Congratulations on being selected to participate in Toast, Inc.’s Beta Testing Program. This Beta Participation Agreement (“Beta Agreement”) sets forth the terms and conditions governing Merchant’s use of the Toast Beta Product(s) and any related materials set forth in Section 8 below (“Beta Products”). You also agree to comply with all the terms of the Toast Merchant Agreement, Privacy Statement, and any other agreements applicable to your relationship with Toast, Inc.
Merchant understands and acknowledges the following:
- Definitions. “Beta Products” means the Toast software, hardware, website, application, support, or other features provided to you as a Beta Testing Program participant, which are not yet available to the public or to other Toast Merchants in the normal course of business. All other capitalized terms shall have the meaning set forth in the Toast Merchant Agreement.
- License. Toast grants to Merchant a limited, non-exclusive, non-transferable, royalty-free, revocable license to access and use the Beta Products, solely for the purpose of participation in the Beta Testing Program. Merchant shall not use the Beta Products for any purpose beyond the scope of the Beta Testing Program, nor shall Merchant directly or indirectly allow access to and/or use of the Beta Product(s) by any third party.
- Restrictions on Use. Except as expressly permitted in this Beta Participation Agreement, Merchant shall not, and shall not permit others to engage in any activity prohibited under Section 4.1 of the Toast Merchant Agreement. The Beta Product(s) may be evaluated solely at the approved location (“Location”), and may be used only by Merchant and its employees. Merchant shall not remove the Beta Product(s) from the Location.
- Data. As between the parties, Toast (and/or its licensors) owns or has license to all rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Beta Products provided under the Agreement, all of which shall and is expressly intended to remain vested in Toast. Section 5 of the Toast Merchant Agreement shall govern the provision, ownership, and use of data associated with Merchant’s use of the Beta Product(s), including but not limited to any Feedback submitted by Merchant to Toast in the course of participation in the Beta Testing Program. Any rights not expressly granted herein are reserved by Toast.
- Confidential Information. Confidential information shall be governed pursuant to the Toast Merchant Agreement, except as expressly stated in this Beta Agreement. Without limitation, Toast’s Confidential Information includes the Beta Products. The receiving party acknowledges and agrees there may be no adequate remedy at law for breach of this section and that such breach may cause irreparable harm to the disclosing party; therefore, in the event of a breach or threatened breach of this section by the receiving party, the disclosing party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Beta Agreement.
- Disclaimer of Warranties.You acknowledge and agree that by their nature, Beta Products are still under development when made available to you, and have not been commercially released for sale or subscription by Toast. Beta Products may not be fully functional, and may include design flaws, errors, bugs, or other problems, including problems that may impact the operation of your existing Services. You acknowledge and agree that Beta Product may contain fewer features or different commercial terms than subsequent, generally available versions. Toast retains the right to alter, modify, suspend or cancel the Beta Products, the Beta Testing Program, and/or your participation in it at any time, in its sole discretion.
THE TOAST BETA PRODUCTS ARE PROVIDED “AS IS” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USE OR TRADE. TOAST SHALL HAVE NO LIABILITY TO MERCHANT (OR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, OR PARTNERS) OR ANY THIRD PARTY RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. IN NO EVENT WILL TOAST BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, INCIDENTAL, EXEMPLARY, COVER OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR REVENUE, LOST BUSINESS OPPORTUNITIES, LOST SAVINGS, LOST DATA, OR COMPUTER FAILURE, EVEN IF TOAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANOTHER LIMITED REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE.
- Term and Termination. This Beta Agreement shall commence on the date that Merchant demonstrates consent to these terms, and shall expire at the end of your participation in the Beta Testing Program. This Beta Agreement will automatically terminate upon any material breach by you of any of your obligations under the Agreement. If you breach this Agreement, Toast may immediately remove you from the Beta Testing Program and revoke your access to any Beta Product(s). If Toast determines that a Beta Product you are testing will be released as a generally available part of the Toast Services, your participation in the Beta Testing Program as to that Product shall expire as of the date that Product becomes generally available.
- Special Terms. This Beta Agreement shall be applicable to any and all Beta Products so identified and made available to you within your Toast interface, in the form of products, features, or services that you may turn on at your election. By enabling any such Beta Products, you agree and acknowledge that this Agreement is applicable to your use of them until and unless they become generally available.