These Digital Gift Card Terms and Conditions (“Terms”) constitute a legal agreement between Upserve, Inc. (“Upserve”) and the individual (“you”) accessing or purchasing the digital gift card services (“Digital Gift Cards”) made available to you by one of Upserve’s restaurant customers (“Restaurant”). By accessing, purchasing 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.
Please read these Terms carefully, as they limit Upserve’s liability to you and require you to resolve all Disputes with Upserve through binding individual arbitration. In doing so, you acknowledge and agree that you and Upserve are waiving the right to a trial by jury and that you waive your right to participate as a plaintiff or class member in any purported class action or other representative proceeding.
1. Digital Gift Cards.
You acknowledge that the Restaurant, and not Upserve, is the issuer and administrator of purchased Digital Gift Cards, and that the purchase of a Digital Gift Card is a transaction solely between you and the Restaurant. Restaurant, and not Upserve, is responsible for providing goods or services and support with respect to Digital Gift Cards. Use, redemption, expiration, fees, and any dormancy or unclaimed-property (escheat) treatment of Digital Gift Cards are governed solely by the Restaurant’s gift card terms, which you are strongly encouraged to review prior to purchase, and which the Restaurant is responsible for maintaining in compliance with applicable federal and state law. You acknowledge that Digital Gift Cards involve the inherent risk that the Restaurant may cease operations in the future or otherwise fail to honor the Digital Gift Card. You acknowledge and agree that Upserve has no obligation to prevent, and bears no liability for, any service failure, fraud or loss associated with your purchase or use of Digital Gift Cards from Restaurants. Upserve specifically disclaims all liability of any kind arising out of or relating to your purchase or use of Digital Gift Cards.
2. Purchase of Digital Gift Cards.
The Restaurant is the issuer and seller of the Digital Gift Card and independently sets the value, pricing, and terms (including expiration, if any) of the Digital Gift Card, and the payment transaction for the Digital Gift Card will be solely between you and the Restaurant. Upserve may separately charge you a service fee for facilitating the purchase (which is explicitly in consideration of such facilitation through the Digital Gift Card services, and not in exchange for the Digital Gift Card or any goods or services). Any such fees will be clearly presented to you prior to submitting your purchase, and by completing the purchase you agree to pay all such fees. Both the Restaurant and Upserve will charge, and you authorize both the Restaurant and Upserve to charge, the payment method specified by you, which may require pre-authorization of your payment method to verify that it is valid and has available credit to facilitate the purchase. Restaurants are responsible for setting their cancellation and refund policies with respect to Digital Gift Cards, and you will need to contact the Restaurant in the event you seek to cancel or change a purchase or request a refund. Notwithstanding the foregoing, any service fee charged by Upserve in connection with the facilitation of a purchase is non-cancelable and non-refundable.
3. Accounts and Security.
To the extent the Digital Gift Card services allow you to create or use an account, you must provide and maintain accurate, current and complete information and are responsible for maintaining the security and confidentiality of your account credentials. You are responsible for authorized activity occurring through your account. In the event you suspect or discover any unauthorized use of your account, you should immediately take steps to prevent further use and promptly notify Upserve. Nothing in these Terms limits or waives any rights you may have under applicable law with respect to unauthorized transactions.
4. Use Restrictions.
By purchasing or otherwise using the Digital Gift Card services, you agree: (a) to comply with these Terms and applicable laws, rules and regulations; (b) not to use the Digital Gift Card services for any purpose not expressly permitted herein; (c) not to access the services through a third party’s account without the express permission of the account holder; (d) not to impersonate any third party; (e) not to avoid, bypass, or circumvent any technological measures implemented to protect the services or otherwise attempt to gain unauthorized access to any part of the services or an account; (f) not to use the services in any manner that could damage, disable or impair them; (g) not to engage in any criminal or tortious activity, including, without limitation, fraud, in using the services; and (h) not to assist or permit any person in connection with any of the foregoing.
5. Termination.
Your failure to comply with these Terms will result in automatic termination without notice. Upserve may, in its sole discretion, modify, suspend or discontinue, at any time and without notice, the Digital Gift Card services or any part thereof. Upon any termination of these Terms: (a) you must immediately cease use of the Digital Gift Card services; and (b) any provisions of these Terms which by their nature govern post-termination rights and obligations shall survive, including, without limitation, Sections 5 (Termination), 7 (Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), 11 (Governing Law), 12 (Binding Individual Arbitration), 13 (Waiver and Severability), 14 (Notices) and 15 (Entire Agreement). Termination does not affect the validity or redemption of any Digital Gift Card already issued, which continues to be governed by the Restaurant’s gift card terms.
6. Intellectual Property.
Upserve owns, or otherwise has license to, all intellectual property rights with respect to the Digital Gift Card services, which may be protected by copyright, trademark, patent and/or other intellectual or proprietary rights and laws. Subject to your compliance with these Terms, Upserve grants to you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Digital Gift Card services as expressly permitted by, and subject to, these Terms. Nothing within the Digital Gift Card services should be interpreted as granting to you any license or right of use except as provided herein. All rights not expressly granted within these Terms are reserved by Upserve and its licensors.
7. 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 FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UPSERVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UPSERVE DOES NOT WARRANT OR GUARANTEE THAT THE DIGITAL GIFT CARD SERVICES WILL BE ACCURATE, RELIABLE, CORRECT, SECURE, UNINTERRUPTED AND/OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE DIGITAL GIFT CARD SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UPSERVE HAS NO OBLIGATION TO PREVENT, AND BEARS NO LIABILITY FOR, ANY SERVICE FAILURE, FRAUD OR LOSS ASSOCIATED WITH YOUR PURCHASE OR USE OF DIGITAL GIFT CARDS FROM RESTAURANTS. UPSERVE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY RESTAURANTS, AND DOES NOT HAVE CONTROL OF, OR LIABILITY FOR, GOODS OR SERVICES THAT ARE PAID FOR USING DIGITAL GIFT CARDS.
8. Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL UPSERVE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE OR PROFIT, OR GOODWILL), ARISING OUT OF ANY WARRANTY, CONTRACT, NEGLIGENCE, TORT OR OTHER ACTION IN CONNECTION WITH YOUR PURCHASE OR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF, THE DIGITAL GIFT CARD SERVICES, EVEN IF UPSERVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL UPSERVE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO A RESTAURANT AND UPSERVE THROUGH THE DIGITAL GIFT CARD SERVICES DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LOSSES OR DAMAGES; OR (B) $500.00. NOTHING IN THESE TERMS EXCLUDES OR LIMITS UPSERVE’S LIABILITY FOR FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. The parties agree that Sections 7 (Disclaimer) and 8 (Limitation of Liability) are material bargained-for bases of the parties’ agreement and that they have been duly considered in determining the consideration to be given by each party hereunder, and are fair and reasonable.
9. Indemnification.
You agree to indemnify and hold harmless Upserve and its officers, directors, employees, agents and affiliates from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including, without limitation, attorneys’ fees and expenses, that may be incurred arising out of, relating to, or resulting from: (a) your misuse of the Digital Gift Card services; (b) your breach of these Terms; or (c) your violation of any applicable laws, rules or regulations through or related to your use of the Digital Gift Card services. Upserve reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification, in which case you agree to fully cooperate with Upserve in asserting any available defense.
10. Changes to Terms.
Upserve may change these Terms from time-to-time. Upserve will provide notice of any material change by email or through a conspicuous notice within the Digital Gift Card services, and the change will be effective when posted (or on any later date stated in the notice). Where a change materially affects the binding arbitration provisions, the limitation of liability, or fees, Upserve will present the updated Terms for your affirmative acceptance before the change applies to you. By continuing to access the Digital Gift Card services following changes to these Terms, you agree to be bound by the updated Terms, and if you do not agree to be bound, your sole remedy is to immediately cease accessing the Digital Gift Card services. Notwithstanding the foregoing, unless the parties agree otherwise in writing, any such changes to the Terms will not apply to you to the extent that: (a) the changes concern matters which are the subject of an actual dispute between you and Upserve as of the date such changes take effect; and (b) Upserve has actual notice of such dispute as of the date such changes take effect.
11. Governing Law.
These Terms and any disputes will be governed by and construed in accordance with the applicable laws of the State of Delaware without regard to its choice of law or conflicts of law principles. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the binding individual arbitration provisions herein must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts located in the State of Delaware and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts located in the State of Delaware generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Nothing in these Terms requires you to waive any non-waivable right or protection afforded to you under the consumer-protection laws of your state of residence.
12. Binding Individual Arbitration.
a. Arbitration. Except as specifically stated within these Terms, you and Upserve agree that any and all disputes or claims that may arise between you and Upserve arising out of or in any way relating to these Terms or the Digital Gift Card services (“Dispute”) shall be resolved exclusively through final and binding arbitration; provided, however, that you may assert qualifying individual claims regarding a Dispute in a small claims court in the county in which you reside and provided that such claims remain in small claims court and proceed only on an individual, non-class or non-representative basis. Any arbitration under these Terms will only be on an individual basis. Class arbitrations, class actions, representative actions and consolidation with other arbitrations are not permitted. Unless otherwise explicitly provided for herein, the parties waive any right to have their cases decided by a jury and waive any right to participate in a class action with respect to any Dispute. Any action or proceeding relating to any Dispute must commence within 1 year after the cause of action accrues, except where a longer period is required by applicable law. If any provision of this Section 12 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms enforced (provided, however, that in no event will there be a class or representative arbitration, and in the event that such is held to be unenforceable, the entirety of this Section 12 shall be null and void). This Section 12 shall not preclude a party from obtaining a temporary restraining order or preliminary injunction where such relief is appropriate.
b. Opt-Out. You may opt out of this Section 12 (Binding Individual Arbitration) by sending written notice of your decision to opt out to legal@upserve.com within 30 days after first accepting these Terms. Your notice must include your name and the email address associated with your use of the Digital Gift Card services. If you opt out within this period, neither you nor Upserve will be bound by the arbitration and class-action-waiver provisions of this Section 12. Opting out has no effect on any other provision of these Terms.
c. Procedure. Disputes will be resolved by binding individual arbitration with a single neutral arbitrator (“Arbitrator”) administered by the American Arbitration Association (“AAA”) pursuant to its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes, the Federal Arbitration Act (9 U.S.C. §§ 1-16) and this Section 12 (the terms of which control in the event of inconsistency). The arbitration will be conducted based upon written submissions unless the parties agree, or the Arbitrator determines, that a telephone or in-person hearing is necessary; any in-person hearing shall take place in the county of your residence. The Arbitrator shall determine all threshold arbitrability issues, and shall issue a reasoned written decision. Payment of all filing, administration and Arbitrator fees will be governed by the rules of the AAA. In the event that 25 or more similar demands for arbitration are filed against Upserve by or with the assistance of the same or coordinated counsel, the parties agree that the demands may be administered in batches and resolved on a bellwether basis to promote the efficient and fair resolution of such Disputes.
13. Waiver and Severability.
Any waiver by Upserve of any provision of these Terms must be in writing. Unless otherwise provided for herein, if any provision of these Terms are determined to be invalid or unenforceable under applicable law, then such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
14. Notices.
Any notice or other communication required or permitted under these Terms shall be in writing and will be deemed to have been given: (a) upon receipt by personal delivery, delivery by overnight courier with signature acknowledgment of receipt or delivery by certified mail; or (b) immediately if sent by email. Unless otherwise provided for herein, all notice to Upserve shall be directed to Upserve via email to legal@upserve.com.
15. Entire Agreement.
These Terms are the complete and exclusive statement of the mutual understandings of the parties with respect to its subject matter and supersedes and overrides all prior agreements. Notwithstanding the foregoing, the Restaurant’s gift card terms govern the use, redemption and expiration of Digital Gift Cards, and in the event of a conflict between these Terms and the Restaurant’s gift card terms with respect to such matters, the Restaurant’s gift card terms will control.
