Updated: January 24, 2020
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST TOAST TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TOAST ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
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 provides a number of application programming interfaces (referred to hereinafter, following Toast’s approval, as described in Section 2.1 below, individually, as the “Toast API” or, collectively, the “Toast APIs”) 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 the terms and conditions subject to which You are authorized to access and use the Toast API(s).
Your use of the Toast APIs hereunder is also governed by the Toast Privacy Statement, available at https://www.toasttab.com/privacy, which is incorporated herein by reference and made part of this Agreement.
2. Permitted API Use, License Grant and Restrictions.
2.1 Following the submission of your written request to utilize the applicable Toast API(s) and receipt of Toast’s subsequent approval, You shall only use the Toast API(s) for the sole and exclusive purpose of building, testing and utilizing an integration of Your Application with the Toast Services via the Toast API to facilitate the transmission of information among You, Toast and our Merchants (as defined in Section 7.2.2) (as the case may be as provided for within this Agreement (“Permitted API Use”).
2.2 Subject to your compliance with the terms and conditions of this Agreement, Toast grants you a limited, non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty free, revocable right and license to download, install, access, use, and display the Toast API(s) for the Permitted API Use with the Toast Services in a either a non-production or production environment.
2.3 You acknowledge and agree that the Toast API(s) and any associated documentation provided by Toast as part of this Agreement, including but not limited to the documentation found within the Toast API Developer’s Guide (dev.toasttab.com) (the “Documentation”) are the confidential and proprietary intellectual property of Toast, Inc. and this Agreement does not convey any ownership or other rights in and to the Toast API, Documentation, or any content or data (including but not limited to Toast Data (as defined in Section 11.1 below)) as provided by us, or Processed through Your use of the Toast API(s), except as expressly set forth herein. All rights not expressly granted herein are retained by Toast, and we retain all patent, copyright, trade secret, trademark, moral, goodwill, and any and all other intellectual property rights that are in existence now and in the future (the “Intellectual Property Rights”) in and to the Toast Proprietary Content “Toast Proprietary Content” means the Toast APIs, the Documentation, and any data and content as provided by us.
2.4 Accordingly, you agree you shall: (i) not take any action inconsistent with Toast’s Intellectual Property Rights; (ii) only use Toast’s Proprietary Content and other data forming part of this Agreement (including but not limited to Toast Data) in the manner prescribed in this Agreement and in accordance with the Permitted API Use, (iii) ensure that only your employees who are authorized to use the Toast APIs on your behalf do so only for a Permitted API Use, and ensure each such employee complies with the terms and conditions herein; (iv) not use, copy, modify, sell, distribute, assign, share, or otherwise transfer the Toast APIs or Documentation to any third party; (v) not be entitled to receive any object or source code associated with the Toast APIs, except as permitted by Toast; (vi) not, under any circumstances, attempt to create or permit others to attempt to create, by reverse-engineering or reverse-assembling, decompiling or otherwise, any part of the Toast APIs ,Toast Proprietary Content or other data or content provided to you by Toast; (vii) not use or access the Toast Services or Toast APIs to build or support, and/or assist a third party in building or supporting, products or services competitive with the Toast Services; (viii) use the Toast APIs or Toast Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with Toast's provision of the Toast APIs or the Toast Services; (ix) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Toast API or Toast Services to or for any third-party or provide the Toast Services or Toast API in any time-sharing arrangement or as a service bureau; (x) conduct any penetration or vulnerability testing on the Toast API, Toast Services or the network on which either is provided; (xi) copy any features, functions, text or graphics of the Toast Services or the Toast API, including without limitation, the structure, sequence or organization of the Toast API, (xii) not submit to the Toast API any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing upon any third-party proprietary rights, invasive of personal privacy or otherwise objectionable, (xii) use the Toast API or any Toast Data to send Unsolicited Commercial Email (“UCE”) or other unsolicited marketing communications to any person, or (xiii) utilize or introduce any viruses, worms, defects, Trojan horses, backdoors, malware, or any items of a destructive nature in connection with the Toast APIs or the Toast Services .
2.5 You will only access the Toast API using interfaces described in the Documentation and approved by Toast. If Toast assigns developer credentials (e.g. client IDs) to you, you must use your assigned credentials when required by the Toast API(s). You will not misrepresent or otherwise mask your identity or the identity of the owner of Your Application when implementing or using the Toast API(s). Toast may, in its sole discretion, set and enforce limits on use of the Toast API(s) (e.g. limiting the number of API requests that you may make, the scope of the APIs or the number of concurrent users accessing the Toast API(s) using Your Application) and these may be communicated to you via the Documentation or other means. You agree not to, and will not attempt to, circumvent such limits. You must obtain Toast’s express written consent in advance if you wish to exceed these limits, and Toast may decline your request or condition Toast’s acceptance on your agreement to additional terms and/or charges for that use. You will preserve all copyright and other proprietary rights notices in the Toast API and Documentation, and all copies made thereof.
3. Compliance with Law
You are fully responsible for complying with all federal, state, local and foreign laws, rules and regulations applicable to You, Your Application and your business, including without limitation, any applicable tax laws and regulations, all Data Privacy and Security Laws (as defined below), the confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandar... (“PCI-DSS”) and the by-laws, operating regulations and/or all other rules, policies and procedures of VISA, MasterCard, Discover and/or other payment card networks as in effect from time to time (collectively “Applicable Law and Rules”), as applicable.
4. Data Privacy and Security
4.1 In certain instances, Personal Information may be Processed (defined below) as part of the use of the Toast API(s). In those instances, this Section 4 shall apply to that Processing. For the purposes of this Agreement, the following definitions shall be applied:
- “Data Privacy and Security Laws” shall mean all federal, state, regional and local laws, regulations and rules imposed by any government, agency or authority in relation to the Processing and security of Personal Information, including but not limited to the European Union’s General Data Protection Regulation and the California Consumer Privacy Act of 2018, each as amended, replaced or superseded from time to time.
- “Personal Information” shall mean any information that relates to an identified or identifiable individual. Depending on the applicable Data Privacy and Security Laws, Personal Information may include, but is not limited to a name, address, contact details, unique identifiers, credit card information, biometric identifiers and information, personal preferences and behaviors, history and profile data, IP addresses and location-based information.
- “Processing” (and “Processed”) means any operation or set of operations performed on Personal Information, including but not limited to collection, access, use, disclosure, storage and deletion.
- "Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Personal Information.
4.2 As part of this Agreement and Your use of the Toast API(s), You shall (a) comply with all applicable Data Privacy and Security Laws and (b) not, by any act or omission, put Toast in violation of any applicable Data Privacy and Security Laws. You will only Process Personal Information utilized as part of the Toast API(s) in accordance with this Agreement and the Permitted API Use.
4.3 You agree to not disclose the Personal Information Processed under this Agreement to any third parties other than as expressly permitted under this Agreement or as part of the Permitted API Use. To the extent any such onward disclosure is permitted, such disclosure shall comply with the applicable Data Privacy and Security Laws and the relationship between You and the third party must be covered by a written agreement that imposes the same obligations on the third party with respect to Processing of Personal Information as those imposed on You under this Agreement.
4.4 Where requested by Toast, You shall provide Toast with reasonable assistance and cooperation in relation to Toast’s compliance with the applicable Data Privacy and Security Laws, including support with individual rights requests or notifications from any governmental, regulatory or law enforcement authority pertaining to Toast or Personal Information Processed as part of using the Toast API(s). In the event You receive any such request or notification, unless otherwise prohibited by law, You shall notify Toast and shall not respond to the party making the request.
4.5 You are fully responsible for implementing and maintaining appropriate technical, organization and administrative security controls and safeguards associated with Your Application and any Personal Information or other data that you Process, through your use of the Toast API(s). In all cases, this obligation shall in no way limit Your obligations regarding any security measures required under the applicable Data Privacy and Security Laws.
4.6 If You (whether directly or through a third party) discover or become aware of a Security Incident, You shall promptly notify Toast and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement. This includes complying with all applicable requirements of the Agreement, as well as cooperation in the investigation of the Security Incident.
4.7 As part of this Agreement, Toast shall, with reasonable notice, have the right to perform an audit of Your (and any third party) facilities, systems and personnel to verify Your compliance with this Section. You will provide full cooperation to Toast and its representatives in connection with any such audit. Toast may perform such audits no more than once in any calendar year unless Toast has a reasonable suspicion of a Security Incident or a breach or potential breach of this Agreement by You, in which event Toast may perform an audit on a more frequent basis.
5. Term and Termination.
This Agreement will commence on the date you click “I Agree” below and will continue in full force and effect for a period of one (1) year and, thereafter, shall automatically renew for successive one (1) year periods (the “Term”), unless either Party provides the other Party with written notice of its election to terminate this Agreement in accordance with the provisions of this Section 3 no later than the thirtieth (30th) day prior to the applicable anniversary date of this Agreement.
You may stop using the Toast API(s) at any time and for any reason, by providing prior written notice to us. We may terminate this Agreement and your access to and use of the Toast API(s) and Documentation at any time, for any reason, in our sole discretion. We may also suspend your access to the Toast API(s) and Documentation, at any time and with or without notice, in the event you are in breach of this Agreement, or any other agreement you have with Toast, or if you have engaged in activity that Toast reasonably determines may be fraudulent, illegal, offensive or inconsistent with Toast’s business interests.
In the event of termination of this Agreement, you must immediately cease your access to and use of the Toast API[s] and Documentation, and comply with your obligation in Section 6 of this Agreement regarding the return or destruction of Confidential Information, including with respect to all Toast Proprietary Content. Sections 2.3, 2.4, 3, 4, 5, 6, 7, 9, 11, 13, 14 and 15 will survive termination of this Agreement.
6. Confidential Information..
6.1 The Parties intend to disclose Confidential Information with each other in the course of performing their respective obligations under this Agreement. The Party disclosing such Confidential Information shall be referred to as the “Disclosing Party,” and the Party receiving Confidential Information shall be referred to as the “Recipient.” “Confidential Information” includes any materials, communications, trade secrets and information that are either marked confidential or that would reasonably be considered confidential or proprietary under the circumstances surrounding disclosure (“Confidential Information”). Confidential Information does not include information that: (i) the Disclosing Party independently developed without reference to or use of Disclosing Party’s Confidential Information as evidenced by Recipient’s written records, (ii) was rightfully received from a third party without obligation of confidentiality, (iii) becomes public through no fault of the Disclosing Party. For the avoidance of doubt, Toast’s Proprietary Content and Toast Data (including any Personal Information) shall form part of Toast’s Confidential Information; provided, that Your Data is your Confidential Information.
6.2 Subject to the preceding paragraph and the next sentence, Recipient will: (i) not use Confidential Information for any purpose other than in relation to the services contemplated hereunder for which it was disclosed to the Recipient, (ii) protect and safeguard the confidentiality of all such Confidential Information with the same degree of care as Recipient would protect its own Confidential information, but in no event less than a reasonable degree of care; (iii) not use the Disclosing Party’s Confidential Information in any manner that is to the competitive disadvantage of, or otherwise adverse or detrimental to Toast, including, without limitation, reverse engineering, disassembling, decompiling or designing any Confidential Information, such as the Toast API(s) or the Toast Service, or (iv) disclose any Confidential Information to any person or entity, other than Recipient’s authorized representatives who have a need to know such information and are subject to confidentiality obligations no less restrictive the terms contained herein, without the other party’s prior written consent. Recipient shall be responsible for all acts or omissions of any such third parties. If Recipient receives a request pursuant to legal process to disclose all or any part of the Confidential Information of the Disclosing Party, the Recipient shall promptly notify the Disclosing Party of the request, to the extent possible and permitted; cooperate with the Disclosing Party, at Disclosing Party’s expense, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed; and furnish only such portion of the Confidential Information as the Recipient is advised by its legal counsel is legally required to be disclosed.
6.3 The Parties acknowledge and agree that the disclosure or use of Confidential Information in violation of the provisions of this Section 6 may cause irreparable injury to the Disclosing Party. In the event of a breach or threatened breach of the provisions of this Section 6, the non-breaching party shall, in addition to any other remedies it may have at law or in equity, be entitled to seek preliminary and permanent injunctive relief.
6.4 Unless specifically provided for elsewhere under this Agreement, within thirty (30) days following the expiration or termination of this Agreement and upon the written request of the Disclosing Party, the Receiving Party will return to the Disclosing Party, all copies of the Disclosing Party’s Confidential Information or delete, erase and destroy all copies of such Disclosing Party’s Confidential Information and will certify the foregoing to the Disclosing Party in writing upon request.
7. Limited Relationship and Non-Solicit
7.1 Independent Contractor. 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. Each Party shall avoid deceptive, misleading, derogatory, or unethical practices detrimental to the other Party or its respective products or services. Neither Party is authorized to make any warranties or representations concerning the other Party’s products or services.
7.2 Restrictive Covenants.
7.2.1 In order to protect Toast’s Confidential Information and goodwill, and to prevent unfair competition and the appropriation of relationships that Toast has developed, during the Term and for a period of six (6) months following the termination or expiration of this Agreement for any reason (the “Non-Solicit Period”), You agree that You will not, directly or indirectly, in any manner, solicit, entice or attempt to persuade any employee of Toast to leave Toast for any reason or otherwise participate in or facilitate the hire, directly or through another entity, of any person who is employed by Toast.
7.2.2 Further, during the Non-Solicit Period, You agree that You will not, directly or indirectly, in any manner, solicit, entice or attempt to persuade any Merchant to alter or terminate its relationship with Toast. You acknowledge and agree that if You violate this Section 7.2.2, the running of the Non-Solicit Period will be extended by the time during which You engage in such violation(s), and Toast may terminate this Agreement upon written notice to You. In the event that You breach the covenant contained in this Section 7.2.2, and a Merchant terminates its relationship with Toast, then You will pay Toast in each such case, as liquidated damages and not as a penalty, an amount equal to two times the amount of the Toast's revenue (as defined by US GAAP) from whatever source applicable to such Merchant during the twelve (12) month period ending on the date such Merchant ceases using the Toast Services. The foregoing payment shall be Toast's sole and exclusive remedy and the Your sole and exclusive liability for such a breach. This provision shall survive termination of the Agreement. For purposes hereof, “Merchant” shall mean an entity or person that has entered into a binding agreement with Toast (or its agents, including any reseller or distributor) to subscribe to, access and use the Toast Services for the benefit of that entity’s or person’s internal business purposes.
8. Branding and Attribution.
8.1 Brand Features; Promotion and Marketing. “Brand Features” are the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each Party. Each party grants to the other party a limited, non-transferable, non-sublicensable, non-exclusive fully paid-up, royalty free, revocable license during the Term to display the other party’s Brand Features for the sole and exclusive purpose of promoting or advertising, in your case, Your Application’s integration with Toast via the Toast API[s] and, in the case of Toast, Your participation as a technology partner of Toast. Except as expressly stated, this Agreement does not grant either Party any right, title, or interest in or to the other party’s Brand Features. All use by you of Toast’s Brand Features, including any goodwill associated therewith, will inure to the benefit of Toast. Toast may produce, display and distribute incidental depictions, including screenshots, video, or other content from your API client, and may use your company or product name in the course of promoting, marketing, or demonstrating the Toast API[s] you are using.
8.2 Attribution. You agree to display any attributions required by Toast as described in the Documentation. You will not make any statement regarding your use of the Toast API[s] which suggests partnership with, sponsorship by, or endorsement by Toast. You may use Toast’s Brand Features subject to the limited license granted above, and must comply with your obligations under this Section. You understand and agree that Toast has the sole discretion to determine whether your attribution(s) and use of Toast’s Brand Features are in accordance with the above requirements and any messaging guidelines that may provided by Toast from time to time.
8.3 Toast DMCA Policy. Toast responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act (DMCA). If you think somebody is violating your copyrights and want to notify us, please submit the notice required by the DMCA to [email protected]
9. Disclaimer of Warranty, Limitation of Liability and Indemnity.
9.1 NO WARRANTY. THE TOAST API[S] AND DOCUMENTATION ARE PROVIDED TO YOU ON AN "AS IS," “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, AND YOU ASSUME ALL OF THE RISK AND LIABILITY ASSOCIATED WITH YOUR USE OF THE TOAST APIS AND DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOAST EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
9.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL TOAST (AND ITS LICENSORS OR AGENTS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS, OR DATA LOSS, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY ARISING AS A RESULT OF YOUR USE OF, OR UNAVAILABILITY OF THE TOAST API OR DOCUMENTATION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF TOAST (AND ITS LICENORS AND AGENTS) FOR ITS BREACH OF, OR CLAIMS ARISING UNDER OR RELATED TO, THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO FIVE HUNDRED DOLLARS ($500).
9.3 INDEMNITY. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS TOAST AND ITS AFFILIATES AND SUBSIDIARIES (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS SUITS, JUDGMENTS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) BROUGHT BY ANY THIRD PARTY, AND ARISING OUT OF OR IN ANY WAY RELATED TO (I) YOUR USE OF THE TOAST API[S] OR DOCUMENTATION, (II) YOUR ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT, (III) YOUR VIOLATION OF ANY COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS, AND (IV) YOUR VIOLATION OF ANY APPLICABLE LAW AND RULES.
10. 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. We will post the updated version of this Agreement on our website. Your continued use of the Toast API[s] and 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. If you do not agree to the change in terms, you must immediately cease using the Toast API[s] and Documentation.
11. Ownership of Data and Feedback.
11.1 Toast Data. For the purposes of this Agreement, as between Toast and You, Toast owns all rights, title, interest and all worldwide Intellectual Property Rights, in and to all Toast Data. “Toast Data” means all data and information (including Personal Information) collected by Toast as part of the use of the Toast API(s) and the Toast Services (whether accessed or used by You, our merchant customers or diners/consumers) under this Agreement. During the Term, Toast grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Toast Data solely and exclusively in as necessary for You to use the Toast API for the Permitted API Use. You agree not use any Toast Data (i) other than as necessary in connection with the Permitted API Use or (ii) in any manner for the benefit of any competitor of Toast, or that is to the competitive disadvantage of, or otherwise adverse or detrimental to, Toast. Upon termination of this Agreement all Toast Data shall either be returned to Toast or destroyed (in which case, you shall provide a certificate verifying the destruction of all Toast Data).
11.2 Your Data. During the Term, the Toast API(s) may permit you to submit to Toast certain data and information such as your business name, address, email, logo, trademarks, domain name(s),promotional information, profile and user information or other information or content (including Personal Information) that You have collected outside of the Toast API(s) or Toast Services (together “Your Data”). As between You and Toast, You retain all right, title and interest in and to Your Data and, except as otherwise expressly stated under the Agreement, Toast does not acquire any ownership of, or Intellectual Property Rights to, Your Data. You grant Toast a royalty-free, fully paid-up, worldwide, non-exclusive, non-transferable (except as otherwise provided herein), non-sublicensable right and license to access and use Your Data for the purposes of providing you with access to, and use of, the Toast API as described under this Agreement. You represent and warrant to Toast that, before submitting Your Data to Toast through the Toast API(s), you have obtained the necessary rights and/or licenses to both submit Your Data and grant us the foregoing license.
11.3 Anonymized Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Toast may create anonymized or aggregated data from Your Data, Personal Information or Toast Data that does not identify you, any of your users or employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across Toast, our merchant customers and partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Toast API or Toast Services, the development of new Toast Services or otherwise. Upon creation, as between you and Toast, Toast shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to You or restriction of any kind.
11.4 Feedback. You may voluntarily submit to Toast any suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Toast Services, Toast API[s] or Documentation (“Feedback”). You hereby irrevocably assign all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to Toast, and acknowledge that Toast is free to use, disclose, reproduce and otherwise exploit any and all Feedback in Toast’s sole discretion, and entirely without obligation or restriction of any kind.
12. Toast API Support and Updates.
12.1 We may extend, enhance, or otherwise modify (each an “Update”) the Toast API[s] at any time with or without notice. If Updates are made available by us, the terms of this Agreement will govern such Updates, unless the Update is accompanied by a separate license, in which case the terms of that license will govern use of the applicable Update. We are not obligated to provide any Updates, maintenance, technical or other support for the Toast API[s]. Should an Update be made available, it may have APIs, features, services or functionality that are different from, or not compatible with, the version of the Toast API licensed hereunder.
12.2 Questions about the development of your API clients and the Toast API may be submitted by e-mail to [email protected]. Toast will use reasonable efforts to respond to your questions, but Toast does not guarantee that it will respond within a specific timeframe, or that its answers will be accurate or complete.
This Agreement is governed by the laws of the Commonwealth of Massachusetts, without giving effect to its choice of law principles. 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 subject matter herein, and supersedes any prior or contemporaneous communications of any kind between you and Toast, whether written or oral. This Agreement may only be modified by us in accordance with Section 10 above. If any provision of this Agreement is found 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.
14.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between You and Toast, whether arising out of or relating to this Agreement or in connection with Your use of the Toast API(s) shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that You may assert individual claims in small claims court, if Your claims qualify. You agree that, by agreeing to this Agreement, You and Toast are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. You and Toast agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both You and Toast agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
14.3. Pre-Arbitration Dispute Resolution. Toast is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by emailing Toast’s integration support team at [email protected] If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to Toast should be sent to Toast at 401 Park Drive, Suite 801, Boston, MA 02215, Attn: General Counsel. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Toast and You do not resolve the claim within sixty (60) calendar days after the Notice is received, You or Toast may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Toast or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or Toast is entitled.
14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Toast and You agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Your claim is for $10,000 or less, Toast agrees that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
14.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
14.6. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
14.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 14.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 14.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
Except as provided in the Arbitration Agreement, Toast may give notice applicable to Toast's general customer base by means of a general notice on its website or portal, and notices specific to You by e-mail to the email address on record. Notices to Toast must be sent via registered mail, postage prepaid, return receipt requested, to Toast, Inc., 401 Park Drive, Suite 801, Boston, MA 02215, Attn: General Counsel.
BY CLICKING “I AGREE” BELOW YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE RECEIVED, READ AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (B) IF ACTING ON BEHALF OF A LEGAL ENTITY, THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY. IF YOU DO NOT AGREE TO THESE TERMS OR YOU DON’T HAVE SUCH AUTHORITY CLICK “CANCEL” BELOW AND DO NOT DOWNLOAD, ACCESS OR USE THE TOAST API OR DOCUMENTATION.