These Digital Gift Card Terms and Conditions (“Terms”) constitute a legal agreement between Upserve, Inc. (“Upserve”) and the individual (“you”) accessing the digital gift card services (“Digital Gift Cards”) made available to you by one of Upserve’s restaurant customers (“Restaurant”). By accessing and/or using the Digital Gift Card services, or by clicking a box or submission button evidencing your assent to these Terms, you agree to be bound by these Terms.
1. Digital Gift Cards. You acknowledge that the Restaurant, and notUpserve, is the issuer and administrator of purchased Digital Gift Cards, andpurchases of Digital Gift Cards and between you and the Restaurant. Restaurant,and not Upserve, is responsible for providing goods or services and support withrespect to Digital Gift Cards. Use and redemption of Digital Gift Cards will begoverned solely by the Restaurant’s gift card terms, which you are stronglyencouraged to review prior to purchase. You acknowledge that Digital Gift Cardsinvolve the inherent risk that the Restaurant may cease operations in thefuture or otherwise fails to honor the Digital Gift Card. You acknowledge andagree that Upserve has no obligation to prevent, and bears no liability for,any service failure, fraud or loss associated with your purchase of DigitalGift Cards from Restaurants. Upserve specifically disclaims all liability ofany kind arising out of or relating to your purchase or use of Digital GiftCards.
2. Intellectual Property. Upserve owns, or otherwise has license to, allintellectual property rights with respect to the Digital Gift Card services,which may be protected by copyright, trademark, patent and/or otherintellectual or proprietary rights and laws. Subject to your compliance withthese Terms, Upserve grants to you a limited, non-exclusive, non-transferable,non-sublicensable, and revocable license to access and use the Digital Giftservices as expressly permitted by, and subject to, these Terms. Nothing withinthe Digital Gift Card services should be interpreted as granting to you anylicense or right of use expect as provided herein. All rights not expresslygranted within these Terms are reserved by Upserve and its licensors.
3. Disclaimer. The Digital Gift Card services are provided “as is” and “as available”and without warranties of any kind, either express or implied. To the fullestextent permissible by applicable law, Upserve disclaims all warranties, expressor implied, statutory or otherwise, including, without limitation, the impliedwarranties of merchantability, fitness for a particular purpose andnon-infringement. Upserve does not warrant or guarantee that the Digital GiftCard services will be accurate, reliable, correct, secure, uninterrupted and/orerror-free; that defects will be corrected; that Digital Gift Card services areor will be free of viruses or other harmful components; that Digital Gift Cardservices will meet your requirements; You acknowledge and agree that Upservehas no obligation to prevent, and bears no liability for, any service failure,fraud or loss associated with your purchase of Digital Gift Cards fromRestaurants. Upserve does not warrant, endorse, guarantee, or assumeresponsibility for any product or service advertised or offered by Restaurants.Upserve does not have control of, or liability for, goods or services that arepaid for using Digital Gift Cards.
4. Limitation of Liability. To the fullest extent permissible by law, in noevent shall Upserve be liable for any direct, indirect, special, incidental,punitive, exemplary or consequential damages, or any loss or damages whatsoever(including, without limitation, loss of data, revenue or profit, goodwill, orother intangible) arising out of any warranty, contract, negligence, tort orother action in connection arising out of use of, inability to use, performanceof, or unavailability of the Digital Gift Card services. Notwithstanding theforegoing, in no event will Upserve be liable for any loss or damage that isnot reasonably foreseeable.
5. Changes to Terms. Upserve may change these Terms from time-to-time withoutprior notice, and if we do so, the changes will be effective as soon as theyare posted on Upserve’s website. By continuing to access the Digital Gift Cardservices following changes to these Terms, you agree to be bound by the updatedTerms, and if you do not agree to be bound, your sole remedy is to immediatelycease accessing the Digital Gift Card services. Notwithstanding the foregoing,unless the parties agree otherwise in writing, any such changes to the Termswill not apply to you to the extent that: (a) the changes concern matters whichare the subject of an actual dispute between you and Upserve as of the datesuch changes take effect; and (b) Upserve has actual notice of such dispute asof the date such changes take effect.
6. Governing Law. This Agreement is governed by the laws of the State of Delaware, without regard to its conflict-of-laws rules. Any suit or proceeding arising out of or relating to this Agreement shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if it lacks jurisdiction, the Superior Court of the State of Delaware or the U.S. District Court for the District of Delaware). Each party submits to the exclusive jurisdiction of those courts, waives any objection to venue or inconvenient forum, and waives any right to a jury trial.
7. Waiver and Severability. Any waiver by Upserve of any provision of theseTerms must be in writing. Unless otherwise provided for herein, if anyprovision of these Terms are determined to be invalid or unenforceable underapplicable law, then such provision will be changed and interpreted toaccomplish the objectives of such provision to the greatest extent possibleunder applicable law, and the remaining provisions will continue in full forceand effect.
8. Notices. Any notice or other communication required or permitted under theseTerms shall be in writing and will be deemed to have been given: (a) uponreceipt by personal delivery, delivery by overnight courier with signatureacknowledgment of receipt or delivery by certified mail; or (b) immediately ifsent by email. Unless otherwise provided for herein, all notice to Upserveshall be directed to Upserve via email to legal@upserve.com.
9. Entire Agreement. These Terms are the complete and exclusive statement ofthe mutual understandings of the parties with respect to its subject matter andsupersedes and overrides all prior agreements.
