Valid for Merchant Agreements executed on or after February 6, 2018 through August 31, 2018.
Effective January 1, 2020, Upserve is offering a Data Processing Addendum to the Master Subscription Agreement with respect to the processing of personal information under the California Consumer Privacy Act of 2018. If applicable to you, you may enter into the Data Processing Addendum by downloading a copy and following the included instructions. Once complete, the Data Processing Addendum will supplement the terms of your Master Subscription Agreement.
The Breadcrumb services, devices, websites, and software, including mobile applications (collectively, the “Service” or “Breadcrumb”) are provided to you, the merchant (“Merchant”, “you”, or “your”), by Breadcrumb by Upserve Inc and its parent and affiliated companies (collectively “we”, “us”, “our”, or “Breadcrumb”).
Your use of the Service is subject to and governed by this Breadcrumb Merchant Agreement (“Merchant Agreement”) and the terms of any Breadcrumb Subscription Order Form (“Order Form”) that you entered into that specifically references this Merchant Agreement (collectively, the “Agreement”). We reserve the right to update and change the terms of this Agreement from time to time in our sole discretion, We will provide you with notice by updating this page and indicating the date of the update, so please check this page frequently for updates and changes. We also may send you notice via e-mail to the address associated with your Account. You agree you will be bound by the terms fourteen (14) days after notice, and your continued use of the service fourteen (14) days after notice shall constitute acceptance of the new terms by you going forward. You expressly agree that this notice protocol is sufficient and adequate for purposes of providing you notice of the revisions to this Agreement. If you refuse to be bound by the new terms, we reserve the right to terminate your Account and access to the Services in accordance with the termination provisions in Section 6. Any updates or changes made to this Agreement will not apply to you to the extent that: (1) the changes concern matters which are the subject of an actual dispute between you and Breadcrumb as of the date the changes take effect; and (2) we have actual notice of the dispute as of the date the changes take effect. The changes will not impact transactions that precede the date of the update.
2. Account Creation, Activation and Security
You must create and activate a subscription account with Breadcrumb to receive the Service (“Account”). In order to create an Account, you must register and maintain a valid payment card or bank account to pay the monthly fee for the Service and provide information about your business, any authorized employees and other users, and any other data elements required by Breadcrumb. If you participate in a Visa Account Updater or MasterCard Automatic Billing Updater program, or other credit card service that permits the automatic updating of your card information in our recurring billing system, we may enable the updater service in connection with your account. Once you have an established Account, you are solely responsible for your configuration and use of the Service.
You are responsible for maintaining control over access to your Account, including the confidentiality of your Account log-in and password, and are responsible for all activities that occur on or through your Account, whether authorized by you or not. If you create an Account as an individual acting as a representative of a corporation or other legal entity which wishes to use the Service, then you represent and agree that you have the authority to accept the Agreement on behalf of such corporation or other legal entity, and that all provisions of the Agreement will bind that corporation or other legal entity as if it were named in place of you.
You may establish subordinate accounts (“Sub-Accounts”) for the benefit of authorized personnel – such as employees or independent contractors. Sub- Accounts will be attached to and associated with your Account. You acknowledge and agree that Breadcrumb offers this feature purely as a convenience to you, and that you are exclusively responsible for ensuring that any person permitted to access a Sub-Account will do so only on your behalf (not, for example, for the person’s own purposes or the benefit of third parties) and that such person fully complies with this Agreement. You are fully responsible for managing access to, and security and confidentiality of such Sub-Accounts and agree to immediately notify Breadcrumb of any unauthorized use of such Sub-Accounts or any other breaches of your Account’s security.
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME ALL LEGAL AND FINANCIAL RESPONSIBILITY FOR ACTIVITY THAT OCCURS UNDER OR THOUGH YOUR ACCOUNT, INCLUDING ANY SUB-ACCOUNTS. Breadcrumb shall not be liable to you or to any other party for any losses or damages of any kind that result from: (1) your establishment and/or use of Accounts or Sub-Accounts; (2) for any activity or inactivity that occurs under any such Sub- Accounts attached to your Account, OR (3) your Account management, mismanagement, or lack of management of any and all Sub-Accounts attached to your Account.
3. Offline Mode
You must maintain an Internet connection (“Connection”) to operate your Service, process credit and debit card transactions, and generally complete electronic transactions through your Service. If you temporarily lose your Connection, the Service may contain a feature that allows you to temporarily operate certain elements of the Service and maintain data relating thereto, such as accepting credit and debit cards and storing transaction and card information, to process transactions once your Connection is restored (“Offline Mode”). However, Offline mode contains inherent limitations. Offline Mode will not provide you with confirmation that a credit card transaction is authorized, approved, or declined until your Connection is restored. You must establish a Connection within forty-eight (48) hours of your Connection loss to (1) process card transactions collected during the loss, and (2) synchronize or execute any other Services that occurred during the loss that require a Connection. Offline Mode may not maintain Service, transaction or card information, or operate forty-eight (48) hours after the Connection loss. In addition, while in Offline Mode, you may not have access or use of certain Services that are normally available when you have a Connection. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL LEGAL AND FINANCIAL RESPONSIBILITY FOR ACTIVITY THAT OCCURS DURING OFFLINE MODE, INCLUDING TRANSACTIONS AND CARD PROCESSING. BREADCRUMB DOES NOT GUARANTEE OR ASSUME ANY LIABILITY FOR YOUR TRANSACTIONS IN CONNECTION WITH OFFLINE MODE THAT MAY BE DENIED AUTHORIZATION, DECLINED, REVERSED, CHARGED BACK, DAMAGED, OR LOST, OR YOUR CONNECTION, SERVICES, OPERATIONS, OR DATA IN CONNECTION WITH OFFLINE MODE THAT ARE INTERRUPTED, DAMAGED, OR LOST, REGARDLESS FOR THE REASON FOR, OR TIME OF, SUCH EVENT.
4. Third Party Equipment and Services
Breadcrumb’s core service functionality under this Agreement is to deliver the Service, which may require you to integrate third party services, software, and devices (“Third Party Services”) to more robustly capitalize on the Service’s functionality. Specifically, in order to use the Service, you must supply certain equipment and subscribe to various Third Party Services. You must have at least: (1) at least one Apple iPad® or iPhone® running the iOS version specified by Breadcrumb, (2) a working broadband Internet connection, (3) a secure wireless network available in all places within the venue where a Service-related device (including terminals as well as peripheral devices, such as any printers) will be used, (4) a valid merchant account (if you accept payment by credit and/or debit card) to process and receive card payments through Payments (defined below), and (5) an active Account. You agree that the foregoing Third Party Services require additional peripheral devices, fees, ancillary contracts, setup, configuration, and maintenance with third party service providers. Breadcrumb prohibits and disclaims the use of the Service on any device that is modified contrary to the manufacturer’s software or hardware guidelines and your use of any such modified device constitutes a violation of this Agreement and grounds for us to terminate your Account.
The Service is compatible with Breadcrumb’s payment processing service and other third-party payments processing services (“Payments”). Although portions of the Service are functional without Payments, you must sign up for a Payments account to access the full functionality of the Service. Unless otherwise agreed to in writing, the Service’s only role in payment processing is to transmit encrypted data between you and payment processors, such as the payment processing network, bank and their respective service providers. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE MAY BE SUBJECT TO THE TERMS OF YOUR AGREEMENTS WITH YOUR DEVICE MANUFACTURER(S), YOUR CARRIER, PAYMENTS, AND OTHER THIRD PARTY SERVICE PROVIDERS, AND THAT BREADCRUMB SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OF SERVICES, DAMAGES, INTERRUPTIONS, LOSS OF DATA INCLUDING TRANSACTION OR CARD INFORMATION, INCOMPATIBILITIES, OR DAMAGES OF ANY KIND ARISING FROM OR IN CONNECTION WITH YOUR USE OF THIRD PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY ISSUES WITH YOUR DEVICES, YOUR CARRIER, OR PAYMENTS, UNLESS OTHERWISE AGREED TO IN WRITING BY BREADCRUMB.
5. Hot Swap Program; Extended Warranty
- If any Covered Hardware Unit (defined below) is damaged and rendered unusable, Breadcrumb will ensure that you receive a new or refurbished replacement Covered Hardware Unit (each such Covered Hardware Unit, a “Replacement Part”) the next business day, subject to Breadcrumb receiving your replacement request by 3pm Pacific Daylight Time on the previous business day, and subject further to this Agreement (“Hot Swap Program”). The Hot Swap Program is only offered in connection with damage covered under the Covered Hardware Unit’s warranty and subject to any AirLift protection plan you purchase. The Hot Swap Program will not apply in incidents of accidental damage (absent an AirLift plan) and does not modify the terms of your warranty relating to the Covered Hardware Unit. “Covered Hardware Unit” means a single hardware unit that you purchase from our preferred third party reseller, 3MB, Inc. d/b/a Denali Advanced Integration (“Denali”), ordered on your behalf by Breadcrumb for use with the Service in conjunction with your Account. The Hot Swap Program is only available to current Account holders. It is available for each Covered Hardware Unit for a term of one (1) year from the date you purchase that Covered Hardware Unit. Your participation in the Hot Swap Program does not relieve you from any of your obligations under this Agreement, including payment of your Fees. You may be prohibited from participating in the Hot Swap Program if you repeatedly abuse the program, as determined by Breadcrumb at its sole discretion.
- Under the Hot Swap Program, Merchant must return to Denali each Covered Hardware Unit for which a Replacement Part was received within thirty (30) calendar days from receiving the Replacement Part using the return label enclosed with the Replacement Part. If Denali receives the Covered Hardware Unit after the thirty (30) calendar day return period, or does not receive it at all, Merchant acknowledges and understands that Breadcrumb incurs a charge equal to the retail price of the Replacement Part. As such, Breadcrumb will charge Merchant the retail price of the Replacement Part to recoup Breadcrumb’s cost.
- If you purchased a Covered Hardware Unit that requires servicing under the manufacturer’s warranty and you are no longer a Breadcrumb customer, you must contact the manufacturer for service. Breadcrumb provides the Hot Swap Program as a customer service offering to you. You acknowledge and agree that Breadcrumb is not the provider or administrator of the manufacturer warranty or the Extended Warranty, and agree not to pursue any claims against Breadcrumb in connection with the manufacturer warranty or the Extended Warranty.
- If Denali or the manufacturer determines that the Covered Hardware Unit is not covered by the manufacturer’s warranty following receipt of a Covered Hardware Unit from you under the Hot Swap Program, Merchant shall be solely responsible for the retail price of the Replacement Part, and Breadcrumb may charge Merchant the retail price of such Replacement Part.
6. Monthly Service Fee; Termination
You agree to pay the applicable monthly fees listed in your Agreement plus tax (“Fees”) to Breadcrumb or Breadcrumb authorized vendor (“Vendor”). Contracts that are paid as “Annual in Advance” will be billed each year of the term on the anniversary of the contract. The Fees and any additional charges Breadcrumb levies under this Agreement may be deducted from any remittance you receive or are entitled to receive from Breadcrumb under the Agreement, charged to your credit card on file, deducted from your bank account on file, or otherwise paid or offset in connection with your Account. In the event that your payment information cannot be verified, is invalid, is over-limit or is not otherwise acceptable, Upserve may, at its discretion, pass through to you any fees incurred by Upserve as a result of a rejected payment attempt (including, but not limited to, ACH rejection fees) in the exact amount as charged. Unless otherwise agreed to in writing, your first Fees will be charged to you no later than thirty (30) days after you enter into this Agreement. Subject to this Agreement, we reserve the right to change our Fees, the payment schedule, and collection method in our sole and absolute discretion. If we change our Fees, billing schedule, or collection methods, we will notify you through your Account thirty (30) days in advance of the change (“Fees Change Notice Period”). If you do not agree to the Fees change, you must promptly close your Account and discontinue use of the Service prior to the last day of the Fees Change Notice Period. By continuing to use the Service after the last day of the Fees Change Notice Period, you accept the new Fees structure in its entirety.
You are purchasing a 28-month license and are responsible for remitting payment to the Breadcrumb authorized vendor in which you have executed your Equipment Financing Agreement (“EFA”) for the length of your term with that vendor. At the end of the specified term in your EFA you will be responsible for ongoing monthly service fees equal to the amount on your EFA.
If you created an Account on a free-trial basis and did not convert to a paid Account, we will suspend your Account and notify you by sending an email to your registered email address. If you do not respond to our notice within thirty (30) days, (1) we will automatically close your Account; (2) we may, but are not required to, delete information associated with the Account; and (3) if you are using any devices acquired from Breadcrumb in connection with the free trial, and you have not returned these devices to Breadcrumb within thirty (30) days of our notice, we may charge you a fee equal to the retail value of the devices.
This Agreement becomes effective and binding on you when you create an Account. You may voluntarily terminate your Account at any time through the Account website or by contacting customer service at email@example.com. You acknowledge and agree that if you terminate your Account before the end of a 30-day subscription cycle, or such subscription cycle as may apply, you will still be charged for the entire cycle. You acknowledge and agree that Breadcrumb shall not be obligated to issue any refunds, whether full, prorated, or otherwise, if you voluntarily terminate your Account before the end of a subscription cycle, regardless of whether you notify Breadcrumb.
You have the option to purchase from our preferred third party reseller, Denali, a Meraki brand router and a yearly license for using the router with your Account and Service. The Meraki router offered by Denali will only work with a valid license. If you terminate your Account before the end of a 30-day subscription cycle, you acknowledge you will be charged the license fee up to and including the entire 30-day cycle. However, notwithstanding the above paragraph, you will receive a refund equal to a prorated amount of the license fee for the days remaining in the license beyond the 30-day cycle. Each Meraki router and yearly license you purchase from Denali for use with your Account and Service is subject to a separate charge and refund under these terms. You acknowledge you may keep the Meraki router upon termination, but the router will immediately cease to function and not work with your Account, the Service, or in any other capacity. To reinstate the router functionality and continue using it without access to your Account and Service, it is your responsibility to purchase a new router license from Meraki without the assistance of Breadcrumb. You acknowledge Breadcrumb makes no representations that such a router license will be available upon the termination of your account, and Breadcrumb is not responsible for and makes no representations regarding your use, the functionality, or the performance of the Meraki router after you terminate your Account.
You acknowledge and agree that Breadcrumb may terminate your access to the Service and your Account (including all attached Sub-Accounts): (a) if you breach or violate of any provision of this Agreement; (b) upon a request by law enforcement or other government agency; (c) upon your request to terminate your Account; (d) upon our decision to discontinue or materially modify all or any part of the Service or Payments; (e) upon the occurrence of technical or security issues as identified in Breadcrumb’s sole discretion; (f) if your use of the Service, whether through your Account or any Sub-Account or otherwise, is fraudulent or illegal; (g) for your non-payment of your Fees; (h) upon your violation of any other agreements you have with Breadcrumb; (i) for convenience upon sixty (60) days written notice; and/or (j) if we believe, in our sole discretion, that your continued use of the Service interferes with, is harmful to, or otherwise inconsistent with our business. If we terminate your access to the Service and/or your Account, we may, without limitation: (w) require you to return some or all of your devices and software acquired from Breadcrumb and pay a fee pursuant to the terms of this Agreement or any other agreement you have with Breadcrumb; (x) delete your Account and terminate your access to the Service and all information and features associated with your Account, unless otherwise agreed to in writing; (y) delete your password and all related information, files, and content associated with or inside your Account (or any part thereof); and (z) prohibit you from accessing the Service in the future through an alternative Account or otherwise. EXCEPT WITH RESPECT TO YOUR VOLUNTARY TERMINATION OF YOUR ACCOUNT, BREADCRUMB SHALL MAKE ALL TERMINATION DECISIONS IN ITS SOLE DISCRETION AND SHALL IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TERMINATION OF YOUR ACCOUNT OR ACCESS TO THE SERVICE, INFORMATION IN OR ASSOCIATED WITH YOUR ACCOUNT OR ANY SUB-ACCOUNT, OR FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING THEREFROM.
7. Service Features
- Sales Tax and Other Taxes. Breadcrumb currently provides a sales tax calculation and other tax field calculations in the Service purely as a convenience you. You acknowledge and agree that Breadcrumb is not obligated to continue providing this functionality, that such calculations cannot be relied upon as expert advice for U.S. state and federal sales and income tax purposes, or for like purposes in any other jurisdiction, where applicable, and that such calculations shall in no way be construed to be a substitute for a formal review of your financial statements by a Certified Public Accountant or other professional expert(s) to determine your sales tax or other tax liability. Breadcrumb shall in no event be liable to you or to any third party for any owed taxes or fees of any kind, or for any losses or damages of any kind related to your tax affairs, including any that relate to or utilize the tax field calculations in the Service. You acknowledge and agree that it is your sole responsibility in all circumstances to accurately input sales tax and other tax amounts, to appropriately apply sales tax and other tax to items, to apply the correct sales tax and other tax rates, and to consult with a Certified Public Accountant and/or other professionals and experts as necessary on tax-related matters.
- Consent to E-Mail Communications. You acknowledge and agree that Breadcrumb may send any and all notifications and communications (“Communications”) to the email address associated with your Account, and it is your responsibility to keep the e-mail address associated with your Account current, valid and active. YOU ACKNOWLEDGE AND AGREE THAT ALL SUCH COMMUNICATIONS SHALL BE DEEMED TO BE “IN WRITING”, THAT YOU SHALL READ ALL SUCH COMMUNICATIONS, AND THAT YOU SHALL MAINTAIN APPROPRIATE RECORDS OF SUCH COMMUNICATIONS, AND BREADCRUMB SHALL IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING FROM YOUR FAILURE TO MAINTAIN A CURRENT, VALID AND ACTIVE E-MAIL ADDRESS IN CONNECTION WITH YOUR ACCOUNT OR FAILURE TO READ E-MAIL MESSAGES SENT THERETO.
- Updates to Service. Breadcrumb may from time to time offer you updates and upgrades to its Service (“Updates”). The Updates may be critical or mandatory in nature and require you to download and install Updates in order to continue your access to the Service and your Account. Breadcrumb will attempt to give you reasonable notice of critical and mandatory Updates via Communications to the e-mail address or other contact information associated with your Account. IF YOU DO NOT DOWNLOAD AND INSTALL UPDATES, YOU AGREE BREADCRUMB SHALL IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INTERRUPTION, SUSPENSION OR TERMINATION OF YOUR ACCOUNT OR ACCESS TO THE SERVICE, INFORMATION ASSOCIATED WITH YOUR ACCOUNT OR ANY SUB-ACCOUNT OR FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING THEREFROM.
- Beta Testing. Breadcrumb may from time to time offer you the opportunity to participate in beta testing of new services, devices, software and features that have not been thoroughly tested for quality assurance. IF YOU ACCEPT AN OFFER BY BREADCRUMB TO PARTICIPATE IN ANY BETA TESTING, YOU AGREE THAT BREADCRUMB SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES OF ANY KIND THAT YOU MAY INCUR AS A RESULT OF SUCH PARTICIPATION, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF THIRD PARTY SERVICES, OR LOSS OR DAMAGES TO YOUR COMPUTER(S), MOBILE, PERIPHERAL, OR OTHER DEVICES, OR LOSS OR DAMAGE TO DATA, INCLUDING TRANSACTION OR CARD INFORMATION, ASSOCIATED WITH AND IN YOUR ACCOUNT. YOU HEREBY WAIVE AND RELEASE BREADCRUMB AND ITS AFFILIATES FROM ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS SECTION.
8. Technical Support
Breadcrumb will offer technical support with the Service, which may include, at our discretion, assistance with the setup of the Service and the peripheral hardware and software associated with certain features of the Service.
9. Content, Licenses and Ownership
“Customer Data” means all information about purchasers generated or collected by Breadcrumb, Upserve, Inc., or you through the Service, including, but not limited to, purchasers’ names, addresses, email addresses, phone numbers, purchaser preferences and tendencies, transaction information, card information, location, and reports and analytics relating thereto.
You shall immediately notify Breadcrumb if you become aware of or suspect any unauthorized access to or use of Customer Data or any confidential
information of Breadcrumb, and shall cooperate with Breadcrumb in the investigation of such breach and the mitigation of any damages. You will bear all associated expenses incurred by Breadcrumb to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in your reasonable possession or control. Upon termination or expiration of this Agreement, you shall, as directed by Breadcrumb, destroy or return to Breadcrumb all the Customer Data in your or any agent of yours possession. Notwithstanding, Breadcrumb will provide you with a record of your basic customer transaction information for up to the past year upon your request and in compliance with applicable law.
You grant to Breadcrumb and Upserve, Inc. a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) your business name, name, image, likeness, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text, menu items, and any other content provided, specified, recommended, directed, authorized or approved to use by you (collectively, “Merchant IP”); and (b) any third party’s business name, name, image, likeness, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text, menu items, and any other content provided, specified, recommended, directed, authorized or approved for use by you (collectively, “Third Party IP”), in each case in connection with the Service in all media or formats now known or hereinafter developed in order to provide and promote the Service, Breadcrumb’s business, and your business. (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Breadcrumb’s sole discretion.
We may also share the Merchant IP, Third Party IP, and certain Customer Data with third parties at your direction and to the extent we are legally allowed to share it; however, you agree that such use may be governed by your agreements with those third parties and Breadcrumb is not responsible for the use or treatment of such data by such third parties. If you instruct Breadcrumb to share such information with third parties, you agree to indemnify, defend, protect and hold Breadcrumb and its affiliates harmless from and against any and all third party damages, losses, claims and expenses, including but not limited to governmental penalties and reasonable attorneys’ fees, which may be asserted against or incurred by Breadcrumb or any affiliate arising out of or resulting from the sharing, use or ownership of such data.
You agree that you will not upload, submit or post any Merchant IP, Third Party IP or Customer Data to the Service through your Account or any Sub- Account unless you have created, hold a license to, or otherwise have permission to use and have the same transmitted, distributed, disseminated, displayed or performed through the Service, your Account or Sub-Accounts. You acknowledge and agree that any information you transmit through the Sites and Service may be read or intercepted by others, even if such information is encrypted, and that Breadcrumb is neither responsible nor liable for any such interception, or for any resulting loss or damage.
You acknowledge that we may collect and analyze information related to your interaction with and the operation of the Service, including, but not limited to, your time spent using the Service, browser types and language, Internet Protocol addresses, device-specific information, including your hardware model, operating system and version, unique device identifiers, mobile network information, information about the location of the device and the locations of our customers in relation to you and the device, the device’s interaction and performance with our Service and customers, peripheral hardware and other Third Party Services. We may also identify other software running in connection with the Service (but will not collect any content from such software) for anti-fraud and malware-prevention purposes (collectively, the “Application Usage Data”). As between you and Breadcrumb, Breadcrumb owns all right, title and interest in and to any and all Application Usage Data. As such, Breadcrumb may use such data for its own legitimate purposes and may share such data with third parties without notice to you.
10. Intellectual Property; Copyright; Trademarks
Breadcrumb reserves all rights not expressly granted to you in the limited license granted to you by this Agreement. The Service, their contents, Application Usage Data, Customer Data, and any products or services provided or sold by Breadcrumb or Upserve, Inc. are the property of Breadcrumb or Upserve, Inc., and are subject to the copyright or other intellectual property rights of the United States, and are protected by federal and state law (collectively, the “Upserve IP”). To the extent such rights do not vest in Breadcrumb and Upserve, Inc. by virtue of this Agreement, you hereby irrevocably assign to Upserve, Inc. all right, title, and interest in and to Upserve IP. Any unauthorized reproduction, modification, distribution, transmission, republication, display or performance of the Upserve IP is strictly prohibited. You agree that nothing on or in the Service shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any copyrighted property displayed on or in the Upserve IP without the prior written permission of the copyright owner.
Upon your agreement to be bound by the terms of the Agreement, Breadcrumb grants you a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use Breadcrumb’s point of sale software application, related Services and related Customer Data on a mobile computer, tablet computer, or other device, solely for the purposes permitted by that software and Service in accordance with the terms of the Agreement, and to make one copy of the software for back-up purposes. You shall not prepare any derivative work based on the Upserve IP or translate, reverse engineer, decompile or disassemble the Upserve IP. You shall not take any action to challenge or object to the validity of Breadcrumb and Upserve, Inc.’s rights in the Upserve IP, or Breadcrumb and Upserve, Inc.’s ownership or registration thereof.
Breadcrumb or Upserve, Inc. owns all rights in and to the trademarks, service marks, logos, trade names, domain names, and social media identifiers (“Trademarks”) used and displayed on or in connection with the Service, and you agree not to challenge, directly or indirectly, these entities’ use, ownership, or registration of the Trademarks. You agree that nothing on the Sites or in this Agreement shall be construed as granting, in any way, any license or right to use any such Trademarks. Breadcrumb’s name, the Breadcrumb logo and the other Breadcrumb-formative trademarks may not be used in any way without prior written permission from Breadcrumb or Upserve, Inc. Other product and company names mentioned on or in the Sites or Service may be the Trademarks of their respective owners.
11. Publicity and Feedback
By using the Service, you acknowledge and agree that Breadcrumb may display your business name or trademark on a customer list, whether on the Service or otherwise. You further acknowledge and agree that any ideas, suggestions, feedback, artwork, or other information or works (“Feedback”) that you make or develop in conjunction with your use of the Service or otherwise submit to Breadcrumb related to its business or the Service in any form, shall become the property of Breadcrumb. You irrevocably assign to Upserve all right, title, and interest in and to Feedback. Breadcrumb has no obligation to review any Feedback but may freely use, publicly disclose and/or redistribute any such Feedback in whole or in part, in any form for its commercial benefit, to improve the Service or for any other purpose and shall owe you no compensation of any kind (including, but not limited to, royalties) for any such Feedback.
12. Third-Party Websites
The Upserve IP may contain hyperlinks or other methods to access web sites or web pages operated by persons other than Breadcrumb (“Third-party Websites”). You acknowledge and agree that Breadcrumb provides links and access to Third-party Websites only as a convenience, and that the inclusion of any such link or access on the Upserve IP does not imply Breadcrumb’s endorsement of either the Third-party Websites, the organization operating such Third-party Websites, or any products or services of that organization. A visit to any Third-party Websites via any such link or access is done entirely at your own risk. You are solely responsible for determining the extent to which you may upload, download, submit, post or use any content at any Third-party Websites. Breadcrumb has no control over the content of Third-party Websites or the services and products available from Third-party Websites. You acknowledge and agree that Breadcrumb shall not be liable for any damages or losses of any kind caused by your submitting, posting to or use of Third-party Websites. Under no circumstances will Breadcrumb be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused in connection with the use of, or reliance on, any content, goods, or services available on any other Third-party Websites, or your submission or posting thereto. You assume full responsibility when you choose to follow any links or access that lead to Third-party Websites.
13. Disclaimer and Liability Cap
In addition to the specific limitations of liability and disclaimers throughout this Agreement, you acknowledge and agree that your use of the Upserve IP is at your own risk, and that everything in the Upserve IP is provided “as is” without warranty of any kind. Breadcrumb specifically disclaims any and all warranties and conditions of any kind, whether express or implied, including, but not limited to, (a) warranties of merchantability, fitness for a particular purpose, and non-infringement, (b) warranties or conditions arising through course of dealing, and (c) warranties or conditions of uninterrupted or error- free access or use. You acknowledge and agree that no advice, information, promises of Updates or features, or any communications from Breadcrumb, whether oral or written, shall create any warranty not expressly stated herein. You acknowledge and agree that Breadcrumb shall not be liable for any errors or omissions of any kind in the Upserve IP, for your action or inaction in connection with the Upserve IP, or for any losses or damages of any kind
that you may incur in connection with the Upserve IP, including, but not limited to, damage to your computer, devices, or loss of data including transaction information. You further acknowledge and agree that Breadcrumb shall not be liable for any direct, indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the use of the Upserve IP, the contents of the Upserve IP, the delay or inability to use the Upserve IP, or otherwise arising in connection with the Upserve IP, whether based on contract, tort, strict liability, or otherwise. Notwithstanding, the total sum Breadcrumb shall be liable for in connection with any claim for damages based upon or arising out of the Upserve IP or these Terms shall not exceed the Fees paid by Merchant in the three (3) month period preceding the incident upon which the claim or claims are based.
You acknowledge and agree that Breadcrumb assumes no responsibility, and shall not be liable for, any damages to your computer equipment or other property, whether caused by virus or otherwise, on account of your access to or use of the Upserve IP or your uploading or downloading of any materials, data, text, images, video, or audio to or from the Upserve IP.
You acknowledge and agree that no joint venture, partnership, employment or agency relationship exists between you and Breadcrumb solely as a result of your use of the Upserve IP.
You agree to indemnify, defend, and hold Breadcrumb and its parent, subsidiaries, affiliates, and their officers, directors, agents, and employees, harmless from and against any and all suits, actions, claims, demands, penalties, charges, costs, or losses of any kind, including, but not limited to, reasonable attorneys’ fees, made by or resulting from any third party due to or arising out of your use of the Upserve IP, negligence, breach of this Agreement or the materials it incorporates by reference, violation of any law, regulation, order or other legal mandate or rule, or the rights of a third party, or any other party’s access and/or use of the Upserve IP with your Account.
16. Force Majeure
You acknowledge and agree that Breadcrumb shall not be liable for any delay or failure to perform, including any disruptions or outages in the Service, resulting from causes outside the reasonable control of Breadcrumb, including without limitation Internet outages or interruptions, strikes, labor disputes, rebellions, revolutions, embargoes, earthquakes, fires, floods, wars, terrorism, riots, government sanctions, acts of God, acts of civil or military authorities, inability to secure raw materials, fuel, energy, labor, or transportation, and acts or omissions of carriers or suppliers.
This Agreement constitutes the entire agreement between you and Breadcrumb relating to the Service and supersedes any and all other agreements, oral or in writing, with respect to the Service. Notwithstanding, in the event of a conflict between these terms and the terms of another agreement you enter into with Breadcrumb or Breadcrumb’s affiliates, the terms that shall control are, in order from first to last, the Breadcrumb Payments Merchant User Agreement, the Order Form, and this Merchant Agreement. Our failure to insist upon strict compliance with any term of this Agreement shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision. You acknowledge and agree that Breadcrumb may, without notice to or consent from you, assign, transfer or convey this Agreement, whether by direct assignment, change of control, operation of law or other transaction, to any third party, successor in interest, related party or affiliate of Breadcrumb (“Transferee”), and that such Transferee may rely upon your representations and enforce your obligations under this Agreement. In contrast, this Agreement is personal to you, and you may not assign your rights or obligations to anyone.
In the event any of the terms or provisions of this Agreement shall be held to be unenforceable, the remaining terms and provisions shall be unimpaired and the unenforceable term or provision shall be replaced by such enforceable term or provision as comes closest to the intention underlying the unenforceable term or provision. Sections 2, 3, 4, 6 (to the extent Fees are due but unpaid), and 7 through 17 shall survive termination of this Agreement. This Agreement, your rights and obligations, and all actions contemplated by this Agreement are governed by the laws of the United States of America and the State of Illinois, as if the Agreement were a contract wholly entered into and wholly performed within the State of Illinois.
Except as specifically stated herein, any dispute or claim between you and Breadcrumb arising out of, or relating in any way to, the Agreement or the Service (“Disputes”) shall be resolved exclusively by final, binding arbitration; except that you may bring a qualifying claim over a Dispute in a small claims court in Cook County, Illinois. By virtue of this Agreement, you and Upserve are each giving up the right to go to court and have a Dispute heard by a judge or jury (except as otherwise set forth in this Section 17). The provisions of this Section 17 shall constitute your and Breadcrumb’s written agreement to arbitrate Disputes under the Federal Arbitration Act (“Agreement”). Any modification to this Agreement shall be in writing and signed by you and Upserve. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
To begin an arbitration proceeding, you must comply with the limitations provision set forth in this Section 17 and submit the Dispute by utilizing the forms available at http://www.adr.org, and simultaneously sending a copy of the completed form to the following address: C T Corporation System, 208 S. LaSalle Street, Suite 814, Chicago, IL 60604. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Breadcrumb will reimburse those fees for Disputes totaling less than $10,000 unless the arbitrator determines the Dispute is frivolous. Likewise, Breadcrumb will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the Dispute is frivolous. The arbitration will be conducted based upon written submissions unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines or we agree that the matter should proceed in the county in which you reside. You and us each agree that we shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, you and us each agree that Disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s intellectual property.
If for any reason a Dispute proceeds in court, you agree to submit to the personal jurisdiction of, and venue in, the state and federal courts located in Cook County in the State of Illinois with respect to any and all legal proceedings that may arise in connection with the Dispute, and waive any objection to such jurisdiction and venue. All parties irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to or arising under this agreement.