We provide services that allow Merchants to send short message service (“SMS”) messages (“Messages”) to your guests (the “Merchant-Initiated SMS Services”). You and your Employees (as such term is defined in the Toast Merchant Agreement) will only use the Merchant-Initiated SMS Services in compliance with these SMS Marketing Special Terms (the “SMS Marketing Terms”), the Toast Merchant Agreement, the End User License Agreement (the “EULA”), and all other applicable laws and regulations of the jurisdiction from which you send Messages and in which your Messages are received. The Merchant-Initiated SMS Services shall be deemed “Services” under the EULA and the Toast Merchant Agreement.
Certain types of businesses may not be permitted to utilize the Merchant-Initiated SMS Services due to restrictions set by third parties and/or applicable laws, rules or regulations, or other limitations. Toast reserves the right to decline to offer the Merchant-Initiated SMS Services to any business that is subject to any such restrictions, or in the event that Toast believes, within its discretion, that providing the Merchant-Initiated SMS Services will violate any terms that it has with any third parties, any applicable laws, rules, or regulations, or may cause harm to Toast or damage its reputation.
Toast may, at any time and without prior notice, either directly or through a third party of its choosing, screen, remove, edit, or block any User Content for any reason, including any User Content that in our sole judgment, or the judgment of carriers, Toast’s vendors, or other relevant third party parties as determined by Toast (each a “Relevant Third Party” and collectively the “Relevant Third Parties), violates these SMS-Marketing Terms or is otherwise objectionable. You agree to use the Merchant-initiated SMS Services in accordance with these SMS-Marketing Terms and the acceptable use or similar policies of any Relevant Third Party (collectively the “Acceptable Use Terms”), which terms and policies may change from time-to-time. You also agree not to use the Merchant-initiated SMS Services in any manner that is or could be interpreted to be infringing, defamatory or otherwise unlawful, deceptive or intends to deceive, invades privacy, causes concern for safety, harmful, threatening, abusive, malicious, misleading, harassing, violent or incites violence, intended to intimidate, vulgar, offensive, does not meet applicable age-gating requirements, obscene / illicit, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”). Without limiting the foregoing, you agree not to:
- Use the Merchant-initiated SMS Services to send SMS messages to anyone you do not have the required consent to contact;
- Use the Merchant-initiated SMS Services to send SMS messages to any individual or phone number residing in or originating outside of the United States (including its territories);
- Use the Merchant-initiated SMS Services to send any content that is unlawful, harmful, threatening, abusive, vulgar, obscene, pornographic, invasive of another’s privacy or is otherwise objectionable;
- Use the Merchant-initiated SMS Services to send any messages related to sex (adult content), hate, alcohol, firearms, or tobacco (“SHAFT”);
- Use the Merchant-initiated SMS Services to send any messages related to marijuana, CBD and cannabis (or other federally illegal substances like vaping or prescription medication), debt collection, high risk loans, or gambling;
- Use the Merchant-initiated SMS Services to transmit any content that you do not have a right to make available;
- Take any action that imposes an unreasonable or disproportionately large load on Toast or Relevant Third Parties’ infrastructure;
- Impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity;
- Use or attempt to use the Merchant-Initiated SMS Services for any purpose that is in violation of any applicable law or is otherwise infringes the rights of any person or entity;
- Modify, decompile, reverse engineer, disassemble or reproduce any of the Toast licensed or owned software, systems, applications or components used; or
- Use deceptive, misleading or unethical practices that are or might be detrimental to Toast or the general public (including but not limited to phishing, fraud or scams, deceptive marketing or sending any unlawful or illicit content).
Toast reserves the right to terminate or suspend your account or your access to the Merchant-Initiated SMS Services if you violate these SMS-Marketing Terms and/or applicable Acceptable Use Terms.
By using User Content within the Merchant-Initiated SMS Services, you represent, warrant, and covenant that: (i) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use, and to authorize Toast to use, your User Content as necessary to provide the Merchant-Initiated SMS Services; and (ii) your User Content, and the use of your User Content as contemplated by these SMS-Marketing Terms, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (C) cause Toast to violate any law or regulation; or (D) contain Objectionable Content.
You further represent, warrant, and covenant that when using the Merchant-Initiated SMS Services, you will (i) comply with all applicable laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, and the CAN-SPAM Act of 2013; (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom you have obtained the legally required consent to do so (“Subscribers”); (iv) promptly provide Subscribers who request to stop receiving Messages from Toast or Merchant with clear, accurate opt-out instructions; and (vi) comply with the messaging principles and best practices as promulgated by the Cellular Telecommunications Industry Association (CTIA) from time to time and any messaging principles and/or acceptable use policies of any applicable upstream vendor or provider of such services.
In addition to the indemnities set forth in the EULA and the Toast Merchant Agreement, you further agree to defend, indemnify and hold harmless Toast and its directors, officers, employees, affiliates and agents from and against any claims, liability, damages, expenses and costs, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach or alleged breach of these SMS Marketing Terms and/or any Acceptable Use Terms.
Toast may, in its discretion, direct Subscribers to contact the Merchant in the event they have any questions or concerns about the content of the SMS Messages, and Merchant shall use commercially reasonable efforts to timely address any such concerns . The Merchant-Initiated SMS Services are subject to change or termination at any time, without notice, although Toast will endeavor to provide notice if the Merchant-Initiated SMS Services is terminated in its entirety, either through an in-product notice or by other contact method.
Toast and Relevant Third Parties may investigate incidents that are, in Toast and/or a Relevant Third Party's sole discretion, contrary to the SMS Marketing Terms or the Acceptable Use Terms and provide requested information to third parties (including but not limited to Relevant Third Parties) who have provided notice to Toast, stating that they have been harmed by your failure to abide by applicable law, any of the SMS Marketing Terms, the Acceptable Use Terms or the policies of any Relevant Third Parties. Toast may bring legal action to enjoin violations and/or collect damages caused by your violation of any part of the SMS Marketing Terms, the Acceptable Use Terms, or the policies of any Relevant Third Party. Your violation of the SMS Marketing Terms, the Acceptable Use Terms, or the policies of any Relevant Third Party will constitute a material breach for purposes of the Toast Merchant Agreement.