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Merchant Agreement

This agreement is only applicable for contracts executed on or before June 22, 2015. Click here to view the terms for contracts executed after June 22, 2015.

 

This Merchant Agreement ("Agreement") is a legal agreement between you ("you," "your") and Toast, Inc. ("Toast," "we," "our" or "us") governing your use of Toast's point of sale and payment processing services (together, the "Services") to engage your customers ("Customers"). Please read this Agreement carefully. To use the Services, you must accept all of the terms of this Agreement.

This Agreement is divided into several sections for convenience. The following links will take you to the relevant section:

Our Role

We at Toast want to help you continue to make your business successful, and we think Toast can help you do that.  On our side of this arrangement, to the best of our abilities, we will:

1. provide stable and responsive mobile and web applications allowing Customers and your employees ("Employees") to place orders and process payments ("Payments")

2. make timely payment to you of the sum total of all monies from Customer Payments ("Net Sales 3. Proceeds"), in accordance with the terms set forth in this Agreement

3. provide you with reporting on your sales and activities

4. work with you to resolve any Customer or Employee complaints related to Payments or placing orders

Your Account

5. Privacy

We value the privacy of our users, and have designed our Privacy Policy to specify how customers and you can use Toast and how we collect, store and use your content and information. We encourage you to read our Privacy Policy and understand how it impacts your use of our Services.

6. Account Registration

You must open an account with Toast (a "Toast Account") in order to use the Services. Our registration process will ask you for information including your name and other personal information. You must provide accurate and complete information in response to our questions. You must also keep the information that you provide up-to-date.

7. Verification and Inspection

If your request to open a Toast Account is approved, Toast may request additional information from you at any time. Toast may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver's license, or a business license. Toast may also ask for permission to inspect your business location. If you refuse any of these requests, your Toast Account may be terminated. We reserve the right to suspend or terminate the Toast Account of any user who provides inaccurate, untrue, or incomplete information, or fails to comply with the account registration requirements.

8. Your Toast Account

By creating a Toast Account, you confirm that you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state in which it operates. The Services and your Toast Account may only be used in the fifty states of the United States of America and the District of Columbia. You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).

By accepting this Agreement you confirm that you will satisfy these requirements.

9. Security

We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

10. Termination

If your Toast 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 Services, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information  and account data stored on our servers, and (e) that Toast shall not be liable to you or any third party for termination of access to the Services or for deletion of your information or account data.

11. Your Right to Terminate

You may terminate this Agreement and other Toast agreements by closing your Toast Account at any time. Upon closure of a Toast Account, any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Toast Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Toast Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.

12. Suspension or Termination by Us

We may terminate this Agreement and close your Toast Account for any reason or no reason at any time upon notice to you. We may also suspend the Services and access to your Toast Account (including the funds in your Toast Account) if you (a) have violated the terms of this Agreement, any other agreement you have with Toast, or Toast's policies, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.

13. Effect of Termination

We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.

14. Mobile Devices

Your Toast Account permits you to process payments on a compatible mobile device. Toast does not warrant that the Services will be compatible with your mobile device or third party carrier.

Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer and your carrier. Please be aware that your carrier's normal rates and fees, such as data transfer fees, will still apply.

Payment Processing

15. Your Authorization

By accepting the terms of this Agreement, you authorize us to hold, receive, and disburse funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorizations will remain in full force and effect until your Toast Account is closed or terminated.

16. Restricted Use

You may use the Services only to the extent that you obey all laws, rules, and regulations applicable to your use of the Services. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell our services on behalf of any third party. This means that you may not use the Services to handle, process or transmit funds for any third party. You also may not use the Services to process cash advances.

17. Unauthorized or Illegal Use

We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of any Toast agreement, or exposes you, other Toast users, our processors or Toast to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Toast Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Toast Account, and any of your transactions with law enforcement.

18. Accepted Cards

Toast works with any US-issued and most non-US issued credit and debit cards with a Visa, MasterCard, Discover or American Express logo. We may remove or add Cards that we accept at anytime without prior notice. We will only process Cards that receive an authorization from the applicable Network or card issuer. The person who presents the card to you ("the Payer"), may not be authorized to use the card or otherwise contest the transaction through the Chargeback process (described below).

19. Applicable Network Rules

The Networks require that you and Toast comply with all applicable bylaws, rules, and regulations ("Network Rules"). The Networks have historically reserved the right to amend their rules and regulations. Toast may be required to change this agreement in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at usa.visa.com and www.mastercard.com.

Network Rules currently prohibit you from (a) assessing a surcharge for the use of a Card in connection with any transaction, or (b) dispensing cash on any Card transaction. The Rules also restrict your use of Network logos to indicating your acceptance of the Network cards and to other uses expressly authorized by the Networks.

20. Underwriting

Toast will review some or all of the information that you submit in connection with your request to sign up for the Services. Toast may forward such information on to its processor. In order to be eligible to use the Services, you must agree that Toast may share information about you and your Toast Account to its processor. After you submit your application, Toast or its processor may conclude that you will not be permitted to use the Services.

By accepting the terms of this Agreement, you specifically authorize Toast to request identity verifying information about you, including a consumer report that contains your name and address. Toast may periodically obtain additional reports to determine whether you continue to meet the requirements for a Toast Account.

You agree that Toast is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Toast Account with your bank or other financial institution. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct Toast's risk management process.

21. Toast Processing Errors

We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, Toast will credit your Toast Account for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, Toast will debit the extra funds from your Toast Account. Toast will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.

Financial

22. Our Fees

You agree to pay the applicable fees listed on our Fee Schedule ("Fees") whenever you use the Services. Subject to the terms of this Agreement, we reserve the right to change our Fees. If we change our Fees, we will give you thirty (30) days notice of any change. You will not be permitted to continue to use the Services unless you consent to the change in Fees. To withdraw your consent, you will need to close your Toast Account. All Balances and all Fees, charges, and payments collected or paid through the Services are denominated in US dollars.

23. Payments

Once your bank account information is verified, Toast will automatically deposit the Net Sales Proceeds collected (less any applicable fees) to your account via direct deposit.  This deposit will normally register within 1-2 business days after payment settlement is initiated. It is your responsibility to initiate settlement of your payments in a timely manner through the Toast POS application. Optionally, you may request that Toast automatically initiate settlement of your payments at 4:30 AM ET for the previous day's activity.  If you choose to utilize this optional service, Toast is not responsible for any loss in gratuities caused by settlement before the gratuity adjustment was made. Not settling your payments in a timely manner can result in higher processing rates charged by the card processing networks.  Toast reserves the right to reclaim these fees from you.

If, in our determination, you have not provided goods or services consistent with this Agreement, we will have the right to not pay any Net Sales Proceeds , and/or to pay a refund to any Customer. We reserve the right to adjust the Net Sales Proceeds due for any period to compensate us for any chargebacks, calculation errors, Merchant employee fraudulent use, and any refunds paid to Customers whether or not related to the period on which such adjustment is made, or to offset against such Net Sales Proceeds any other claim we may have arising hereunder. You will be solely responsible for payment of, and you agree to pay, all sales taxes, use taxes or other taxes relating to your provision of goods and/or services to Customers, and any taxes applicable to this Agreement (other than taxes, if any, on our income).

24. Availability of Funds

Should Toast need to conduct an investigation or resolve any pending dispute related to your Toast Account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.

25. Toast Account History

When a payment is made to your Toast Account, we will update your Toast Account reporting on the website. Reporting of your Toast Account activity is available on our website for up to one year of account activity. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Toast Account and your use of the Services, and (b) reconciling all transactional information that is associated with your Toast Account. If you believe that there is an error or unauthorized transaction activity is associated with your Toast Account, you agree to contact us immediately.

26. Taxes

You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection your use of our software and services ("Taxes"). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.

If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Toast will report annually to the Internal Revenue Service ("IRS"), as required by law, your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.

27. Your Liability for Chargebacks

The amount of a transaction may be reversed or charged back to your Toast Account (a "Chargeback") if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor, or a Payer's or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.

28. Reserve

At any time and from time to time, we may temporarily suspend or delay payments to you and/or designate an amount of funds that  we must maintain in your Toast Account or in a separate reserve account (a "Reserve") to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks, refunds, or other indications of performance problems related to your use of the Services. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, unfulfilled products or services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by Toast, in its sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in Toast's favor, or otherwise as Toast or its processor may determine or require.

29. Our Collection Rights for Chargebacks

For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may deduct the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by the Association or our processor from your Toast Account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your Toast Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer's complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Toast Account deficit balances unpaid by you.

30. Excessive Chargebacks

If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Toast Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Services.

31. Contesting Chargebacks

You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Services. To that end, you permit us to share information about a Chargeback with the payer, the payer's financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Toast Account. If a Chargeback dispute is not resolved in your favor by the Association or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

Legal Terms

32. Your License

Toast grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services solely to accept and receive payments and to manage applicable Toast services, in accordance with this Agreement. The Services include our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by Toast. You will be entitled to download updates to the Services, subject to any additional terms made known to you at that time, when Toast makes these updates available.

While we want you to enjoy the Services, you may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Toast system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with Toast referencing this Section 44(i) that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Toast; (iii) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Services or any Toast service or product, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Services except as expressly allowed under this section.

33. Ownership

The Services are licensed and not sold. Toast reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property laws. Toast owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. This Agreement does not grant you any rights to Toast's trademarks or service marks.

For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our other products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Toast under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Toast does not waive any rights to use similar or related ideas previously known to Toast, or developed by its employees, or obtained from sources other than you.

34. Indemnity

You will indemnify, defend, and hold us and our processors harmless (and our respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our Policies or the Networks' rules; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including without limitation the accuracy of any Product Information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any  law, rule or regulation of the United States or any other country; (f) any other party's access and/or use of the Services with your unique username, password or other appropriate security code.

35. Representation and Warranties

You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and  use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) your use of the Services will be in compliance with this Agreement.

36. No Warranties

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOAST OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, TOAST, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

TOAST DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TOAST WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

37. Limitation of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TOAST, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL Toast BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM  HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR Toast ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOAST, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL TOAST, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Toast HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Services are controlled and operated from facilities in the United States. Toast makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.

38. Disputes

If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Toast with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration. "Disputes" between you and Toast ("Toast" includes its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees)) are defined for the purposes of this Agreement to include any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and Toast including but not limited to any claims relating in any way to this Agreement (including its breach, termination, or interpretation), any other aspect of our relationship, Toast advertising, and any use of Toast software or services. "Disputes" also include any claims that arose before this Agreement and that may arise after termination of this Agreement.

39. Binding Individual Arbitration

You and Toast agree to arbitrate all Disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST Toast. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where you reside. Otherwise, any arbitration hearing will occur in Cambridge, Massachusetts, or another mutually agreeable location, or a location ordered by the arbitrator. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any Dispute, Toast will pay all the arbitration fees. If you prevail on any claim for which you are legally entitled to attorney's fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, Toast will not seek to have you pay its attorney's fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Toast also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of Toast services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in a state or federal court located in Middlesex County, Massachusetts.

40. Governing Law

This Agreement and any Dispute will be governed by Massachusetts law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Massachusetts, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.

41. Limitation on Time to Initiate a Dispute

Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.

42. Right to Amend

We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at Toastup.com or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement (including the binding individual arbitration clause) that was in place when the Dispute arose.

43. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Toast without restriction.

44. Third Party Services and Links to Other Web Sites

You may be offered services, products and promotions provided by third parties and not by Toast ("Third Party Services"). If you decide to use these Third Party Services you will be responsible for reviewing and understanding the terms and conditions associated with these services. You agree that Toast is not responsible for the performance of these services. The Toast website may contain links to third party websites as a convenience to you. The inclusion of any website link does imply an approval, endorsement, or recommendation by Toast. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement. Toast expressly disclaims any liability for these websites. Please remember that when you use a link to go from our website to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our website, is subject to that website's own rules and policies.

45. Other Provisions

Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and Toast, and they describe the entire liability of Toast and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Services. In the event of a conflict between this Agreement and any other Toast agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Toast may have under trade secret, copyright, patent, or other laws. Toast's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.


Effective Date of these Terms of Service: January 2, 2014