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Updated: August 28, 2017
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THIS "AGREEMENT") CAREFULLY REGARDING THE USE OF THE ACCOMPANYING APPLICATION PROGRAMMING INTERFACE ELECTRONIC DOCUMENTATION ("API DOCUMENTATION"), COPYRIGHT © 2017, TOAST, INC., AS MAY BE UPDATED AND AMENDED BY TOAST FROM TIME TO TIME. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "YOU" OR "YOUR" WILL REFER TO SUCH ENTITY, AND “TOAST” “WE” “US” AND “OUR” WILL REFER TO TOAST, INC FOR AND ON BEHALF OF ITSELF AND ITS AFFILIATES AND SUBSIDIARIES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK ON THE "CANCEL" BUTTON TO DISCONTINUE THE DOWNLOAD OF THE API DOCUMENTATION.
1. Purpose of this Agreement.
We provide our customers with an online point-of-sale restaurant, hospitality and retail management and payment processing system, including without limitation, hardware, software and implementation services related thereto (collectively, the “Toast Services”). Toast also offers an application programming interface (the “Toast API”) that can link to and interact with third parties’ services, such as your application, product, and/or service (“Your Application”). The purpose of this Agreement is to provide you with access to, and use of, Toast’s API Documentation for the purpose of submitting a proposal to us for integrating Your Application with the Toast Services via the Toast API (the “Online Application”)
This Agreement does not grant you any right or license to access and/or use the Toast APIs or the Toast Services. Only upon Toast’s approval of your Online Application, and your acceptance of Toast’s API Terms of Service will you be granted a license to access and use the Toast APIs for the purpose of building an integration of Your Application with the Toast Services.
2. License Grant and Restrictions.
Subject to the terms and conditions of this Agreement, Toast grants you a limited, non-exclusive, non-transferable, revocable right and license to download, access, use, display and make a reasonable number of copies of the API Documentation for the sole and exclusive purpose of evaluating the Toast API as it relates to submitting an Online Application.
You acknowledge and agree that the API Documentation is the confidential and proprietary intellectual property of Toast, Inc. All rights not expressly granted herein are retained by us, and we retain all ownership, copyright, trademark, trade secret and other intellectual property rights in and to the API Documentation, as provided by us. Accordingly, you agree not to: (a) license, sell, rent, assign or transfer, or make the API Documentation available to any third party, or otherwise commercially exploit the API Documentation; (b) modify, or make derivative works of any part of the API Documentation; (c) use the API Documentation in order to build a product or service that replicates or attempts to replace the Toast Services; (d) use the API for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement; (f) use our name to endorse or promote any product or service, including Your Application. You will preserve all copyright and other proprietary rights notices in the API Documentation and all copies made thereof.
3. Term and Termination.
Upon any termination, the licenses granted hereunder will terminate and you will immediately destroy or return any copies of the API Documentation in your possession. Sections 3, 4, 5, 6 and 8 will survive termination of this Agreement.
4. Confidential Information.
During the Term, it is possible that we may provide you with additional non-public information or any other information which can be reasonably considered confidential, in addition to the API Documentation ("Confidential Information"). In such event, you hereby agree: (a) to use commercially reasonable efforts to hold in strict confidence and refrain from publication, dissemination, or any other disclosure to third parties of any Confidential Information received hereunder; (b) not to use any Confidential Information (whether oral or written) except in the performance of this Agreement and not to disclose such information to any third party; (c) Confidential Information will only be provided to those employees and contractors who have a need-to-know such information for purposes of this Agreement; and (d) each employee, contractor or representative that you select to have access to such Confidential Information covered by this Agreement will be bound by confidentiality obligations at least as stringent as those contained herein, and in no event, bound to less than a reasonable degree of care.
For purpose of this Section, Confidential Information does not include data or information: (v) which was already rightfully in your possession without an obligation of confidentiality prior to its disclosure, (w) which was or which becomes publicly known through no fault of your own, (x) which you rightfully receive from third parties who do not breach of an obligation of confidentiality to us, (y) which is approved for use or release by written authorization from us, or (z) which you can prove you independently developed without reference to our Confidential Information. If you receive legal process that demands or requires disclosure of Confidential Information, you shall give prompt notice to us and reasonably cooperate with the exercise of our right to challenge such demand.
You further recognize that the disclosure or use of Confidential Information in violation of the provisions of this Section may cause irreparable injury to us. In the event you breach or threaten to breach the provisions of this Section 4, we will, in addition to any other remedies we may have, be entitled to seek preliminary and permanent injunctive relief.
5. Limited Relationship.
You and Toast are independent contractors. Nothing in this Agreement shall be construed as creating a joint-venture, partnership, agency or employer-employee relationship. Neither party will have the authority or power to bind the other party, to contract in the name of, or create a liability against the other party in any way or for any purpose.
6. Disclaimer of Warranty, Limitation of Liability and Indemnity.
THE API DOCUMENTATION IS PROVIDED "AS IS," “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU ASSUME ALL RISK AND LIABILITY OF USING THE API DOCUMENTATION HEREUNDER AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS TOAST AND ITS AFFILIATES AND SUBSIDIARIES FROM AND AGAINST ANY CLAIMS, SUITS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) BROUGHT BY ANY THIRD PARTY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE API DOCUMENTATION, YOUR ONLINE APPLICATION OR YOUR BREACH OF THIS AGREEMENT.
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR OTHER DAMAGES OF ANY KIND, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY ARISING AS A RESULT OF THIS AGREEMENT, YOUR ONLINE APPLICATION, OR YOUR USE OF THE API DOCUMENTATION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Changes to this Agreement.
We reserve the right to make changes to this Agreement at any time, in our sole discretion, and you acknowledge and agree that you are responsible for regularly reviewing these terms for any such changes. Your continued use of the API Documentation after the effective date of such change will constitute your acceptance of such changes, subject at all times to either party’s right to terminate this Agreement in accordance with Section 3 above.
This Agreement is governed by the laws of the Commonwealth of Massachusetts, without giving effect to its choice of law principles. You agree to submit to the exclusive jurisdiction and venue in the state and federal courts sitting in Suffolk County, of the Commonwealth of Massachusetts, for any and all disputes, claims and actions arising from or in connection with the API Documentation or this Agreement. In any such dispute, the prevailing party will be entitled to attorney’s fees and expenses. You may not assign this Agreement, in whole or in part, without our prior written consent. Any such assignment by you, in violation of this section shall be null and void. We may freely assign this Agreement, in whole or in part, at any time with or without notice to you. This Agreement represents the entire agreement between the parties relative to the API Documentation, and supersedes any prior or contemporaneous communications of any kind between you and Toast, whether written or oral. This Agreement may only be modified in accordance with Section 7 above. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, void or unenforceable, such provision will be construed so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of this Agreement; and if such provision will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby.