Last Updated: October 2, 2018
Upserve, Inc. (“we,” “Upserve” or “Company”) may, from time to time, offer Users (as defined below) the opportunity to refer friends (each a “Referred Friend”) to try the Upserve products/services (the “Program”). We reserve the right to terminate the Program at any time for any reason. By participating in the Program, Users are bound by these Refer-A-Friend Program Terms and Conditions (the “Program Terms”) and agree to use the Program in the manner specified herein. If you do not agree to these Program Terms in their entirety you are not authorized to participate in the Program in any manner. Users may not participate in the Program where doing so would be prohibited by any applicable law or regulation.
Upserve reserves the right to modify or amend, at any time, these Program Terms and the methods through which Rewards are earned. We reserve the right to modify, limit or restrict participation in the Program to any person at any time for any reason and without notice. Participant eligibility shall be determined by Upserve in its sole discretion. A User’s time of entry into the Program will be determined by Upserve in its sole discretion. We reserve the right to disqualify any User at any time from participation in the Program if such User does not comply with any of these Program Terms.
- The Program
To participate in the program, a User may visit (i) https://www.upserve.com/refer-a-friend; (ii) User’s Upserve HQ, if applicable; or (iii) User’s Breadcrumb HQ, if applicable, and follow the on-screen instructions to refer Referred Friends to Upserve for use of the Upserve products/services (Users who refer Referred Friends are called “Referrers”). An Eligible Referrer who is fully compliant with these Program Terms may receive Rewards for every Qualified Referral.
To be eligible, a Referrer must (1) be a legal resident of the United States of America; and (2) be at least eighteen (18) years old (an “Eligible Referrer”). Employees of the Company, existing referral partners or technology partners and any of their subsidiaries, affiliates or promotional agencies, including immediate family and household members, are prohibited from participating in the Program and shall not be considered Eligible Referrers under these Program Terms.
A Qualified Referral means a referral that meets all of the following conditions: (1) the Referred Friend is a bar or restaurant; (2) the Referred Friend is not an existing customer of Upserve, part of a restaurant group sharing common ownership with a participating Upserve customer or a new location of an existing Upserve customer; (3) the Referred Friend is not currently engaged in the sales process by Upserve’s direct sales efforts, an Upserve partner, another Referrer or otherwise; and (4) the Referred Friend enters into an agreement with Upserve relating to the Upserve products/services as a direct result of User’s referral (for the avoidance of doubt, if a Referred Friend enters into an agreement with Upserve relating to the Upserve products/services using any other link or method, the registration will not count as a Qualified Referral, and Referrer will not earn credit for the referral or any Reward) (each a “Qualified Referral”). A Referrer’s referral of itself or a related entity as a Referred Friend shall not be considered a Qualified Referral. Classification of a referral as a Qualified Referral shall be at Upserve’s sole discretion. Credit shall only be awarded for Qualified Referrals.
- Content Ownership and Use.
The online platform and the Program may contain contents that include designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other content (collectively, the “Content”). User agrees and acknowledges that Upserve and/or its licensors owns all right, title and interest in the Content, and that other than as specified in this Agreement, User will have no right to use the Content or other intellectual property of Upserve, whether or not provided by Upserve, without first obtaining Upserve’s written consent.
License to User
Upserve authorizes User, subject to these Program Terms, to access and use the online platform, Program and the Content solely for User’s personal, non-commercial use. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Content may violate copyright, trademark and applicable communications regulations and statutes and is strictly prohibited.
The registered or unregistered names, logos, insignias, product and service names and other intellectual property rights are or may be trademarks of Upserve and/or its licensors (the “Marks”). WIthout Upserve’s prior written permission, and except as solely enabled by any link as provided by Upserve, User agrees not to display or use the Marks in any manner.
- Warranties; Limitation of Liability; Indemnification
User warrants that it will not make any promise, representation, guarantee or warranty to any Referred Friend or to any other party, on behalf of Upserve or otherwise attributed to Upserve, regarding the Upserve products/services or any other products or services provided by Upserve or its parent, subsidiary or affiliate companies, whether or not such products or services are provided under the terms of this agreement.
Disclaimer of Warranties
USER EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) USER’S USE OF THE PROGRAM IS AT USER’S SOLE RISK, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND UPSERVE EXPRESSLY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES (COLLECTIVELY, “PROMISES”), EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE UPSERVE PRODUCTS/SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONDITION, REPRESENTATION OR WARRANTY OF DURABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THE PATENT RIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON; (B) UPSERVE MAKES AND GIVES NO WARRANTY THAT (I) THE PROGRAM WILL MEET USER REQUIREMENTS; (II) THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM THE USE OF THE PROGRAM WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY USER THROUGH THE PROGRAM WILL MEET USER’S EXPECTATIONS; AND (V) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT USER’S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
Limitation of Liability and Indemnification
USER EXPRESSLY UNDERSTAND AND AGREES THAT UPSERVE SHALL NOT BE LIABLE TO USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UPSERVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE PROGRAM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, FROM OR AS A RESULT OF THE PROGRAM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH THE PROGRAM; OR (V) ANY OTHER MATTER RELATING TO THE PROGRAM. TO THE FULLEST EXTENT POSSIBLE BY LAW, UPSERVE’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
- Prohibited Conduct.
Users agree not to use the Program to:
- Violate applicable law;
- Infringe the intellectual property rights of Upserve or any third parties;
- Stalk, harass or harm another individual or entity;
- Collect or store personal data about other Users;
- Impersonate any person or otherwise misrepresent User’s identity;
- Interfere with, disrupt or violate the Program Terms or servers or networks connected to the Program, or disobey any requirements, procedures, policies or regulations of such networks;
- Interfere with another User’s use of the Program;
- Attempt to gain unauthorized access to the Program, other accounts, computer systems, or networks connected to the Program;
- Transmit any file that contains viruses, worms, Trojan horses or any other contaminating or destructive features; or
- Conduct any illegal activity or solicit the performance of any illegal activity or other activity that infringes the rights of others.
Bulk Distribution (“Spam”)
If a Referrer contacts a Referred Friend by email in relation to the Program, the email must be created and distributed in a personal manner that is appropriate and customary for communications with Referred Friend. By submitting the email addresses, the Referrer represents that he/she has the Referred Friend’s consent. Bulk email distribution, distribution to strangers, or any other promotion of the Upserve products/services in a manner that would constitute or appear to constitute unsolicited commercial email or “spam” in Upserve’s sole discretion is expressly prohibited and may be grounds for immediate termination of Referrer’s ability to participate in the Program. Upserve has a no tolerance Spam policy. Upserve has no obligation to monitor the content provided by Users; however, in the event that Upserve discovers that Referrer’s actions violate these Program Terms, Upserve may prohibit any use of the Program by Referrer. In such instances, Referrer is the actual sender of the emails and must comply with applicable law. Referrers who do not comply with the law, including anti-spam laws, are obligated to indemnify Upserve against any liabilities, costs and expenses it incurs as a result of such Spam.
Fraudulent and Suspicious Behavior
Upserve may prohibit User from participating in the Program or receiving credit or a Reward, in its sole discretion, if it determines User is attempting to undermine the fairness, integrity or legitimate operation of the Program in any way by cheating, hacking, deception, or any other unfair playing practices or intending to annoy, abuse, threaten or harass any other Users, Referred Friends or representatives of Upserve. Use of any automated system, script or macro to participate is strictly prohibited and will result in disqualification. Users may not enter with multiple or fake email addresses or accounts, use fictitious identities or use any system, bot or other device or artifice to participate in the Program or receive a Reward. Upserve reserves the right to disqualify any User and/or cancel any Reward(s) if it finds User to be tampering with the entry process or operation of the Program or violating these Program Terms.
- Governing Law and Venue.
These Program Terms and the parties’ relationship will be governed by and construed in accordance with the laws of the State of Rhode Island, without regard to principles of choice of law. Venue for any disputes, controversies or claims arising out of or relating to the Program or these Program Terms or the breach hereof will be the federal and state courts located within Rhode Island, and the parties hereby submit to the exclusive jurisdiction of such courts.
- General Terms.
These Program Terms constitute the entire agreement between User and Upserve concerning Users’ use of the Program. Upserve and User are independent contractors with respect to each other and neither party will have the authority to act or represent the other party or its affiliates, officers, directors or employees in any way, and will not be an agent of the other party. These Program Terms will not create or constitute any agency, partnership, joint venture or association, or confer on either party any express, implied or apparent authority to make any representation or incur any obligation on behalf of the other. The failure of Upserve to exercise or enforce any right or provision of these Program Terms shall not constitute a waiver of such right or provision. If any provision of these Program Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Program Terms remain in full force and effect. The section titles in these Program Terms and for convenience only and have no legal or contractual effect. A person who is not a party to these Program Terms shall have no right to enforce or receive the benefit of any of these Program Terms.