For Merchants and Developers
User Terms of Service
1. Welcome to the LevelUp Platform
SCVNGR, Inc., doing business as LevelUp (“we” or “LevelUp” or “Company”)* partners with enterprise restaurant brands and their authorized licensees and franchisees (individually and collectively, “Restaurant”) to provide and/or enable Restaurant-branded mobile applications and on-line ordering websites (together, “App/s” or “LevelUp App/s”) for use by you (“User”). The LevelUp Apps enable: (i) the processing of mobile payments by Users (via the Restaurant’s App and at the Restaurant’s physical locations); (ii) in-App ordering; (iii) customer rewards, incentive, and loyalty programs (collectively, “Loyalty Programs”); (iv) and other related services (collectively (i)-(iv) are “Services” or “LevelUp Services”). LevelUp provides access to the Services and Apps, including this App, subject to your acceptance of all of the following Terms and Conditions (“User Terms” or “Agreement”).
By accessing, downloading, copying, and/or using a LevelUp App, as supported by the LevelUp platform (“LevelUp Platform”), including this App, and/or the Services, you agree to these User Terms.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH LEVELUP, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND LEVELUP EACH WAIVE THE RIGHT TO A TRIAL BY JURY. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST LEVELUP, WHETHER NOW PENDING OR FILED IN THE FUTURE. BY ENTERING 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 AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
2. LevelUp User Account
In order to use a LevelUp App to access the Services and/or engage in any Restaurant Loyalty Programs, you may register with LevelUp and create a LevelUp User Account (“LevelUp User Account” or “User Account”), and associate a valid debit and/or credit card with your User Account. The Services may also permit you to make purchases without a LevelUp User Account or without logging in to your User Account (e.g. as a guest). If you make a purchase in this manner, we may create an Account for you 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). Your registration and use of a LevelUp User Account or other use of the Services as a guest are subject to these User Terms.
By registering for a LevelUp User Account, you agree that:
- All information provided to LevelUp is accurate, current, and complete, and that you will maintain and update such information as it changes;
- You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions;
- You are of legal age to form a binding contract, or you are over the age of 13 and will use the User Account under the supervision of a parent or guardian who agrees to be bound by these User Terms. The LevelUp Platform, Services, and Apps are not intended for, nor targeted to, anyone under the age of 13;
- You do not and have never used or maintained any other LevelUp User Account under a different email address (the creation of additional User Account(s) shall be considered a violation of these User Terms); and
- Your registration and your use of the Services, including but not limited to any LevelUp App or website, is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.
Your registration and your User Account, including any User Credit Card, Gift Card Credit, or Restaurant Credit associated with such User Account, and your rights under this Agreement, are personal to you and are not transferable by you to any party.
Payment Methods. LevelUp enables you to make purchases from Restaurants through LevelUp’s systems by linking your LevelUp User Account to a debit, credit, and/or prepaid credit card issued in the United States bearing the trademarks of MasterCard International Inc., Visa Inc., American Express, and/or Discover, and also purchases via certain mobile payment providers (collectively, “Payment Instrument”). Your User Account is not a bank account. LevelUp is not a bank and does not offer banking or “money transmission services,” and is not a “money service business,” as those terms are defined by the United States Department of Treasury. By linking a Payment Instrument to your User Account, you represent to LevelUp that you are an authorized user of the Payment Instrument. You may change the Payment Instrument associated with your User Account at any time. You are responsible for ensuring that the Payment Instrument associated with your LevelUp User Account is at all times current, non-expired, and valid for payments.
Test Authorizations. By associating a Payment Instrument with your LevelUp User Account, you consent to LevelUp’s temporarily authorizing a charge on that Payment Instrument, typically for $1.00 or less, as part of our verification process. LevelUp may elect to make this temporary authorizing charge in its sole discretion. You will not be required to pay this charge, and it will disappear from your Payment Instrument statement within a few days.
Use of LevelUp User Accounts for Development Purposes. All uses of a LevelUp User Account for the purpose of developing software, applications, or programs that will interface with the LevelUp Platform, including without limitation to access any LevelUp SDK and/or associated APIs, and the use of the LevelUp Developer Sandbox, are additionally subject to LevelUp’s Developer Terms (https://www.thelevelup.com/developer-terms), which are incorporated herein by reference. By using your LevelUp User Account to access LevelUp’s development tools, you agree to all of the Developer Terms.
3. License to Use the LevelUp Apps and Websites; Intellectual Property
Limited License. LevelUp grants you a limited, non-exclusive, non-transferable license to access, view, download, install, and use the LevelUp App(s) solely for the purpose of using the LevelUp Services, including the initiation of orders to a Restaurant, payment for such orders, and participating in Restaurant Loyalty Programs. Except as expressly permitted by these User Terms, you may not modify, reproduce, distribute, publish, reverse-engineer, create derivative works out of, decompile, deep link, publicly display, or otherwise exploit for any purpose, the LevelUp Apps, Services or LevelUp Property (as defined below), or any portion thereof. You may not remove or alter, or reuse in any manner or for any other purpose, any copyright, trademark or other proprietary notices that have been placed on the LevelUp Property. You may not collect and use the product listing, pictures, or descriptions within the LevelUp Property for any commercial purpose. All rights not expressly granted to you by this Agreement remain the property of LevelUp and, if applicable, its licensors.
No Rights to LevelUp Property. The LevelUp App(s) and website content downloaded or accessed by you pursuant to these User Terms, including without limitation all of the text, images, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content, other than User Content, as defined below, and all software embodied in the LevelUp website or Apps, or otherwise used by LevelUp to deliver the LevelUp Services (collectively, the “LevelUp Property” or “Property”), are the sole property of LevelUp and/or of third parties provided under license to, or used with permission by, LevelUp. LevelUp reserves all rights in the LevelUp Property, including without limitation copyright, trademark, patent, and trade secret rights, and no rights in such Property are granted except as expressly provided herein.
Trademarks. The marks “LEVELUP,” “SCVNGR,” the LevelUp three-square logo, among other marks, and the LevelUp scanner, are registered or unregistered trademarks of LevelUp and may not be used in connection with any service or products other than those provided by LevelUp, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits LevelUp.
Patents. The systems and methods used by LevelUp to provide the LevelUp Services are protected by patents including U.S. Pat. Nos. 8,620,790, 8,639,619, 8,694,438, 8,844,812, D721,371, 8,770,478, 8,924,260, 8,838,501, 9,947,183, 9,530,289, 10,380,849, 10,489,765, 10,510,057, 10,592,883, and other pending applications, and no rights are hereby granted to such patents or applications.
No Illegal Uses. The LevelUp Property licensed hereunder shall not be used for any purpose not specifically contemplated by these User Terms, or for any illegal purpose, or to commit or facilitate any act by any person in violation of any law or regulation, and/or any fraud against any person.
Third-Party Property. The LevelUp Platform and Apps feature the trademarks, service marks, images, and logos of third parties, including those of LevelUp’s Restaurant partners (“Third-Party Property”). Each third-party owner retains all rights in such Third-Party Property. Any use of such marks, or any others displayed in any App, inures solely to the benefit of their respective owners. LevelUp’s use of such Third-Party Property does not imply any affiliation or relationship between LevelUp and the third party, nor any endorsement of LevelUp or the Services by such third party.
4. Authorization of Payments on the LevelUp Platform
Authorization for LevelUp to Charge Payment Instrument. By linking a Payment Instrument to your LevelUp User Account (including by tapping the “Link Card” authorization button within a LevelUp App), and by using an App to initiate a transaction at a Restaurant, to initiate a mobile order for goods provided by a third party, or to purchase a Restaurant Gift Card, you authorize LevelUp to charge your linked Payment Instrument as necessary to complete payment to LevelUp for the purchase or transaction, including for the total transaction amount less any credit redeemed in connection with your purchase. If such charge is rejected or fails, LevelUp may charge your Payment Instrument again at a later time without advance notice to you.
In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made using your LevelUp User Account, you also authorize a credit to your Payment Instrument by LevelUp to execute that transaction.
All purchases, orders, and charges authorized using an App and/or the LevelUp Services are also subject to the terms and conditions set forth by the entities that issue your Payment Instrument. You are responsible for complying with those terms and conditions, and you are responsible for payment of all charges and related fees imposed by such entities pursuant to those terms and conditions.
There is no limit on the frequency of transactions you may make using your LevelUp User Account. However, LevelUp reserves the right to impose limits without notice on the amount of transaction(s) you make at any Restaurant.
Failed Transactions. In the event that LevelUp is unable to successfully charge any linked Payment Instrument, LevelUp will notify you via email and/or in-App notification, and you will be unable to initiate further orders or transactions with your User Account. Upon LevelUp’s notification to you of such failure, you agree to link a new, valid Payment Instrument within three (3) business days. Your LevelUp User Account will be disabled until a valid Payment Instrument is provided and the outstanding uncharged balance is resolved by LevelUp. LevelUp is not responsible for any charges imposed by the issuer of your Payment Instrument as a result of any failed charge by LevelUp. To the extent that LevelUp is unable to successfully charge any Payment Instrument linked to your User Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that LevelUp may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to LevelUp. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your User Account and all monies owed thereunder. You agree that LevelUp, or any agency or business employed by LevelUp, has the right to contact you and your heirs via telephone, email or in-person using the information you provided upon registration or during any contact with LevelUp, in an effort to collect any monies and fees owed under your User Account, whether specifically referenced in these User Terms or not, and such contact may be made in a manual or automated fashion.
Prohibited Transactions. The Services may be used only for the bona fide purchase and exchange, through LevelUp, of goods and/or services offered in the ordinary course of a Restaurant’s business, and may not be used to process a payment or otherwise transfer money between two parties. The Services may not be used for transactions in which you request cash back from a Restaurant. The Services shall not be used for the purpose of accepting or transferring security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity, nor shall the Service be used in any other way that is inconsistent with the purposes of the LevelUp Services or in a way that LevelUp deems inappropriate in its sole discretion. LevelUp reserves the right to decline any attempted transaction if it appears that any of these User Terms have been violated.
Debit/Credit Card Statements. LevelUp charges to your authorized Payment Instrument(s) may appear on your statement from the card issuing institution as “LEVELUP*” followed by an identifier related to the location where the transaction initiated and the Restaurant you ordered from.
Transaction Receipts. Following each LevelUp transaction initiated using a LevelUp App, LevelUp will provide you with an electronic transaction receipt through a message within the LevelUp App and/or by email to the email address provided by you. The receipt will include the date, location, and amount of the transaction, as well as the identity of the Restaurant at which the transaction occurred. Your transaction history may also be viewed within a LevelUp App.
5. Consent to Electronic Disclosures and Notices; Paper Copies
Your electronic acknowledgement of this Agreement has the same effect as if you signed it in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if LevelUp had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time posted to our website, or emailed or messaged to you.
In the event that you wish to access and/or retain electronic Disclosures, you will need, and represent that you have, the following: (i) a computer or mobile device with an internet connection; (ii) a valid email address associated with your User Account that can receive emails from the @thelevelup.com; and (iii) sufficient storage space to save past Disclosures and/or an installed printer to print them.
You have a right to receive Disclosures in paper form. If you wish to receive a paper copy of any Disclosure or transaction receipt, you may request a copy of the Disclosure or receipt within 180 days of the date thereof, and LevelUp will provide it free of charge. Requests to receive any paper copy, or to withdraw your consent to future electronic Disclosures, may be made by mailing a written request to Support Team, One Center Plaza, Sixth Floor, Boston, MA 02108-1887. We will provide a replacement copy of your receipt within ten (10) business days. Requests to cancel your consent to future electronic Disclosures will be completed in a reasonable time. However, LevelUp reserves the right to terminate your LevelUp User Account if you withdraw consent to future electronic Disclosures. You may update the information required to contact you electronically by logging into a LevelUp App or to the LevelUp website.
6. Unauthorized Transactions; Lost Devices; Error Resolution
If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you will contact LevelUp immediately at:
LevelUp Support Team
One Center Plaza, Sixth Floor, Boston, MA 02108-1887
Toll Free Phone: 1-855-538-3542
Lost Devices. In the event that you lose any mobile device on which a LevelUp App linked to your User Account is installed, or otherwise learn that your User Account password is compromised (“Lost Device”), you shall notify LevelUp immediately by contacting our support team via the above-listed address, email address, and/or telephone number.
LevelUp Security; Reporting Requirements. LevelUp implements a variety of methods and proprietary protocols to protect you from bad actors who may attempt to access and make fraudulent charges using your LevelUp User Account. We generally will not seek reimbursement from you to recover any fraudulent charges made using your User Account. However, there are limits to this policy, which may depend on how quickly you notify us of fraudulent activity and other factors.
LevelUp will in good faith review and confirm the unauthorized or fraudulent transaction(s) if you notify us within sixty (60) days of the transaction receipt or Lost Device. In such case, LevelUp may in its sole discretion refund you no more than (and up to) $500 of lost value.
However, if you fail to notify LevelUp of a fraudulent or unauthorized transaction using your User Account within sixty (60) business days of a transaction receipt, or in the case of a Lost Device, within sixty (60) business days of the Lost Device, you will be solely responsible for all such fraudulent or unauthorized charges.
In the event that the state in which you established your User Account provides for lower limitations on liability for fraudulent use, such limitation shall apply in place of these provisions. You are solely responsible for any Gift Card Credit, as defined below, associated with your LevelUp User Account, and LevelUp is not responsible for the loss of Gift Card Credit associated with fraudulent use of your User Account.
Issuing Institutions. To the extent that the security of your Payment Instrument(s) is compromised in an event having no relation to the LevelUp Platform (for example, your wallet is stolen), and your Payment Instrument is linked to another User Account, your liability for any fraudulent transactions will be determined by your agreement with the institution that issued your Payment Instrument. With respect to your card-issuing institution, federal law provides that, should LevelUp fail to resolve a dispute as to property or services purchased from LevelUp, you may assert against your card issuing institution all claims (other than tort claims) and defenses arising out of the transaction and relating to the failure to resolve the dispute.
User Fraud. By registering for a LevelUp User Account, you agree to all additional fees and penalties that LevelUp may impose in the event LevelUp deems your use of the LevelUp platform to be in breach of these User Terms, including without limitation the immediate termination of your LevelUp User Account. Further, you agree not to knowingly falsely report charges that you have authorized, as fraudulent or unauthorized claims to your Payment Instrument issuing institution. A knowingly false report of a fraudulent or unauthorized charge shall be grounds for LevelUp, in its discretion, to cancel your User Account, and to seek any other remedies available to LevelUp.
7. Loyalty Campaigns to Earn/Redeem Rewards (Restaurant Incentive and Reward Campaigns)
Automatic Enrollment. When initiating a LevelUp transaction at a Restaurant or initiating online orders from a LevelUp App, you participate automatically in any Loyalty Programs offered by the LevelUp Restaurant partner and/or third-party partners offering rewards to the Restaurant’s LevelUp Users; you also automatically earn any Restaurant-offered rewards, incentives, or discounts (collectively “Restaurant Credit”) and/or third-party-offered incentives, rewards, or discounts (collectively “User Credit”) associated with your transaction.
Automatic Redemption. LevelUp will also automatically redeem any Restaurant or User Credit previously awarded at the time of purchase via the participating Restaurant’s point-of-sale (“POS”) system at the time an online or in-store order is completed, in accordance with the terms of such Restaurant Loyalty Program. Restaurant or User Credit applied to the purchase will be deducted from the transaction amount charged by LevelUp as part of the authorized charge to the Payment Instrument(s) associated with your User Account.
Non-LevelUp Loyalty Programs Are Excluded. Loyalty Program rewards applied to order-ahead or in-store transactions in a Levelup App will include only those rewards displayed in the App, and may not include all rewards advertised by a Restaurant or offered by a Restaurant through other channels, nor rewards in connection with mobile apps or websites other than a Levelup App. Third party loyalty programs offered through channels, programs, or apps not integrated with the LevelUp Platform, will not be available when using the Services for purchases and ordering.
Restaurant is Solely Responsible For Its Loyalty Program. Promotional programs, and Restaurant or User Credit associated with Loyalty Programs are offered by the Restaurant, or funding third-party, alone (and not by LevelUp), and the offering parties are responsible for: (i) setting applicable rules, including without limitation, the expiration of any Restaurant or User Credit; and (ii) assessing or determining any User’s compliance therewith. Any complaints concerning any Restaurant’s or third-party’s failure to award or redeem Restaurant or User Credit according to any Program may be sent to LevelUp at: firstname.lastname@example.org, or by calling 1-855-538-3542. While LevelUp may, in its discretion, attempt to resolve any complaints concerning any failure to award or redeem Restaurant or User Credit, under no circumstances will LevelUp be liable or otherwise responsible for any Loyalty Program, Restaurant Credit, or User Credit; nor will LevelUp be liable or otherwise responsible for any failure by you to earn, accrue, or redeem any Restaurant or User Credit for any reason. You are solely responsible for complying with the terms and conditions governing any Loyalty Program.
Restaurant is solely responsible for any unclaimed property liability arising from unredeemed Restaurant Credit, or any portion thereof. Restaurant may choose to discontinue a Loyalty Program at any time. LevelUp also reserves the right to terminate a Restaurant’s Loyalty Program, or your participation therein, at any time.
Notwithstanding anything to the contrary herein, Restaurant or User Credit associated with any Restaurant Loyalty Program has no cash value. You have no property interest in any Restaurant or User Credit. If a Loyalty Program is terminated for any reason, or if your User Account is suspended or terminated for any reason, any existing Restaurant or User Credit will expire immediately.
Redemption or application of Restaurant or User Credit for alcoholic beverages is at the sole discretion of the Restaurant, and is subject to (and may be limited by) Restaurant’s compliance with applicable federal, state, and local laws and regulations. Restaurants may refuse to apply Restaurant or User Credit to delivery, processing or handling fees, or taxes or gratuities. Additionally, Restaurant may limit or restrict the component parts of any order or purchase so that only certain items accrue User Credits in the Loyalty Program, or exclude non-item charges such as fees, taxes, and gratuities so that they do not count toward the User’s transaction total in assessing any Loyalty Program rewards or earned User or Restaurant Credits.
Neither LevelUp nor Restaurant has any obligation to refund you for any unredeemed User or Restaurant Credits or any other benefit associated with a Loyalty Program following the cancellation, suspension, or modification or any Loyalty Program or your LevelUp User Account.
8. Your Orders
LevelUp enables users to transact with LevelUp and to initiate online and in-store orders with our Restaurant partners and/or, where available, delivery services provided by Restaurant or a third-party delivery services provider. LevelUp does not warrant the completeness or accuracy of any Restaurant information, including menu information, product descriptions, ingredient lists, calorie count, or business operation information.
LevelUp may charge you certain fees in addition to the amounts charged by the Restaurant in connection with a LevelUp transaction utilizing LevelUp’s mobile ordering services. One or more of these fees, as applicable to your transaction, will be displayed in the App and in your email receipt as a fee and/or surcharge and may be listed as "Service Fee," “Delivery Fee,” “Small Order Fee” or other fee. LevelUp reserves the right to establish, remove, and/or revise fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time; in the event that such changes are made, LevelUp will take reasonable commercial measures to disclose such changes to you. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower than the total amount due. Therefore, LevelUp reserves the right to charge the final price after checkout, including, without limitation, all applicable transaction taxes.
9. Privacy, Security, and User Data
Payment Instrument Security. LevelUp is compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”). LevelUp does not share your Payment Instrument information with any person other than as necessary to process the payments you authorize. LevelUp does not store your Payment Instrument information. Presently, we partner with Braintree Payment Services (“Payment Services Provider”), a globally respected payment gateway, to leverage its secure vault solutions for all Payment Instrument storage. All payment data sent to LevelUp's servers is encrypted and our servers are protected by industry-standard security measures. By leveraging a Payment Services Provider for storage, we are able to add another layer of security to LevelUp. If you have any further questions about LevelUp’s security measures, we provide our Security Policy at https://www.thelevelup.com/security-policy.
No Access to Financial Information. LevelUp Apps are not able or authorized to capture or store your financial account information provided to LevelUp, or details of your linked Payment Instruments, including on your mobile device, without your expressly granted permission. You should not be asked by any Restaurant to disclose your financial account information, or your Payment Instrument information, or to provide any other sensitive information such as your Social Security number, in connection with any LevelUp transaction. If you are asked for such information, you should report the incident to LevelUp immediately.
Revocation or Permissions. You may revoke permissions granted to a LevelUp App at any time by logging in to the LevelUp website at https://www.thelevelup.com/.
10. Restaurant Gift Cards & Stored Value Credit
LevelUp enables you to give and receive digital Restaurant gift cards online or through certain LevelUp Apps, and to purchase and/or redeem digital or plastic Restaurant gift cards (together, “Restaurant Gift Card(s)”). LevelUp also enables you to pre-pay toward your own account (“Restaurant Preload Credit”), which prepaid funds are associated with a specific Restaurant and are redeemable only by you, the purchaser. Restaurant Gift Cards and Restaurant Preload Credit will be referred to herein, collectively, as “Restaurant Stored Value.”
Restaurant Stored Value may only be used to purchase goods or services from the specific Restaurant identified on the Restaurant Gift Card or associated with the Preload credit (the “Stored Value Restaurant”). The Stored Value Restaurant may limit the Restaurant’s participating locations at which you may use Restaurant Stored Value and may also place limitations on purchases you can make, including in-store and/or on-line.
Restaurant Stored Value is issued by the Restaurant identified on the Restaurant Gift Card or Restaurant Preload Credit transaction receipt. LevelUp does not issue Restaurant Stored Value and shall have no liability or other obligations (including, but not limited to, financial obligations) related thereto.
When Restaurant Stored Value credit (“Stored Value Credit”) is linked to your LevelUp User Account, the available funds will be applied automatically whenever you scan your LevelUp QR code at checkout at the Stored Value Restaurant. If the linked Restaurant Stored Value Credit balance is less than the transaction amount, you authorize LevelUp to charge your linked Payment Instrument in your LevelUp account for the remaining transaction amount.
Neither LevelUp nor the Stored Value Restaurant will charge you fees related to your Restaurant Stored Value, including for the purchase, issuance, activation, or use of Restaurant Stored Value. Your Restaurant Stored Value, and all credit associated therewith, has no expiration date.
Except where required by law, any balance associated with Restaurant Stored Value is nonrefundable and may not be resold or redeemed for cash or other gift cards. Any refund related to a purchase made with Restaurant Stored Value will be credited back to the Restaurant Stored Value account used for the initial payment.
You may purchase a digital Restaurant Gift Card for a designated recipient by entering the email address of the recipient through certain Restaurant LevelUp Apps. The recipient will be notified of the gift card by email and/or through an in-app notification, and may claim the Gift Card: (i) in certain LevelUp Apps; (ii) by clicking a link in the email and entering their LevelUp User Account credentials to associate the Gift Card with their account; or (iii) by clicking a link in an email to activate the Gift Card and by printing the email displaying the email’s QR code at a Restaurant point-of-sale scanner. Your LevelUp User Account will be charged when you purchase the Restaurant Stored Value.
LevelUp Restaurant Stored Value may be purchased in any amount up to $500.00. LevelUp may impose a cap of Stored Value Credit associated with a LevelUp User Account at any time, and in an amount determined by LevelUp at its sole discretion. If you are a new LevelUp User, LevelUp may in its discretion limit the amount of a purchased Restaurant Gift Card to a lower amount.
Restaurant or LevelUp User Credit or accrued loyalty may not be redeemed for the purchase of Restaurant Stored Value nor applied to the payment of tips (where applicable). The purchase of Restaurant Stored Value will not count toward any Restaurant Loyalty Program unless specified otherwise. Other limits may apply to Restaurant Stored Value redemption and use.
LevelUp disclaims all express or implied warranties, including warranties of merchantability or fitness for a particular purpose, as to Restaurant Stored Value, to the extent permitted by law.
Restaurant Stored Value terms are subject to change in Stored Value Restaurant’s sole discretion, in accordance with applicable law.
LevelUp and the applicable Stored Value Restaurant reserve the right to adjust the balance of Restaurant Stored Value in the event of a clerical, billing, or accounting error. Transactions or corrections concerning Restaurant Stored Value may be disputed by contacting LevelUp Support within 60 days of the disputed transaction or correction.
For Plastic Restaurant Gift Cards Only: Plastic Restaurant Gift Cards can be used to make a purchase at a Restaurant location by scanning the QR code on the card, or they can be linked to your LevelUp User Account by simply using your phone to scan the LevelUp QR code on the plastic card, or by entering the card information online at https://www.thelevelup.com/login. Once linked to a LevelUp User Account, a Plastic Restaurant Gift Card is not transferable to another user, and the code on the Plastic Restaurant Gift Card may no longer be usable for purchases. Plastic Restaurant Gift Cards are not reloadable. LevelUp is not responsible for lost, stolen, damaged, or destroyed Plastic Restaurant Gift Cards, or for any unauthorized use of a Plastic Restaurant Gift Card. Risk of loss and title for the Plastic Restaurant Gift Card and associated Gift Card Credit pass to you, the purchaser, and you are solely responsible for loss or unauthorized use of the Plastic Restaurant Gift Card. To help secure your Plastic Restaurant Gift Card, please link it to your LevelUp User Account. Do not share your LevelUp login information with others. If you suspect that someone has copied or stolen your Plastic Restaurant Gift Card, contact LevelUp Support Support at 1-855-538-3542 or email@example.com, immediately. Plastic Restaurant Gift Cards will not be replaced if lost or stolen without proof of purchase. In the event a Plastic Restaurant Gift Card does not work, your sole remedy is the replacement of such Plastic Restaurant Gift Card; subject to applicable law, LevelUp and Restaurant shall have no liability to you beyond replacement (at the last value stated in LevelUp’s records) with respect to any nonfunctional Plastic Restaurant Gift Card.
Your Restaurant Stored Value balance can be viewed within a LevelUp App, by logging into your LevelUp User Account at https://www.thelevelup.com/login, or by contacting LevelUp Support at 1-855-538-3542 or firstname.lastname@example.org.
11. Third Party Websites and Apps
The LevelUp Apps and Services 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"). LevelUp does not review, monitor, operate and/or control the Third Party Websites, and LevelUp 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, LevelUp 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. LevelUp reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
12. Ideas Submitted to LevelUp; User Content
User Ideas. LevelUp is pleased to hear from you and welcomes your comments about the LevelUp Services. If you submit ideas or suggestions for the LevelUp platform (“Comments”), you agree that all Comments will be deemed, and will remain, non-confidential and the sole property of LevelUp, without compensation to you. None of the Comments will be subject to any fiduciary obligation or obligation of confidence on the part of LevelUp, and LevelUp will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, LevelUp will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.
13. Copyright Infringement; Digital Millennium Copyright Act
LevelUp 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 a LevelUpApp or through our Services in a way that constitutes copyright infringement, please provide LevelUp (address below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
- Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the LevelUp Platform; Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
- Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
- A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to: LevelUp, Attention: Copyright Agent, One Center Plaza, Sixth Floor, Boston, MA 02108-1887.
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.
Please note that this procedure is exclusively for notifying LevelUp that you believe that your copyrighted material has been infringed. The preceding requirements are intended to comply with LevelUp’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, LevelUp has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. LevelUp may also in its sole discretion limit access to the LevelUp App and the Services, and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
14. Suspension; Modifications and Termination
Termination by User. You may terminate this Agreement at any time by closing your LevelUp User Account and ceasing to use the LevelUp Services and all LevelUp Apps.
Termination by LevelUp. LevelUp reserves the right to reject, suspend or terminate your User Account and/or your access to the LevelUp Services at any time, without notice to you, if it believes, in its sole and absolute discretion, that you are in breach of this Agreement, or if it believes that you are using the LevelUp Services or any LevelUp App in a manner harmful to or intending to cause harm to LevelUp, its Restaurant partners, users, or any other third party. Any such termination, suspension, or modification will terminate any Restaurant or User Credit that you earned prior to termination.
Modification of Services and Terms. LevelUp reserves the right to modify the Services and LevelUp Apps, any features or aspects of the Services or Apps at any time, without notice to you. LevelUp may also from time to time amend, update, or change these User Terms. If LevelUp does so, it will notify you by posting the amended terms on our website. You are under a continuing obligation to review the current version of these User Terms and other published LevelUp policies when using the LevelUp Apps and/or Services. You agree that your continued use of your LevelUp User Account, the LevelUp Services, or the LevelUp Apps shall constitute your agreement to the User Terms as so amended. If you do not agree to the amended User Terms, you must terminate your User Account and cease using the LevelUp Services and LevelUp Apps.
Obligations in the Event of Termination. If your LevelUp User Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the LevelUp Services and all LevelUp Apps, (c) that the license provided by LevelUp under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of the User Data stored by LevelUp, and (e) that LevelUp shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of LevelUp or for termination of access to your LevelUp User Account.
Sections 3-5, 8, 9, and 12-18, any accrued rights and remedies hereunder, including specifically LevelUp’s rights to retain and use User Data and complete any authorized transactions, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
15. No Warranties
LevelUp does not warrant that the Services or LevelUp Apps will operate error-free or without downtime. LevelUp may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to the Service.
THE LEVELUP APPS, LEVELUP PLATFORM, LEVELUP PROPERTY, AND/OR LEVELUP SERVICES, AND ALL CONTENT THEREIN 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 LEVELUP APPS, LEVELUP PLATFORM, LEVELUP PROPERTY, AND/OR LEVELUP SERVICES, AND ALL CONTENT THEREIN, 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. LEVELUP DOES NOT REPRESENT OR WARRANT THAT THE LEVELUP APPS, LEVELUP PLATFORM, LEVELUP PROPERTY, AND/OR LEVELUP SERVICES, AND ALL CONTENT THEREIN WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE LEVELUP APPS, LEVELUP PLATFORM, LEVELUP PROPERTY, AND/OR LEVELUP SERVICES, AND ALL CONTENT THEREIN ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. LEVELUP DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE LEVELUP APPS, LEVELUP PLATFORM, LEVELUP PROPERTY, AND/OR LEVELUP SERVICES, AND ALL CONTENT THEREIN 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 LEVELUP APPS, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT LEVELUP OR THE RESTAURANT) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE LEVELUP APPS, LEVELUP PLATFORM, LEVELUP PROPERTY, AND/OR LEVELUP SERVICES, AND ALL CONTENT THEREIN. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
LEVELUP SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND LEVELUP'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LEVELUP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LEVELUP RELIES UPON ITS RESTAURANT PARTNERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. LEVELUP DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE LEVELUP APPS OR 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.
LevelUp is not responsible for the food and beverage purchases that you may make using the LevelUp Services or any LevelUp App. The Restaurant Partner is responsible for all customer service related to those food and beverage purchases, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, and issues concerning experiences with a Restaurant’s personnel, policies, or processes. LevelUp is also not responsible for any customer service related to your Payment Instrument(s).
Because we do not control the security of the internet, or other networks you use to access the LevelUp Services, LevelUp is not responsible for the security of information that you choose to communicate with LevelUp while it is being transmitted. LevelUp is not responsible for any data lost during transmission.
16. Limitations of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL LEVELUP 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 LEVELUP 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 LEVELUP APPS OR BY LEVELUP. LEVELUP 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 LEVELUP APPS. LEVELUP 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 LEVELUP APPS, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THE LEVELUP 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 LEVELUP'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 LEVELUP OR A LEVELUP RESTAURANT PARTNER, IF ANY, OR (B) $1,000 (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 PERMITTED BY LAW.
YOU AND LEVELUP 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 LEVELUP AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF SERVICE ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE LEVELUP APPS AND SERVICES.IMPORTANT NOTE TO NEW JERSEY CONSUMERS
With respect to any unauthorized, fraudulent transaction conducted using your User Account, absent any violation of these User Terms by you, your right to reimbursement for any direct losses (i.e., losses not refunded by your Payment Instrument issuing entity) as set forth herein shall be your sole and exclusive right and remedy for any loss or damages incurred by you arising out of, in connection with, or relating to any fraudulent or unauthorized use of your LevelUp User Account, and LevelUp may condition its payment of any fraud or unauthorized use reimbursement upon your releasing LevelUp from any further claims with respect thereto.
An action or proceeding relating to any claim arising out of the LevelUp Services or any LevelUp App must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
17. Governing Law
Except for the “Dispute Resolution” section below, the terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The Federal Arbitration Act will govern the interpretation and enforcement of the “Dispute Resolution” section.
Also, regardless of any statute or law to the contrary, you must provide notice to LevelUp, pursuant to the procedures in the “Dispute Resolution” section below, of any claim within one year of its accrual, or your claim will be waived and barred.
18. Dispute Resolution (Arbitration and Class Action Waiver)
PLEASE READ THIS “DISPUTE RESOLUTION” SECTION CAREFULLY. IT LIMITS THE WAYS YOU CAN SEEK RELIEF FROM LEVELUP AND REQUIRES YOU TO ARBITRATE DISPUTES ON AN INDIVIDUAL BASIS.
I. Informal Dispute Resolution Procedure.
There might be instances when a dispute arises between you and LevelUp. In those instances, LevelUp is committed to working with you to reach a reasonable resolution; however, we can only do this if we know about and understand each other’s concerns. Therefore, for any issue or dispute that arises between you and LevelUp, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This includes first sending a written description of the dispute to the other party. For any dispute that LevelUp initiates, we will send our written description of the dispute to the email address associated with your account. The written description must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; and the relief sought.
You and LevelUp then agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference between you and LevelUp. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party's counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This should lead to resolution, but if for some reason the dispute is not resolved satisfactorily within sixty (60) days after receipt of the written description of the dispute, you and LevelUp agree to the further dispute resolution provisions below.
To reiterate, this informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
II. Mutual Arbitration Agreement.
You and LevelUp agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement or payments by or to LevelUp, or that in any way relate to your use of the LevelUp Platform, the Services, and/or other content on the LevelUp Platform, your relationship with LevelUp, or any other dispute with LevelUp, shall be submitted exclusively to binding arbitration. This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior Agreement as well as claims that may arise after the termination of this Agreement.
Notwithstanding the foregoing, issues related to the scope, validity, and enforceability of this Arbitration Agreement are for a court to decide. Also,each party retains the right to (1) elect to have any claims heard in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction and (2) 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 confidential or proprietary information or 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 BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND LEVELUP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
III. Class Action and Collective Relief Waiver.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT IN SECTION VII BELOW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS, JOINT, COLLECTIVE OR CONSOLIDATED BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS CLAIMS AS A PRIVATE ATTORNEY GENERAL OR FOR PUBLIC INJUNCTIVE RELIEF). UNLESS BOTH YOU AND LEVELUP OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS (EXCEPT AS SET OUT IN SECTION VII BELOW), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS, JOINT, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING ANY DECLARATORY OR INJUNCTIVE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE PROCEEDING.
This Class Action and Collective Relief Waiver is an essential part of this “Dispute Resolution” section, and if it is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor LevelUp is entitled to arbitration of such claim or dispute. Notwithstanding the foregoing, if a court determines that the Class Action and Collective Relief Waiver is not enforceable as to a particular claim or request for relief and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims.
IV. Arbitration Rules.
The arbitration will be administered by the American Arbitration Association ("AAA"). If AAA is not available to arbitrate, the parties will select an alternative arbitration provider. 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 or by calling the AAA at 1-800-778-7879.
V. Arbitration Process.
If after sixty (60) days the Informal Dispute Resolution Procedure above is unsuccessful in resolving the parties’ dispute, 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 AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
VI. Arbitration Location and Procedure.
Unless you and LevelUp otherwise agree, the arbitration will be conducted in the county where you reside. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and LevelUp submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, 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. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and LevelUp, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
VII. Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands presented by or with the assistance or coordination of the same law firm or organization are submitted to AAA or another arbitration provider (if AAA is unavailable) against LevelUp within a 30-day period (or in otherwise close proximity), the arbitration provider shall (i) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with LevelUp and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “Batch Arbitrations” provision shall in no way be interpreted as authorizing class arbitration of any kind. LevelUp does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section VII.
VIII. 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 will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Agreement. The arbitrator's award of damages and/or other relief must be consistent with section III above and also 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.
Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), LevelUp will have the right to recover attorneys’ fees and expenses.
Your responsibility to pay any AAA filing, administrative, and/or arbitrator fees will be solely as set forth in the applicable AAA Rules (as modified by section VII above). If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, LevelUp will pay as much of the filing, administration, and/or arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive to you.
X. Right to Opt-Out of Arbitration.
LevelUp’s updates to these Terms and Conditions do not provide you with a new opportunity to opt out of the Mutual Arbitration Agreement if you previously agreed to an Agreement and did not validly opt out of arbitration. LevelUp will continue to honor any valid opt outs if you opted out of the Arbitration Agreement in a prior version of the Terms and Conditions. If you create a LevelUp account for the first time on or after February 2, 2021, you may opt out of this Mutual Arbitration Agreement. To opt out, you must notify LevelUp in writing no later than 30 days after first becoming subject to this Mutual Arbitration Agreement. Your notice must include your name and address, the email address you currently use to access your LevelUp account (if you have one), and a clear statement that you want to opt out of this Mutual Arbitration Agreement. You must send your opt-out notice to: email@example.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with LevelUp or may enter into in the future with LevelUp.
LevelUp reserves the right to change this "Dispute Resolution" section, but any such changes will not apply to any individual claim(s) for which you have already provided notice to LevelUp. If LevelUp changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the LevelUp App/s and/or LevelUp Platform after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing LevelUp written notice of such rejection by mail or hand delivery to: LevelUp, Attn: Dispute Resolutions, One Center Plaza, Sixth Floor, Boston, MA 02108-1887, or by email from the email address associated with your account to: firstname.lastname@example.org, within 30 days of the date such change became effective, as indicated in the "Effective" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and LevelUp in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).cost-prohibitive to you.
19. Miscellaneous Provisions
This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties.
No delay or omission by LevelUp in exercising any of its rights occurring upon any noncompliance or default by you with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by LevelUp of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
Except as provided in §16 above, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
In no event shall LevelUp be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside LevelUp’s reasonable control.
The provisions of this Agreement are entered into for the benefit of LevelUp and its Restaurant Partners, and each of them shall have the right to enforce such provisions of this Agreement, including the arbitration clause, directly against you to protect their interests. Except as stated in the preceding sentence, there shall be no third-party beneficiaries to this Agreement.
In the event of a conflict between this Agreement and any other LevelUp agreement or policy provided to you, directly or indirectly, this Agreement shall prevail on the subject matter of this Agreement.
* SCVNGR, Inc. is a wholly-owned subsidiary of Grubhub Holdings Inc. (“Grubhub”). Grubhub is not a party to these User Terms and assumes no liabilities or benefits hereunder. These User Terms do not apply to the Grubhub platform or services.
Effective Date of these Terms of Service: February 2, 2021