These Online Ordering Terms and Conditions(“Terms”) constitute a legal agreement between the individual (“you”) accessingthe online ordering services (“Services”) developed by Upserve and madeavailable to you by one of Upserve’s restaurant customers (“Restaurant”). Byaccessing and/or using the Services, or by clicking a box evidencing yourassent to these Terms, you agree to be bound by these Terms.
Please read these Terms carefully, as they limit Upserve’s liability to you andrequire you to resolve all Disputes with Upserve through binding individualarbitration. In doing so, you acknowledge and agree that you and Upserve arewaiving the right to a trial by jury and that you waive your right toparticipate as a plaintiff or class member in any purported class action orother representative proceeding.
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. Services.
Upserve is a technology company that develops and provides the Services to Restaurants in order to provide diners with the ability to order food, beverages, and related products and services (“Goods”) online for pick up and/or delivery. Restaurants operate independently of Upserve in the marketing, preparation, sale and delivery of Goods. Restaurants are required to comply with a variety of laws, rules, regulations and standards with respect to the marketing, preparation and sale of Goods (including, without limitation, food safety and menu disclosure). Due to the independent nature of the Restaurants, Upserve provides no guarantees to you regarding, and shall not be liable for, Restaurants’ compliance with applicable laws, rules, regulations and standards, the quality of Restaurants’ Goods, any representations made by Restaurants, or any ancillary services provided in connection with the Goods, such as delivery services that may be provided by a Restaurant. By voluntarily providing a telephone number and/or e-mail address in connection with your use of the Services, you agree that you may be contacted by telephone, SMS or e-mail, as applicable, at that telephone number and/or e-mail address, for the purpose of providing you with (a) notifications related to your order (for example, to notify you that your order is ready for pickup or out for delivery). Such order-related notifications are transactional and form part of the Services. You will receive promotional or marketing communications by telephone, SMS or e-mail only if you separately and expressly opt in to receiving them, and providing your telephone number or e-mail address is not a condition of placing an order. You may revoke consent to marketing SMS at any time by replying STOP or by any other reasonable means, and may unsubscribe from marketing e-mails at any time by following the directed prompts; Upserve will honor such requests promptly and will maintain records of consent. Standard data and message rates apply for SMS messages.Your use of the Services is also governed by Upserve’s Privacy Policy, which is incorporated into these Terms by reference and describes how Upserve collects, uses and shares information, including the payment, contact and account information you provide and the communications described above. You are encouraged to review the Privacy Policy before using the Services.
2. Account Creation and Security.
You may (but are not required to) create an account to store your information for future use of the Services, including your preferred payment method (“Account”). In order to create and maintain an Account, you must maintain a valid payment method and accurate, current and complete information. You are fully responsible for maintaining access to, and the security and confidentiality of, your Account, including, but not limited to, the associated username and password. You are responsible for Purchases of Goods occurring on or through the Services (“Purchases”) that are authorized by you or that result from your failure to maintain the security of your Account and credentials. Nothing in these Terms limits or waives any rights you may have under applicable law, or under the rules of your payment card network or card issuer, with respect to unauthorized transactions. Upserve has no obligation to verify the identity of any person gaining access to the Services by means of an Account. In the event that you suspect or discover a compromise in the security of your Account, including unauthorized use, you should immediately take all necessary steps to prevent such compromise, and immediately notify Upserve.
3. Purchase of Goods.
The Restaurant from which you order through the Service is the seller of the Goods, and independently sets pricing for the Goods, and the payment transaction with respect to Goods ordered will be solely between you and the Restaurant. With respect to a given order, a Restaurant may charge you for the identified cost of the Goods, applicable taxes, gratuities and a delivery fee (as applicable). Upserve may separately charge you a service fee for facilitation of the order (which is explicitly in consideration of such facilitation of the order through the Services, and not in exchange for the Goods). In each instance, the foregoing fees will be clearly presented to you prior to submitting an order, and by placing the order 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 in connection with submission of your order, which may require the pre-authorization of your payment method prior to purchase to verify that the payment method is valid and has available credit to facilitate the order. Restaurants are responsible for setting their cancellation and refund policies, and you will need to contact the Restaurant in the event you seek to cancel or change your order, or request a refund. Notwithstanding the foregoing, service fees charged in connection with the facilitation of an order are non-cancelable and non-refundable. Certain Restaurants may be permitted to provide for the ordering and delivery of alcohol. If you place an order including any alcohol, you represent and warrant that you are at least 21 years old. Upon delivery or pickup of your order, you will present government-issued identification acceptable to the Restaurant in accordance with applicable law. In no event will Upserve be responsible or liable to you or any other person with respect to any alcohol ordered by you from a Restaurant through the Services, or for a Restaurant’s non-compliance with applicable laws.
4. Use Restrictions.
By creating an Account, placing an order through the Services or otherwise using the Services, you agree: (a) to comply with these Terms and applicable laws, rules and regulations in connection with the Services; (b) not to use the 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 attempt to impersonate a third party; (e) not to avoid, bypass, or attempt to 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 the Services; (g) not to conduct any type of systematic retrieval of data or content from the Services; not to compile any database or directory from the Services; (h) not to engage in any criminal or tortious activity, including, without limitation, fraud, in using the Services; (i) not breach or attempt to breach the security of the Services or any network, servers, data, computers or other hardware or software relating to or used in connection with the Services, or any third-party that is hosting or interfacing with any part of the Services; (j) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Services, in whole or in part, for competitive purposes or otherwise; (k) in any way access or use the Services to directly or indirectly develop, promote, distribute, sell or support any product or service competitive with the Services; or (l) not to assist or permit any person in connection with any activity not compliant with 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 Services or any part thereof. You may terminate these Terms at any time by closing your Account or otherwise ceasing use of the Services. Upon any termination of these Terms by either you or Upserve: (a) you must immediately cease use of the 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) and 13 (Waiver and Severability), 14 (Notices) and 15 (Miscellaneous).
6. Intellectual Property.Upserve owns, or otherwise has license to, all intellectual property rights with respect to the Services, which may be protected by copyright, trademark, patent and/or other intellectual or proprietary rights and laws of the United States. 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 Services as expressly permitted by, and subject to, these Terms. Nothing within the Services should be interpreted as granting to you any license or right to use any of the materials (other than as provided herein) and/or third-party proprietary content included within the Services. Any rights not expressly granted within these Terms are reserved by Upserve and its licensors.
7. Disclaimer.
THE SERVICES AND ALL MATERIALS THEREIN 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 THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE OR WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT OR REPRESENT THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY AND QUALITY OF THE GOODS. UPSERVE RELIES UPON RESTAURANTS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND FOR THE GENERAL SAFETY OF THE GOODS, AND UPSERVE DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICES IS ACCURATE OR RELIABLE, INCLUDING, WITHOUT LIMITATION, MENUS AND NUTRITIONAL AND ALLERGEN INFORMATION, AND YOUR RELIANCE ON ANY RESTAURANT-PROVIDED INFORMATION WITHIN THE SERVICES IS SOLELY AT YOUR OWN RISK.
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), ARISING OUT OF ANY WARRANTY, CONTRACT, NEGLIGENCE, TORT OR OTHER ACTION IN CONNECTION WITH YOUR USE OF, INABILITY TO USE OR THE PERFORMANCE OF, THE 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 SERVICES, IF ANY, 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, FOR DEATH OR PERSONAL INJURY CAUSED BY UPSERVE’S NEGLIGENCE, 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 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 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 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 Service 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 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 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 State of Delaware 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 brought forward by a party (“Disputing Party”) 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 replaced with an enforceable provision that comes closest to expressing the intention of the unenforceable provision, and the remaining arbitration terms will be 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). Subject to and without waiver of the arbitration provisions herein, this Section 12 shall not preclude a Disputing Party from obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided, however, that any further relief shall be pursued by such Disputing Party through an arbitration proceeding under this Section 12.
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 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, and opting out will have no effect on any other provision of these Terms.
c. Procedure. Disputes will be resolved finally and exclusively by binding individual arbitration with a single neutral arbitrator (“Arbitrator”) and will be 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 shall control in the event of inconsistency). To begin an arbitration proceeding, Disputing Party must submit the Dispute by utilizing the forms available on the AAA Site, and simultaneously sending a copy of the completed form(s) to the other party. The arbitration will be conducted based upon written submissions unless the Disputing Party requests, or the Arbitrator determines, that a telephone or in-person hearing is necessary. In the event that an in-person hearing is requested or determined to be necessary, the hearing shall take place in the county of your residence. The Arbitrator shall be responsible for determining all threshold arbitrability issues. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The Arbitrator shall be required to issue a reasoned decision in writing. Payment of all filing, administration, Arbitrator and attorneys’ fees will be governed by the Rules of the AAA. All aspects of such arbitration proceeding, along with any decision, written decision and award will be subject to a confidentiality agreement, provided that nothing in these Terms prevents a party from disclosing information as required by law, to enforce or challenge an award, or in connection with a governmental or regulatory proceeding. 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. For the purposes of this Section 12, references to Upserve also includes its parent, subsidiary and affiliate entities, agents, employees, predecessors, successors and assigns, as well as authorized and unauthorized users of your Account.
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
