Digital Gift Cards Terms and Conditions
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 not Upserve, is the issuer and administrator of purchased Digital Gift Cards, and purchases of Digital Gift Cards and 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 and redemption of Digital Gift Cards will be governed solely by the Restaurant’s gift card terms, which you are strongly encouraged to review prior to purchase. You acknowledge that Digital Gift Cards involve the inherent risk that the Restaurant may cease operations in the future or otherwise fails 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 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. 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 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 expect as provided herein. All rights not expressly granted 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 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; that Digital Gift Card services are or will be free of viruses or other harmful components; that Digital Gift Card services will meet your requirements; 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 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. Upserve does not have control of, or liability for, goods or services that are paid for using Digital Gift Cards.
4. Limitation of Liability. To the fullest extent permissible by law, in no event 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, or other intangible) arising out of any warranty, contract, negligence, tort or other action in connection arising out of use of, inability to use, performance of, or unavailability of the Digital Gift Card services. Notwithstanding the foregoing, in no event will Upserve be liable for any loss or damage that is not reasonably foreseeable.
5. Changes to Terms. Upserve may change these Terms from time-to-time without prior notice, and if we do so, the changes will be effective as soon as they are posted on Upserve’s website. 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.
6. Governing Law. These Terms and any disputes will be governed by and construed in accordance with the applicable laws of the State of Rhode Island without regard to its choice of law or conflicts of law principles. Each party irrevocably agrees that any legal action, suit or proceeding 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 in Providence, Rhode Island, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Providence, Rhode Island, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
7. 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.
8. 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 [email protected]
9. 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.