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Terms of Use

Effective: June 16, 2020

United POS Solutions Inc. and its subsidiaries and affiliates (“UPSI,” “we,” “our,” or “us”) own and operate certain websites, including related subdomains; our point-of-sale software and hardware systems; mobile, tablet and other smart device applications; application program interfaces; in-store kiosks or other online services; other tools, technology and programs (collectively, the “epipay® Platform”) and all associated services (collectively, the “epipay® Services”); in each case, that reference these Terms of Use.

These Terms of Use (the “Agreement”) constitute a contract between you and us that governs your access and use of the epipay® Platform and the epipay® Services. By your continuing use of the epipay® Platform and the epipay® Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not use the epipay® Platform or the epipay® Services. As used in this Agreement, “you” means any visitor, user, or other person who accesses our epipay® Platform or epipay® Services; whether or not such person registered for an Account (as defined below). Unless otherwise agreed by UPSI in a separate written agreement with you or your authorized representative, the epipay® Platform and the epipay® Services are made available solely for your personal, non-commercial use.

The Terms of Use governs important rights, and how disputes between UPSI, its partners, and You will be handled or resolved, therefore if it important for You to review the Dispute Resolution Section below carefully. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

ABOUT EPIPAY® SMARTER PLATFORM

epipay® smarter Platform is a conduit to facilitate connection between You and third-party service providers, such as local restaurants and eateries. You may order food through the epipay® smarter Platform. Receive confirmation, and be alerted when the food will be ready for a pick up or take out, or have the third party provider arrange for a delivery (hereafter, the “Restaurants”).

Neither the epipay® smarter Platform nor UPSI is a restaurant or food preparation entity. The Restaurants available on the epipay® smarter Platform operate independently of the epipay® smarter Platform. Restaurants are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosure. The epipay® smarter Platform and UPSI are not liable or responsible for Restaurants' food preparation or safety and does not verify their compliance with all applicable laws. In addition, the epipay® smarter Platform and UPSI do not guarantee the quality of what the Restaurants sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery services or engage another third-party delivery service. The epipay® smarter Platform and UPSI do not independently verify, and is not liable for, representations made by Restaurants regarding their food, including, without limitation, any menu- or Restaurant-level descriptors or disclosures.

UPSI and the epipay® smarter Platform are not a delivery company or a common carrier. Some Restaurants may provide delivery services at their discretion. By accessing the epipay® smarter Platform, you agree and acknowledge that Restaurants are solely responsible for, and the epipay® smarter Platform and UPSI shall not be liable or responsible for, the delivery services provided to you by any Restaurant or any subcontractors of Restaurants, or any acts, omissions, errors or misrepresentations made by any Restaurants or their subcontractors.

USING THE EPIPAY® SMARTER PLATFORM

You may only create and hold one account on the epipay® smarter Platform (an “Account”) for your personal use. In consideration of the use of the epipay® smarter Platform and the epipay® smarter Services, you agree that you are able to create a binding legal obligation with UPSI, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete.

The epipay® smarter Platform requires you to make purchases with an Account by logging in to your Account. Your Account is based on the information you provide to us in connection with the transaction (e.g., your payment information, name, phone number, email address, and other transaction information). If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the epipay® smarter Platform, and your parent or legal guardian must read and agree to this Agreement prior to your using the epipay® smarter Platform. Notwithstanding the foregoing, you are not authorized to use the epipay® smarter Platform or otherwise access the epipay® smarter Services if you are under the age of 13. If you are using the epipay® smarter Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that entity, organization, or company. If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if UPSI has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, The epipay® smarter Platform and/or UPSI has the right to block your current or future use of the epipay® smarter Platform and/or the epipay® smarter Services (or any portion thereof) and/or terminate this Agreement with you. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits, or other promotional offers, and any other forms of unredeemed value in or associated with your Account without prior notice to you.

You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify UPSI of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. UPSI and the epipay® smarter Platform will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.

ALCOHOLIC BEVERAGES POLICY

Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions, if you place an order that includes any alcoholic beverage, you represent and warrant that you are at least 21 years of age or of legal drinking age according to the local laws to which you are subjected to. Upon delivery or pickup, as applicable, you shall present to Restaurant or Restaurant’s representative a government-issued identification card, evidencing your age, consistent with applicable legal requirements. You also agree that our Restaurant’s delivery service provider may withhold delivery of the alcoholic beverages if you appear or the recipient of the delivery appears intoxicated when receiving delivery of such products. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you may forfeit the cost of such beverages.

PAYMENT AND OUR CREDIT POLICY

Certain features of the epipay® smarter Platform, including, without limitation, the placing or receipt of orders, may require you to make certain payments, including commissions or other fees. When paid by you, these payments are final and non-refundable, unless otherwise determined by UPSI. UPSI, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged.

The epipay® smarter Platform or UPSI will charge, and you authorize the epipay® smarter Platform and/or UPSI to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, the epipay® smarter Platform or UPSI may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. In the event UPSI advances payment for any of your orders placed via the Platform (e.g., if you sign up for a corporate account), The epipay® smarter Platform or UPSI may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant the epipay® smarter Platform or UPSI the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law.

The epipay® smarter Platform and UPSI reserve the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the epipay® smarter Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for restaurant food and beverage items. The epipay® smarter Platform and UPSI may also, in their sole discretion, may provide incentives or other promotional offers with different features and different rates available to any or all of our users.

OUR MATERIALS AND LICENSE TO YOU

The epipay® smarter Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the "Materials") is owned by or licensed to UPSI. The epipay® smarter Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the epipay® smarter Platform and except for the intellectual property of other companies that are displayed on the epipay® smarter Platform, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to UPSI, including, without limitation, epipay®, epiday®, UP Restaurant®, UP TAB®, Up salon®, Upsolution.com, and .including, without limitation, the Materials, and if you do, the epipay® smarter Platform and UPSI will not be responsible in any way for any damage to your computer system or loss of data. Please also be advised that the epipay® smarter Platform and UPSI enforce their intellectual property rights to the fullest extent of the law.

Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the epipay® smarter Platform for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Platform. Any other use of the epipay® smarter Platform is strictly prohibited. Nothing contained on the epipay® smarter Platform and/or Materials 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 on the epipay® smarter Platform without the express written permission of UPSI or the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by UPSI and UPSI’s licensors.

YOUR CONTENT AND CONDUCT

I. Your Conduct

By accessing the Platform or the Services, you agree:

to comply with the Agreement and all applicable laws, rules and regulations in connection with your use of the epipay® smarter Platform and the epipay® smarter Services, including, without limitation, laws regarding online conduct and Your Content (as defined below);

not to use the epipay® smarter Platform or the epipay® smarter Services for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;

not to access the epipay® smarter Platform or the epipay® smarter Services using a third party's account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;

not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by the epipay® smarter Platform or the epipay® smarter Services or UPSI to protect the epipay® smarter Platform, or otherwise attempt to gain unauthorized access to any part of the epipay® smarter Platform and/or any epipay® smarter Service, other Account, computer system, and/or network connected to any UPSI server;

not to use the epipay® smarter Platform or the epipay® smarter Services in any manner that could damage, disable, overburden, and/or impair the epipay® smarter Platform or the epipay® smarter Services, any UPSI server, or the network(s) connected to any UPSI server, and/or interfere with any other party's use and enjoyment of the epipay® smarter Platform;

not to advertise to, or solicit, any user, Restaurant, or other business to buy or sell any products or services, or use any information obtained from the epipay® smarter Platform or the epipay® smarter Services in order to contact, solicit, or advertise or sell to any user, Restaurant, or other business, in each case, unless specifically authorized in writing by UPSI;

not to deep-link to or frame the Platform and/or access the Platform manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the epipay® smarter Platform and/or the epipay® smarter Services and/or any Materials and/or other content on the epipay® smarter Platform or the epipay® smarter Services, unless specifically authorized in writing by UPSI;

not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the epipay® smarter Platform or the epipay® smarter Platform;

not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the epipay® smarter Platform or the epipay® smarter Services or Materials;

not to create Restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the epipay® smarter Platform;

not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;

not to harass, annoy, intimidate, or threaten any UPSI employees, contractors, or agents, or any Restaurants and Restaurant employees engaged in providing any portion of the Services;

not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of Your Content (as defined below) or from any portion of the epipay® smarter Platform or the epipay® smarter Services;

not to rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the epipay® smarter Platform or the epipay® smarter Services; and

not to disrupt, interfere with, or otherwise harm or violate the security of the epipay® smarter Platform, or any Services, system resources, accounts, passwords, servers or networks connected to or accessible through epipay® smarter Platform or the epipay® smarter Services or affiliated or linked sites (including, without limitation, those of our Restaurant).

You agree to comply with the above conduct requirements, and agree to not assist or permit any person in engaging in any conduct that does not comply with the above conduct. Further, you agree that the consequences of commercial use or re-publication of Your Content or Materials from the Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that UPSI will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.

II. Content You Provide

Where applicable, UPSI may provide you with interactive opportunities (i) on the epipay® smarter Platform, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked Restaurants, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, "Interactive Areas"). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to UPSI through the epipay® smarter Platform or otherwise in connection with your use of our epipay® smarter Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“Your Content”). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a UPSI diner, textual, visual, or audio content and information, whether transmitted via the Platform, SMS or MMS message, or otherwise.

III. Use of Your Content

You grant UPSI an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use Your Content in connection with UPSI's or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”). The Uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a UPSI diner, to attribute Your Content to you on the Platform, including in Interactive Areas and other public areas on our Platform, or otherwise in connection with our Services. All Uses will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Further, if you provide any suggestions, input, or other feedback relating to the Platform or the Services we provide (collectively, the “Feedback”), UPSI shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant UPSI a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.

You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. UPSI and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the "Released Parties") will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.

IV. Conduct within Interactive Areas

By transmitting Your Content, you agree to follow the standards of conduct below and any additional standards that may be stated on the Platform. We expect your cooperation in upholding our standards. You are responsible for all of Your Content. You agree that Your Content will not:

be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;

have a commercial, political, or religious purpose;

be false, misleading, and/or not written in good faith;

infringe any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;

be illegal and/or promote illegal activity;

contain unauthorized advertising and/or solicits users to a business other than those on the Platform; and/or

be intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Platform or other websites.

We do our best to encourage civility and discourage disruptive communication on the epipay® smarter Platform. We also do our best to discourage communications that incite others to violate our standards. UPSI may monitor any and all use of the epipay® smarter Platform, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the epipay® smarter Platform in a manner intended to protect our property and rights and to facilitate the proper functioning of the epipay® smarter Platform. If any of Your Content or conduct on our epipay® smarter Platform violates our standards, or any other terms of this Agreement; or interferes with other peoples' enjoyment of the Materials or our epipay® smarter Platform or epipay® smarter Services; or is inappropriate in our judgment; we reserve the right, in our sole discretion and without notice to you, (i) to change, delete or remove, in part or in full, any of Your Content, and (ii) to terminate or suspend access to any Interactive Areas or any other part of our Platform. UPSI will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with Your Content.

V. Ratings and Reviews

The Platform and other Interactive Areas may allow you to rate (each, a “Rating”) and post reviews (each, a “Review”) of Restaurants. Such Ratings and Reviews are considered Your Content and are governed by the terms and conditions of this Agreement. Ratings and Reviews are not endorsed by UPSI, and do not represent the views of UPSI or of any affiliate or partner of UPSI. UPSI does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other aspects of Your Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the Restaurant within the 7-day period prior to your review; (2) you may not have a proprietary or other affiliation with either the Restaurant or any of its competitors; (3) you may not draw any legal conclusions regarding the Restaurants' products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the epipay® smarter Platform may be removed or excluded by us without notice.

COMMUNICATIONS & TEXT MESSAGES

By voluntarily providing your cell phone number to UPSI, you agree that UPSI may contact you by telephone, SMS, or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand and consent that such messages may be sent using an automatic telephone dialing system.

Additionally, you may receive messages from UPSI following receipt of a completed order soliciting feedback and/or other information relating to the order. You may also receive individual texts from the Restaurant or the Restaurant’s delivery person to enable successful delivery of your order.

If you change or deactivate the phone number you provided to UPSI, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive UPSI’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.

Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier is not liable for delayed or undelivered messages.

ADDITIONAL TERMS FOR MOBILE APPLICATIONS

We may make available software to access UPSI’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. UPSI does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Platform.

DISCLAIMER

THE EPIPAY® SMARTER PLATFORM, THE EPIPAY® SMARTER SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THE EPIPAY® SMARTER PLATFORM ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE SERVICES, THE EPIPAY® SMARTER PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE EPIPAY® SMARTER PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UPSI DOES NOT REPRESENT OR WARRANT THAT THE EPIPAY® SMARTER PLATFORM, THE EPIPAY® SMARTER SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE EPIPAY® SMARTER PLATFORM, THE EPIPAY® SMARTER SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. UPSI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE EPIPAY® SMARTER PLATFORM, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT UPSI) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE EPIPAY® SMARTER PLATFORM, THE EPIPAY® SMARTER SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE EPIPAY® SMARTER PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.

UPSI SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND UPSI'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. UPSI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

UPSI RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. UPSI DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL UPSI BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF UPSI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE EPIPAY® SMARTER PLATFORM OR BY UPSI. UPSI ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE EPIPAY® SMARTER PLATFORM. UPSI ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE EPIPAY® SMARTER PLATFORM, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL UPSI'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO UPSI OR A UPSI RESTAURANT, IF ANY, OR (B) $500 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.

YOU AND UPSI AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND UPSI AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES.

IMPORTANT NOTE TO NEW JERSEY CONSUMERS

IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THESE TERMS OF USE DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE, AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); AND (D) THE NEW YORK GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).

THIRD PARTY LINKS

The epipay® smarter Platform may contain links to websites that are owned, controlled, developed, sponsored and/ or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Websites"). UPSI does not review, monitor, operate and/or control the Third Party Websites and UPSI makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, UPSI is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. UPSI reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.

PRIVACY POLICY

The terms and conditions of the Privacy Policy are incorporated into this Agreement by reference.

COPYRIGHT POLICY

UPSI respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Platform or a website through which our Services may be accessed in a way that constitutes copyright infringement, please provide UPSI's Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):

Please send this notification to our copyright agent at: United POS Solutions, Inc., Attention: Legal Department, 255 Route 17 South, Hackensack, NJ 07601.

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

TERMINATION AND VIOLATIONS OF THE AGREEMENT

Your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. Further, UPSI reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the epipay® smarter Platform and/or Services offered on or through the epipay® smarter Platform (or any part thereof), including but not limited to the epipay® smarter Platform's features, look and feel, and functional elements and related Services. We will have no liability whatsoever on account of any change to the epipay® smarter Platform or any suspension or termination of your access to or use of the epipay® smarter Platform. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the epipay® smarter Platform and Services provided herein.

Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the epipay® smarter Platform and Services; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” and (vii) “Waiver and Severability.”

UPSI reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the epipay® smarter Platform and/or Services from a particular account, device and/or IP address.

You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.

CHANGES TO THE AGREEMENT

We may change this Agreement from time to time and without prior notice. If we make a change to this Agreement, it will be effective as soon as we post it and the most current version of this Agreement will always be posted under the "Terms of Use" link available on our Platform ("Updated Terms"). If we make a material change to the Agreement, we may notify you. You agree that you will review this Agreement periodically. By continuing to access and/or use the epipay® smarter Platform and/or Services after we post Updated Terms, you agree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, you will stop using the Platform and/or accessing the Services. Any disputes under this Agreement will be governed by the version of Agreement in effect at the time of the first event which gave rise to the dispute.

GOVERNING LAW

You acknowledge and agree that your access to and/or use of the Platform, the Services, the Materials, and other content on the Platform is subject to all applicable international, federal, state, and local laws and regulations. The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflict of laws principles.

DISPUTE RESOLUTION

I. Arbitration and Class Action Waiver.

You agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement or payments by or to UPSI or to service providers, or that in any way relate to your use of the epipay® smarter Platform, the Materials, the epipay® smarter Services, and/or other content on the epipay® smarter Platform or any other dispute with UPSI, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring an individual action in small claims court for disputes and actions within the scope of such court’s jurisdiction and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration. You acknowledge and agree that you and UPSI are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and UPSI otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this class action waiver is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms of Use. You further acknowledge that any claim arising under this Agreement must be brought within one year of its accrual or it will be waived. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate, as well as all threshold arbitrability issues, including whether this Dispute Resolution provision is unconscionable and any defense to arbitration.

II. Arbitration Rules

The arbitration will be administered by the American Arbitration Association ("AAA"). Except as modified by this “Dispute Resolution” provision, the AAA will administer the arbitration in accordance with either (A) the Commercial Arbitration Rules then in effect, or (B) the Consumer Arbitration Rules then in effect if the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1 (together, the "Applicable AAA Rules").(The Applicable AAA Rules are available at https://www.adr.org/Rules.) The Federal Arbitration Act will govern the interpretation and enforcement of this entire “Dispute Resolution” provision.

III. Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Applicable AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected in accordance with the Applicable AAA Rules. If the parties are unable to agree upon an arbitrator within fourteen (14) days of the AAA’s notice to the parties of its receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

IV. Arbitration Location and Procedure

Unless you and UPSI otherwise agree, the arbitration will be conducted in the Bergen County in the state of New Jersey. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and UPSI submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the Applicable AAA Rules. Subject to the Applicable AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

V. Arbitrator's Decision

The arbitrator will render an award within the time frame specified in the Applicable AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages and/or other relief must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages or other relief for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide the relief warranted by the claimant's individual claim. If the arbitrator determines that you are the prevailing party in the arbitration, and only if authorized under applicable law, the arbitrator may award reasonable attorneys' fees and expenses. If the arbitrator determines that UPSI is the prevailing party in the arbitration, and only if authorized under applicable law, the arbitrator may award reasonable attorney’s fees and expenses, Regardless of whether your Demand for Arbitration was not frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

VI. Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the Applicable AAA Rules.

WAIVER AND SEVERABILITY

Any waiver by UPSI of any term of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.

ENTIRE AGREEMENT

This Agreement, together with any amendments and any additional agreements you may enter into with UPSI in connection with the Platform and the Services hereunder, shall constitute the entire agreement between you and UPSI concerning the Platform and the Services hereunder.

CONTACT

If you have any questions regarding this Agreement, please visit our "Contact Us" page for answers and our contact information.