written notice given before the amendment’s effective date, in which case the unamended Terms govern through the termination date. Amendments do not apply retroactively, and fee changes are governed by Section 2 (Term and Renewal).
19. Assignment
Merchant may not assign the Agreement without Upserve’s prior written consent, not to be unreasonably withheld, except that Merchant may assign the Agreement to a successor in a merger or sale of substantially all assets, or, as to a given Order, to a purchaser of the restaurant location or locations covered by that Order, in each case upon written notice, provided the successor is not a competitor of Upserve and executes Upserve’s standard assumption agreement. An assignment becomes effective upon the assignee’s execution of that assumption agreement, at which point the assignor is released from obligations arising after the effective date of the assignment. Upserve may assign the Agreement to an affiliate or in connection with a merger, financing, or sale of assets. The Agreement binds and benefits the parties and their permitted successors and assigns.
20. Governing Law and Dispute Resolution
The Agreement is governed by the laws of the State of Delaware, without regard to conflict of law principles.
Any dispute arising out of or relating to the Agreement that the parties cannot resolve informally within thirty (30) days shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules before a single arbitrator.
The arbitration shall be conducted in English; hearings may be held by videoconference or, if in person, in the state of Merchant’s principal place of business, unless the parties agree otherwise. For clarity, no in-person hearing is required unless ordered by the arbitrator. The parties shall pay all arbitration fees and deposits when due under the applicable rules. Judgment on the award may be entered in any court of competent jurisdiction.Either party may (i) bring an individual claim in small claims court in lieu of arbitration, and (ii) seek temporary injunctive relief in a court of competent jurisdiction to protect its intellectual property or confidential information pending arbitration.
EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT DISPUTES WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. If the class waiver is held unenforceable as to a particular claim, that claim, and only that claim, shall proceed in court.
21. Force Majeure
Neither party is liable for delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including acts of God, natural disasters, epidemics, labor disputes, utility or internet failures, card network or processor outages, acts of government, or acts of war or terrorism, provided the affected party uses reasonable efforts to resume performance.
22. General
The Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements and understandings. No purchase order or similar Merchant document will modify the Agreement, even if accepted or processed. A waiver is effective only if in writing and signed by the waiving party, and no failure to enforce a provision waives it. If any provision is held unenforceable, it will be modified to the minimum extent necessary and the remainder will continue in effect.
The parties are independent contractors. There are no third party beneficiaries to the Agreement. Sections that by their nature should survive termination survive, including Sections 4, 8, 9, 10, and 12 through 22. The Agreement may be executed and delivered electronically, and electronic signatures and acceptances (including execution of an Order by electronic signature or by providing payment information as described in the Order) are valid and binding.
