Terms of Use

OrderUp Terms of Use (the “Terms”)

Updated January 14, 2022

These Terms, as amended from time to time, apply to your access and use of the Services (as defined herein), including:

• Contact tracing services “Contact Tracing,”
• Digital menu services “Digital Menu,” 
• Contactless payment services “Contactless Payment,” 

or any combination of services accessible through a mobile web browser, any white-labelled websites that are created or powered by OrderUp, applications provided for Establishments and our website —www.orderup.ai—including the online products or services which may be accessed therein, any Account (as defined herein) you may use to access any of the above, (collectively, the “Services”), all of which are offered by OrderUp Technologies Inc., a federally incorporated Canadian company (“OrderUp”, “we”, “our” or “us”). 

PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AT ANY TIME, YOU SHOULD NOT ACCESS OR USE THE SERVICES. 

YOU ARE ONLY AUTHORIZED TO USE THE SERVICES IF YOU HAVE REACHED THE AGE OF LEGAL MAJORITY IN THE JURISDICTION FROM WHICH YOU ACCESS AND USE THE SERVICES. YOU AGREE TO USE THE SERVICES IN ACCORDANCE WITH THESE TERMS AND TO ABIDE BY ALL APPLICABLE LAWS. 

All references to “user”, “you”, “your” or “Patron” mean the  individual, end-user, customer of an Establishment, and references to “Establishment” mean the restaurant, stadium, bar, venue or business using any of the Services. 

Privacy Statement. Our Privacy Statement is incorporated herein by reference and forms an integral part of these Terms.  Our Privacy Statement contains important information about how we collect, store and use your Personal Information (as defined in the Privacy Statement) and we urge you to read it carefully. 

Representations About You.  You represent and warrant to us that, prior to accessing and using the Services, you have reached the age of majority in the jurisdiction from which you intend to use the Services.

Digital Menu and Contactless Payment. You acknowledge and agree that the Digital Menu is a tool that allows a Patron to access a menu of the Establishment through mobile browser, and that Contactless Payment enables a Patron to place an order with an Establishment, with either a pre-pay or post-pay option at the discretion of the Establishment. You further acknowledge and agree that the Services includes functionality that enables you to (i) place an order (“Order”) with an Establishment and (ii) settle, pay for or close (“Settle”) a check, bill, tab, or sum payable (each a “Payment”) with respect to Orders or other transactions (each, a “Transaction”) executed with an Establishment. You acknowledge that each Transaction you execute is a legally binding agreement between you and the other user and that OrderUp is not a party to such Transaction. The Establishment is responsible for fulfillment of each Transaction and any associated issues with items ordered and/or served to you.  ORDERUP ASSUMES NO LIABILITY FOR THE FOOD OR BEVERAGE YOU ORDER OR RECEIVE AS PART OF THE TRANSACTION, INCLUDING IN RESPECT OF ANY NOTES SENT TO THE ESTABLISHMENTS OR ANY  SPECIAL REQUESTS MADE THROUGH THE SERVICES. IT IS YOUR RESPONSIBILITY TO VERIFY WITH THE ESTABLISHMENT THAT YOUR NOTE OR SPECIAL REQUEST HAS BEEN RECEIVED.

Contact Tracing. You acknowledge and agree that Contact Tracing is a tool that facilitates contact tracing and data management for Establishments, and communication between Establishments and Patrons in that regard. Contact Tracing is offered as a free service to you on the strict condition that ORDERUP ASSUMES NO LIABILITY AS TO THE COMPLETENESS OR ACCURACY OF THE DATA, INCLUDING WHETHER ANY OR ALL CONTACTS HAVE BEEN TRACED, INFORMED OF ANY POTENTIAL EXPOSURE OR OTHERWISE. 

Third-Party Payment Processing. OrderUp is a technology provider and is not, nor does it perform the functions of, or functions similar to, those of a bank, credit union, payment processor or other financial institution. The processing of payments made by Patrons to Establishments is provided by the payment processor selected by each Establishment (“Payment Processor”).

Licence Grant. Subject to your compliance with these Terms, OrderUp hereby grants you a limited, revocable, non-exclusive and non-transferable licence to, where applicable, download, install, display, perform, access and use the Services, which include access to and use of the Services on a smartphone, tablet or other mobile device that you own or control, and, if applicable, creating and using an account to access any of the Services (“Account”), in each case, solely for your own use. You shall only access and use the Services for lawful purposes and in compliance with these Terms  and all applicable laws and regulations .

You shall not:

1. have more than one Account at any given time, and you shall not create an Account using a false identity or information, or on behalf of someone other than yourself;
2. use the Services to transmit unauthorized communications, advertisements, or solicitations, including chain letters, junk email, repetitive messages (spim and spam) or any similar communications to anyone;
3. use the Services in a manner that infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party;
4. use the Services, intentionally or unintentionally, in violation of any applicable law or regulation;
5. use, reuse, repost, distribute, provide access to others to, copy, modify, or transmit the Services and related information for any purpose other than those provided herein, including any commercial purpose;
6. attempt to gain access to the Services, Accounts registered to others or to the computers, servers, or networks connected to the Services by any means other than the user interface provided by us and through your Account, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, server or software that forms part of, is used for, or facilitates, the delivery of any of the Services;
7. interfere or attempt to interfere with the proper functioning of the Services or connect to or use the Services in any way not expressly permitted by these Terms;
8. reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Services, or to obtain any information from the Services using any method not expressly permitted by us;
9.  remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services; or
10. introduce malicious software into the Services.

Reservation of Rights.  OrderUp reserves all rights in and to the Services not expressly granted to you under these Terms. You do not acquire any ownership interest in the Services under these Terms. OrderUp, its licensors and service providers reserve and retain all of the rights, title and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you under the Terms or as owned by you prior to agreeing to these Terms. These Terms do convey or grant to you any rights to use or reference any of OrderUp’s trademarks, logos, product or service names or those of OrderUp’s licensors or service providers..

Account and Personal Information. In order for you to utilize the Services, you may either create an Account or utilize the Services as a “guest” user by providing us with certain personal information, which will be held and used in accordance with our Privacy Statement.

The following rules govern the security of your Account:

1. you will not share your Account credentials, let anyone else access your Account, or do anything else that might jeopardize the security of your Account; 
2. you are required to provide accurate Account information, which may include your credit or payment card (“Credit Card”) information, and update that information promptly after it changes;
3. in the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of your login information, you must immediately notify us and modify your login information; and
4. you are responsible for maintaining the accuracy, completeness and confidentiality of your Account information, and you will be responsible for all activities that occur under your Account, including activities of others to whom you have provided, or who have accessed, your Account credentials. We (as well as the Establishment, if you are a Patron) will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account information secure. If you discover any unauthorized use of your Account credentials or suspect that anyone may be able to access your Account, you should immediately change your password and notify us.

 Acknowledgement of Service. You acknowledge that, while the Transaction is between you and the relevant Establishment, the Establishment has authorized us to facilitate certain aspects of the Transaction on its behalf. You should direct any questions, claims or disputes about the Transaction to the Establishment, but please contact us if you have any questions about the Services. We are not responsible for examining or evaluating the quality, or any other aspect of the products or services offered by or purchased from any Establishment and will not have any liability or responsibility to you or any other person therefore. Any Establishment that allows you to use the Services to Settle a Transaction retains the right to settle the Transaction through other means should you fail to properly Settle your Transaction either as a result of your failure to use the Services to do so or if your payment is not properly processed. Any Establishment that allows you to Settle the Transaction via the Services retains the right to request that you authorize such settlement by other means including, but not limited to, signing a printed receipt or delivering a final check, bill or tab to you. You acknowledge that, should you dispute any charge that appears on your credit or debit card statement related to your use of the Services to Settle a Transaction, any chargeback for such charge shall apply to such Establishment and OrderUp will not have any liability to you.

Default Gratuity. You acknowledge and agree that we may pre-set a suggested gratuity (“Default Gratuity”) or a fixed gratuity (“Fixed Gratuity”) to be added to your bill . You can change the Default Gratuity at any time for any transaction and you acknowledge and agree that the Default Gratuity will be applied to each Transaction unless you modify it. You further acknowledge and agree that we will only pre-set a Fixed Gratuity where required by an Establishment and that such Fixed Gratuity cannot be modified.

Pending Charges; Test Authorizations. We may place an authorization hold on your Credit Card in connection with each Transaction or attempted Transaction to confirm the card is valid as part of our verification process. The authorization hold may temporarily appear on your Credit Card, but such hold will expire in accordance with the timeframe set forth by the issuer of such card or the Payment Processor.

You acknowledge and agree that OrderUp does not provide refunds via the Services. You hereby agree to seek any refunds of Transactions directly from the Establishments or your Credit Card issuer.

Third-Party Offerings. To enjoy certain third-party offerings made available in the Services, certain third-party terms (each, “Third-Party Terms”) may apply. Third-Party Terms will be presented for review and acceptance at the time that you undertake such activity within the Services, and any such Third-Party Terms shall constitute an agreement between you and such third party. We are not responsible for such third-party offerings. Further, the Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. By using the Services, you acknowledge and agree that OrderUp is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. OrderUp does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Materials or websites, or any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you.

Payment Processing.  When a Patron Settles a Transaction, the Payment Processor will be responsible for processing the total authorized payment amount, processed pursuant to the applicable Payment Processor agreement.

Availability of Services. OrderUp may change, suspend or discontinue the Services at any time, including the availability of any feature, by giving you advanced notice of such change either via email or by posting directly on the Services.

Maintenance. Scheduled system maintenance may take place from time to time, and during such time, the Services or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. You specifically acknowledge that outage and downtime may occur. If the Services are down when you attempt to complete a Transaction, you must make alternative arrangements to pay the applicable Establishment. 

Updates. OrderUp may develop and provide Service updates from time to time, which may include upgrades, bug fixes, patches and other corrections or new features (collectively, the “Updates”). Updates may also modify or delete in their entirety certain features or functionality. OrderUp has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed to form part of the Services and will therefore be subject to the terms of this Agreement. 

Communications. When you set up an Account and/or provide us with your contact information, you consent to receive communications from us regarding your Transactions. Your consent to receipt of such communications is not, and will not be, a condition to any purchase. If at any time you change your mind regarding your consent to receive such communications, you must contact us. You may opt out of receiving communications that are primarily commercial in nature at any time, but in order to stop receiving any and all communications from OrderUp (including communications related to Transactions and your Account), you will need to close your Account. If you enable the Services to send or receive SMS messages, standard text messaging rates or other carrier charges may apply to such use.

Push Notifications. OrderUp may send you “push notifications” if you opt-in and your device supports such communications. Should you wish to stop receiving push notifications, you may turn off these notifications through your Account or the applicable settings on your device.

Limitations on Availability. The Services are based in North America and are provided for access and use by persons in North America. We make no representation that the Services are available or permitted in any other location. Use of the Services is void where prohibited. You are fully responsible for your use of the Services, including compliance with any applicable laws and regulations. We may also impose limits on the use or access to the Services as required by law.

Term, Termination, and Modification. These Terms and the license and other rights granted herein commence when you start using the Services and continue until terminated by OrderUp or you. Unless otherwise agreed by you and OrderUp in writing: (a) you may terminate these Terms by deleting all instances of the Services and all copies of it from your mobile device and/or ceasing to utilize the Services; and (b) OrderUp may terminate these Terms at any time without notice in its sole discretion, close your Account and suspend, restrict or withdraw any or all Services to you, including if it ceases to offer the Services, or if you fail to comply with any of the Terms. Upon termination of these Terms: (i) all license and other rights granted to you under these Terms will terminate, and (ii) you must cease all use of the Service and destroy all copies, full or partial, of instances of the Service. You acknowledge that OrderUp may terminate these Terms (i) if you violate the Terms and/or any applicable law, rule or regulation and (ii) at any time and without reason, without liability to you. 

Disclaimers and Limitations of Liability. This section is important – please read it carefully – it limits OrderUp’s liability (and the liability of its affiliates) to you. These disclaimers and limitations apply only to the extent permitted by applicable law. Some jurisdictions do not allow disclaimers of implied warranties or limitations of liability, so this Section may not apply to you. 

(a)  Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, AND WE (AND OUR AFFILIATES AND THEIR AND OUR OFFICERS, DIRECTORS, AGENTS AND ASSOCIATES) (collectively, the “OrderUp Parties”) HEREBY DISCLAIM (AND YOU HEREBY WAIVE) ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OUR IMPLIED WARRANTIES WILL BE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW AND WE WILL ADHERE SOLELY TO THE MINIMUM AMOUNT OF IMPLIED WARRANTIES NECESSARY TO COMPLY WITH APPLICABLE LAW.

(b)  Limitation of Liability. ORDERUP WILL NOT BE LIABLE FOR ANY (I) INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OR ANY SIMILAR DAMAGES INCLUDING WITHOUT LIMITATION IN CONNECTION WITH OR RELATING TO THESE TERMS OR THE SERVICES, (II) DAMAGES DUE TO USE, PERFORMANCE OR OPERATIONS OF THE INTERNET OR USE OF THE INTERNET BY YOU; (III) LOSS OF DATA; (IV) LOST PROFITS; (V) BUSINESS INTERRUPTION; (VI) DAMAGES PURSUANT TO ANY THIRD-PARTY TERMS AND CONDITIONS, OTHER THAN AS AGREED IN THESE TERMS; OR (VII) CONTENT, PRODUCTS AND SERVICES OFFERED THROUGH THE SERVICES, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE. NEITHER WE NOR OUR AFFILIATES WILL HAVE LIABILITY TO YOU FOR DAMAGES IN EXCESS OF CAD50.00.

IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR REQUIRE EXCLUSIONS AND/OR LIMITATIONS OF LIABILITY THAT ARE DIFFERENT THAN THOSE SET FORTH ABOVE, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Release and Indemnification. You agree to indemnify, save, and hold the OrderUp Parties harmless from any claims, losses, damages, liabilities, including reasonable legal fees and expenses, arising out of your use or misuse of the Services, violation of these Terms, or breach of the representations, warranties, and covenants made by you herein. We reserve the right to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate with us in defending these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

Force Majeure. Without limiting the generality of the preceding limitations, we have no liability for any failure or delay resulting from any event beyond our reasonable control, including but not limited to power grid failure, Internet service disruption, labor strikes or lock-outs, governmental action, acts of terrorism or war, insurrection, coup, civil unrest, earthquake, hurricane, tsunami, fire, floods, public health emergencies, pandemics, acts of God or any similar event beyond our control.

Disputes Between Users. You are solely responsible for your interactions and Transactions with other users of the Services. You hereby agree to look solely to such other users and for any claim, damage or liability associated with any Transaction commissioned via the Services and expressly discharge and release OrderUp from any and all claims, damages and liabilities arising out of any act or omission of any other user or third party.

Updates to the Terms. We reserve the right to modify these Terms at any time. We may provide you with notice of such modifications, by sending you an email message or posting a message on the Services. Your continued use of the Services will signify your acceptance of the modifications to the Terms.

Assignment. OrderUp may assign its rights and obligations under these Terms and/or these Terms, in whole or in part, to another entity. 

Law and Jurisdiction. These Terms and any dispute arising out of or related to the Terms or the Services will be governed and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of law principles. You agree that any claim or dispute you may have against OrderUp must be resolved exclusively by a court located in Toronto, Ontario. You agree to submit to the personal jurisdiction of the courts located in Toronto, Ontario.

CONTACT US

Please contact us at [email protected] if you have any questions regarding these Terms.