1. Services. Upserve is a technology company thatdevelops and provides the Services to Restaurants in order to provide dinerswith the ability to order food, beverages, and related products and services(“Goods”) online for pick up and/or delivery. Restaurants operate independentlyof Upserve in the marketing, preparation, sale and delivery of Goods.Restaurants are required to comply with a variety of laws, rules, regulationsand standards with respect to the marketing, preparation and sale of Goods(including, without limitation, food safety and menu disclosure). Due to theindependent nature of the Restaurants, Upserve provides no guarantees to youregarding, and shall not be liable for, Restaurants’ compliance with applicablelaws, rules, regulations and standards, the quality of Restaurants’ Goods, anyrepresentations made by Restaurants, or any ancillary services provided inconnection with the Goods, such as delivery services that may be provided by aRestaurant. By voluntarily providing a telephone number and/or e-mail addressin connection with your use of the Services, you agree that you may becontacted by telephone,SMS or e-mail, as applicable, at that telephone numberand/or e-mail address, for the purpose of providing you with (a) notificationsrelated to your order (for example, to notify you that your order is ready forpickup or out for delivery); and (b) promotional communications related to pastorders, Upserve, the Restaurant or the Services. In order to revoke consent toreceiving SMS messages, please follow the directed prompts. Standard data andmessage rates apply for SMS messages. In order to revoke consent to receivinge-mail messages, please follow the directed prompts to unsubscribe. 

2. Account Creation and Security.You may (but are not required to) createan account to store your information for future use of the Services, includingyour preferred payment method (“Account”). In order to create and maintain anAccount, you must maintain a valid payment method and accurate, current andcomplete information. You are fully responsible for maintaining access to, andthe security and confidentiality of, your Account, including, but not limitedto, the associated username and password. You are fully responsible and fullyliable for all purchases of Goods occurring on or through the Services(“Purchases”) while using your Account, whether authorized by you or not.Upserve has no obligation to verify the identity of any person gaining accessto the Services by means of an Account. In the event that you suspect ordiscover a compromise in the security of your Account, including unauthorizeduse, you should immediately take all necessary steps to prevent suchcompromise, and immediately notify Upserve.

3. Purchase of Goods. The Restaurant from which you order through theService is the seller of the Goods, and independently sets pricing for theGoods, and the payment transaction with respect to Goods ordered will be solelybetween you and the Restaurant. With respect to a given order, a Restaurant maycharge you for the identified cost of the Goods, applicable taxes, gratuitiesand a delivery fee (as applicable). Upserve may separately charge you a servicefee for facilitation of the order (which is explicitly in consideration of suchfacilitation of the order through the Services, and not in exchange for theGoods). In each instance, the foregoing fees will be clearly presented to youprior to submitting an order, and by placing the order you agree to pay allsuch fees. Both the Restaurant and Upserve will charge, and you authorize boththe Restaurant and Upserve to charge, the payment method specified by you inconnection with submission of your order, which may require thepre-authorization of your payment method prior to purchase to verify that thepayment 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 orchange your order, or request a refund. Notwithstanding the foregoing, servicefees charged in connection with the facilitation of an order are non-cancelableand non-refundable. Certain Restaurants may be permitted to provide for theordering 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 orpickup of your order, you will present government-issued identificationacceptable to the Restaurant in accordance with applicable law. In no eventwill Upserve be responsible or liable to you or any other person with respectto any alcohol ordered by you from a Restaurant through the Services, or for aRestaurant’s non-compliance with applicable laws.

4. Use Restrictions. By creating an Account, placing an order throughthe Services or otherwise using the Services, you agree: (a) to comply withthese Terms and applicable laws, rules and regulations in connection with theServices; (b) not to use the Services for any purpose not expressly permittedherein; (c) not to access the Services through a third party’s Account withoutthe express permission of the Account holder; (d) not to attempt to impersonatea third party; (e) not to avoid, bypass, or attempt to circumvent anytechnological measures implemented to protect the Services or otherwise attemptto gain unauthorized access to any part of the Services or an Account; (f) notto use the Services in any manner that could damage, disable or impair theServices; (g) not to conduct any type of systematic retrieval of data orcontent from the Services; not to compile any database or directory from theServices; (h) not to engage in any criminal or tortious activity, including,without limitation, fraud, in using the Services; (i) not breach or attempt tobreach the security of the Services or any network, servers, data, computers orother 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 theServices; (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 ofthe 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 withthe Services; or (l) not to assist or permit any person in connection with anyactivity not compliant with the foregoing.

5. Termination.Your failure to comply with these Terms will result inautomatic termination without notice. Upserve may, in its sole discretion,modify, suspend or discontinue, at any time and without notice, the Services orany part thereof. You may terminate these Terms at any time by closing yourAccount or otherwise ceasing use of the Services. Upon any termination of theseTerms by either you or Upserve: (a) you must immediately cease use of theServices; and (b) any provisions of these Terms which by their nature governpost-termination rights and obligations shall survive, including, withoutlimitation, Sections 5 (Termination), 7 (Disclaimer), 8 (Limitation ofLiability), 9 (Indemnification), 11 (Governing Law), 12 (Binding IndividualArbitration) 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 beprotected by copyright, trademark, patent and/or other intellectual orproprietary rights and laws of the United States. Subject to your compliancewith these Terms, Upserve grants to you a limited, non-exclusive,non-transferable, non-sublicensable, and revocable license to access and usethe Services as expressly permitted by, and subject to, these Terms. Nothingwithin the Services should be interpreted as granting to you any license orright to use any of the materials (other than as provided herein) and/orthird-party proprietary content included within the Services. Any rights notexpressly 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 expressor implied. To the fullest extent permissible by applicable law, Upservedisclaims all warranties, express or implied, statutory or otherwise, including,without limitation, the implied warranties of merchantability, fitness for aparticular purpose and non-infringement. Upserve does not warrant that theServices will be secure, uninterrupted and/or error-free, that defects will becorrect, that the Services are or will be free for viruses or other harmfulcomponents, and does not warrant or represent the Services in terms ofcorrectness, accuracy, reliability, timeliness or otherwise, including, withoutlimitation, the safety, quality and/or the Goods. Upserve relies uponRestaurants to provide accurate allergen and dietary information and generalsafety of the Goods, and Upserve does not represent or warrant that theinformation accessible through the Service is accurate or reliable, including,without limitation, menus and nutritional and allergen information, and yourreliance on any Restaurant-provided information within the Services is solelyat your own risk.

8. Limitation of Liability.To the fullest extent permissible by applicablelaw, in no event shall Upserve be liable to you for any indirect, special,incidental, punitive, exemplary or consequential damages, or any loss ordamages whatsoever (including, without limitation, loss of data, revenue orprofit, or personal injury), arising out of any warranty, contract, negligence,tort or other action in connection with your use of, inability to use or theperformance of, the Services, even if Upserve has been advised of thepossibility of such losses or damages. These limitations apply notwithstandingany failure of essential purpose of any limited remedy. In no event shallUpserve’s total liability to you for all damages, losses or causes of actionexceed the lesser of: (a) the amounts paid by you to a Restaurant and Upservethrough the Services, if any, during the 12 month period immediately precedingthe event giving rise to the losses or damages; or (b) $500.00. The partiesagree that Sections 7 (Disclaimer) and 8 (Limitation of Liability) are materialbargained-for bases of the parties’ agreement and that they have been dulyconsidered in determining the consideration to be given by each partyhereunder, and are fair and reasonable.

9. Indemnification. You agree to indemnify and hold harmless Upserveand its officers, directors, employees, agents and affiliates from and againstany losses, claims, actions, costs, damages, penalties, fines and expenses,including, without limitation, attorneys’ fees and expenses, that may beincurred arising out of, relating to, or resulting from: (a) your misuse of theServices; (b) your breach of these Terms; or (c) your violation of anyapplicable laws, rules or regulations through or related to your use of theServices. Upserve reserves the right, at its own expense, to assume exclusivedefense and control of any matter otherwise subject to indemnification, inwhich case you agree to fully cooperate with Upserve in asserting any availabledefense.

10. Changes to Terms. Upserve may change these Terms fromtime-to-time without prior notice, and if we do so, the changes will beeffective as soon as they are posted on Upserve’s website. By continuing toaccess the Service following changes to these Terms, you agree to be bound bythe updated Terms, and if you do not agree to be bound, your sole remedy is to immediatelycease accessing the Services. Notwithstanding the foregoing, Unless the partiesagree otherwise in writing, any such changes to the Terms will not apply to youto the extent that: (a) the changes concern matters which are the subject of anactual 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 changestake effect.

11. GoverningLaw. This Agreement is governed by the laws of the State of Delaware, withoutregard to its conflict-of-laws rules. Any suit or proceeding arising out of orrelating to this Agreement shall be brought exclusively in the Court ofChancery of the State of Delaware (or, if it lacks jurisdiction, the SuperiorCourt of the State of Delaware or the U.S. District Court for the District ofDelaware). Each party submits to the exclusive jurisdiction of those courts,waives any objection to venue or inconvenient forum, and waives any right to ajury trial.

12. Binding Individual Arbitration. 

a. Arbitration. Except as specifically stated within these Terms, you andUpserve agree that any and all disputes or claims that may arise between youand Upserve arising out of or in any way relating to these Terms or theServices (“Dispute”) shall be resolved exclusively through final and bindingarbitration; provided, however, that you may assert qualifying individualclaims regarding a Dispute in a small claims court in Providence County, RhodeIsland, and provided that such claims remain in small claims court and proceedonly on an individual, non-class or non-representative basis. Any arbitrationunder these Terms will only be on an individual basis. Class arbitrations,class actions, representative actions and consolidation with other arbitrationsare not permitted. Unless otherwise explicitly provided for herein, the partieswaive any right to have their cases decided by a jury and waive any right toparticipate in a class action with respect to any Dispute. Any action orproceeding brought forward by a party (“Disputing Party”) relating to anyDispute must commence within 1 year after the cause of action accrues. If anyprovision of this section 12 is found unenforceable, the unenforceableprovision will be severed and replaced with an enforceable provision that comesclosest to expressing the intention of the unenforceable provision, and theremaining arbitration terms will be enforced (provided, however, that in noevent will there be a class or representative arbitration, and in the eventthat such is held to be unenforceable, the entirety of this Section 12 shall benull and void). Subject to and without waiver of the arbitration provisionsherein, this Section 12 shall not preclude a Disputing Party from obtaining atemporary restraining order or preliminary injunction in circumstances in whichsuch relief is appropriate; provided, however, that any further relief shall bepursued by such Disputing Party through an arbitration proceeding under thisSection 12. Subject to and without waiver of the arbitration provisions herein,the parties agree that any judicial proceedings will be brought in, and theparties hereby consent to the exclusive jurisdiction and venue in, the State orFederal courts in Providence, Rhode Island.

b. Procedure. Disputes will be resolved finally and exclusively by bindingindividual arbitration with a single neutral arbitrator (“Arbitrator”) and willbe administered by the American Arbitration Association (“AAA”)(https://www.adr.org/) (“AAA Site”) pursuant to its rules, including the AAA’sSupplementary Procedures for Consumer-Related Disputes, the Federal ArbitrationAct (9 U.S.C §§ 1-16) and this Section 12 (the terms of which shall control inthe event of inconsistency). To being an arbitration proceeding, Disputing Partymust submit the Dispute by utilizing the forms available on the AAA Site, andsimultaneously sending a copy of the completed form(s) to the other party. Thearbitration will be conducted based upon written submissions unless theDisputing Party requests, or the Arbitrator determines, that a telephone orin-person hearing is necessary. In the event that an in-person hearing isrequested or determined to be necessary, the hearing shall take place inProvidence, Rhode Island. The Arbitrator shall be responsible for determiningall threshold arbitrability issues, including, without limitation, issuesrelating to whether these Terms (or any aspect thereof) are enforceable,unconscionable or illusory and any defense to arbitration, including, withoutlimitation, waiver, delay, laches or estoppel. The Arbitrator’s award will bebinding on the parties and may be entered as a judgment in any court ofcompetent jurisdiction. While an Arbitrator may award relief (including,without limitation, monetary declaratory or injunctive relief), the Arbitratormay do so only with respect to the individual Disputing Party seeking relief,and only to the extent necessary to provide relief warranty by the individualDisputing Party’s claim. The Arbitrator shall be required to issue a reasoneddecision in writing, explaining the Arbitrator’s essential findings andconclusions upon which an award is based (if any). An Arbitrator’s decision andjudgment thereon will not have a precedential or collateral estoppel effect.Payment of all filing, administration, Arbitrator and attorneys’ fees will begoverned by the Rules of the AAA. All aspects of such arbitration proceeding,along with any decision, written decision and award will be subject to aconfidentiality agreement. For the purposes of this Section 12, references toUpserve also includes its parent, subsidiary and affiliate entities, agents,employees, predecessors, successors and assigns, as well as authorized andunauthorized users of your Account.

13. Waiver and Severability. Any waiver by Upserve of any provision ofthese Terms 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.

14. Notices. Any notice or other communication required or permitted underthese Terms 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.

15. Entire Agreement. These Terms are the complete and exclusive statementof the mutual understandings of the parties with respect to its subject matterand supersedes and overrides all prior agreements. 16. Governing Law. This Agreement is governed by the laws ofthe State of Delaware, without regard to its conflict-of-laws rules. Any suitor proceeding arising out of or relating to this Agreement shall be brought exclusivelyin the Court of Chancery of the State of Delaware (or, if it lacksjurisdiction, the Superior Court of the State of Delaware or the U.S. DistrictCourt for the District of Delaware). Each party submits to the exclusive jurisdictionof those courts, waives any objection to venue or inconvenient forum, andwaives any right to a jury trial. 

16. Governing Law. This Agreement is governed by the laws ofthe State of Delaware, without regard to its conflict-of-laws rules. Any suitor proceeding arising out of or relating to this Agreement shall be brought exclusivelyin the Court of Chancery of the State of Delaware (or, if it lacksjurisdiction, the Superior Court of the State of Delaware or the U.S. DistrictCourt for the District of Delaware). Each party submits to the exclusive jurisdictionof those courts, waives any objection to venue or inconvenient forum, andwaives any right to a jury trial.