Toast TakeOut Terms
Effective: July 17, 2019
By accepting these Merchant TakeOut Terms of Service (“TakeOut Terms”), Merchant acknowledges and agrees that these TakeOut Terms supplement and, in the event of a conflict, supersede and amend the terms of, the Merchant Agreement between Merchant and Toast, Inc. ("Toast," "we," “us” or “our”), located at https://pos.toasttab.com/toast/merchant-agreement.
The TakeOut Terms govern the mobile application and associated website, software, and other products and services provided by Toast to enable Diners to make Purchases from Merchant (collectively, “Toast TakeOut”). Merchant agrees to be bound by, and to take all necessary measures to ensure its Employees have read, understand, and are bound by, these TakeOut Terms when Merchant uses its Toast Account to access the Toast TakeOut mobile application or any associated website (which hereby is added to the definition of “Toast App” as provided in the Merchant Agreement).
These TakeOut Terms apply to Merchant’s participation in Toast TakeOut in addition to the terms and conditions specified in the Merchant Agreement. In the event of a conflict between these Takeout Terms and the Merchant Agreement, these TakeOut Terms will govern. Capitalized terms not defined in these TakeOut Terms shall have the meanings set forth in the Merchant Agreement.
1. Toast TakeOut Service
1.1. Toast TakeOut provides technology services to Merchant to enable dining customers (each, a “Diner”) to place orders for food, beverages and related products and services provided by Merchant (each, a “Purchase”) and facilitates payment to Merchant by the Diner for those Purchases with a permitted payment method (“Payment Method”) through Toast TakeOut (each, a “Payment Transaction”). Toast facilitates the Purchase process with Merchant and processes Diners’ payments to Merchant, on behalf of and as agent for Merchant.
1.2. Purchases and Payment Transactions that a Diner submits through Toast TakeOut are transactions between Diner and Merchant, and not with Toast or any of our affiliates. Toast is not the seller of any product or service offered by Merchant and is not a party to any Payment Transaction facilitated through Toast TakeOut. Toast is a third-party service provider facilitating Payment Transactions for Merchant, and is not acting for or on behalf of a Diner in a Payment Transaction.
2. Merchant’s Responsibilities
2.1. Merchant is solely responsible and liable for marketing, selling, pricing, packaging and provision of any products or services offered to Diners through Toast TakeOut, all in compliance with Applicable Law and Rules. Merchant acknowledges and agrees that Toast is not in any way responsible for, and makes no representation or warranty regarding, whether Merchant holds any required or applicable permit, license, registration or other credential for its business, whether representations by Merchant to a Diner or any third party are true or accurate, or whether Merchant complies with Applicable Law and Rules, and Toast is not responsible for any of the foregoing or the quality of the products or services provided by Merchant to a Diner or any other third party.
2.2. Alcoholic Beverage Product Purchases. If Merchant holds an alcoholic beverage license and sells alcoholic beverage products, the Merchant must approve each Purchase before the Purchase will be finalized, and only upon acceptance of the Purchase by the Licensee will a Diner’s Payment Method be charged. The portion of the funds charged to a Diner’s Payment Method which pertains to Diner’s alcoholic beverage product purchase will be held in an account for the benefit of the alcoholic beverage supplier in compliance with Applicable Laws. Toast acts as a third-party technology provider to and facilitates payment processing on behalf of the Merchant, and has no responsibility or liability to a Diner or any other person for any alcoholic beverage products a Diner may purchase from a Merchant or for any Merchant’s compliance with Applicable Laws and Rules, including without limitation, local regulations regarding the sale of alcohol. Merchant is responsible for (i) not enabling procurement of alcoholic beverage products by or for persons under twenty-one (21) years of age; (ii) ensuring the Diner provides bona fide government issued photo identification evidencing he/she is twenty-one (21) years of age or older to the Diner as a prerequisite to receiving the Purchase; and (iii) ensuring that the Diner is purchasing alcoholic beverage products for his/her personal consumption and not for any commercial purpose or resale or for any person under twenty-one (21) years of age.
3. Implementation of the Toast TakeOut App
Merchant must have a Toast Account to use Toast TakeOut. Only Toast may add Toast TakeOut to a Merchant’s Toast Account and cause Merchant’s business to appear on Toast TakeOut. To be listed on Toast TakeOut, Merchant must provide Toast with certain minimum required information via the Toast web interface, including without limitation its hours of operation and menu items and pricing. Merchant must provide accurate and complete information in response to any questions on the Toast web interface and keep such information current at all times, and Toast disclaims any liability or responsibility in connection with any information provided by Merchant that is inaccurate, incomplete, or outdated. Toast reserves the right to suspend or terminate the Toast TakeOut access of any Merchant who provides inaccurate, untrue, or incomplete information. While Merchant may change most of the information Merchant provides, Toast maintains control over certain standard labeling and design elements of the Toast TakeOut user interface for all listings on Toast TakeOut, which can only be changed or modified by Toast at the request of Merchant.
4. Payment Processing
4.1. Toast makes available the Toast App and website enabling Toast TakeOut, and processes Payment Transactions for Purchases on behalf of Merchant as the agent of the Merchant through the payment networks.
4.2. When a Diner pays for a Purchase placed through Toast TakeOut, Toast will submit the charge to the Diner’s Payment Method, as the agent of Merchant, in the amount of the Purchase (including any gratuities, fees and taxes) as well as any credits in connection with Chargebacks, refunds or adjustments. Toast, as the agent of Merchant, will assist Merchant in submitting the Payment Transaction to the payment network and processing the Payment Transaction. Upon Toast receiving the proceeds of the Payment Transaction, Merchant agrees that the Diner’s payment obligation to Merchant will be deemed completed (except in the case of a later Chargeback).
4.3. Merchant acknowledges and agrees that Toast may, in its sole discretion, establish limitations concerning use of Toast TakeOut by Merchant or a Diner, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions a Diner may make or Merchant may receive within certain time periods. We may decline to process any Payment Transaction without any notice to Merchant or Diner. We may delay processing of or hold or cancel processing of any Payment Transaction upon Merchant’s direction or if we believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates Applicable Law and Rules, these TakeOut Terms or any applicable Toast policies.
5. Payment Processing
By participating in Toast TakeOut, Merchant agrees that:
- Toast is not responsible for and does not control any aspect of the products or services sold by Merchant or the description of the products or services offered through Toast TakeOut.
- Toast will not be responsible for and does not control if a Diner will complete a purchase or payment for products or services to Merchant through Toast TakeOut. When a Diner seeks to make a purchase with a Payment Method through Toast TakeOut, Toast will receive and process the Payment Transaction as the agent of the Merchant through the appropriate payment network, including the credit card or debit card networks.
- Merchant designates Toast as its agent for the sole and limited purpose of receiving and processing Purchases and Payment Transactions made by Diners for products and services provided by Merchant through Toast TakeOut.
- Receipt of payment by Toast (including authorization of the Payment Transaction) from the issuer of the Diner’s Payment Method shall constitute payment to Merchant for the Purchase, and the Diner’s payment obligation to Merchant shall be deemed completed at that time and Merchant shall have no further claims against the Diner with respect to such payment (except in the case of a later Chargeback).
- Merchant will only use Toast TakeOut for its own business purposes and not for personal purposes or the purposes of any other user or merchant.
- Merchant will not use Toast TakeOut in any way that violates Applicable Law or Rules, these TakeOut Terms, the Merchant Agreement of which these TakeOut Terms are expressly incorporated and made a part, or other agreements, policies or rules that are applicable to Merchant or Toast TakeOut.
- Merchant may only use Toast TakeOut to receive Purchases for and payments for a legitimate, bona fide product or service that is purchased from Merchant. Toast TakeOut may not be used to transfer money or process a Payment Transaction that is unrelated to a purchase of a product or service from Merchant.
6. Payment Processing
7. Purchase Changes, Cancellations, Refunds and Customer Service
7.1. Merchant is responsible for setting its own cancellation and refund policies for products and services sold through Toast TakeOut. Once a Purchase has been submitted through Toast TakeOut, Merchant acknowledges and agrees that a Diner must contact Merchant directly to inquire if Diner can make a change to or cancel a Purchase placed through Toast TakeOut or whether Diner may receive a refund for a Purchase.
7.2. Diners will be directed to contact Merchant with questions or for customer service regarding a Purchase or the product or service provided by Merchant.
8. Electronic Communications
8.1. We may be required to provide Merchant with certain disclosures, notices and communications (collectively, “Communications”) in written form. Merchant agrees to receive all Communications regarding its use of any of the Services, including without limitation through Toast TakeOut, electronically instead of in paper form, including by sending electronic mail to the e-mail address Merchant registered with Toast, or by posting a notice or communicating with Merchant through the Toast App. Communications include these TakeOut Terms or other agreements or policies to which Merchant must agree in order to use the Services, including updates to those agreements and policies; payment authorizations and transaction confirmations; customer service matters; and any other communications related to Merchant’s use of the Services.
8.2. Communications in electronic format will be considered to be in “writing” and are considered received by Merchant upon posting though our website or the Toast App or sending to Merchant via electronic mail, regardless of whether Merchant has accessed that Communication.
8.3. In order to access and retain electronic Communications, Merchant will need to have a computer or mobile device with Internet connectivity, software capable of opening PDF documents, access to the valid email address that Merchant used to register with Toast, a current web browser that includes 128-bit encryption with cookies enabled, and sufficient storage space to save communications electronically or to print them. Merchant should print or electronically save a copy of any electronic Communication and retain it for Merchant’s records.
8.4. Merchant’s consent to electronic Communications is valid until Merchant revokes it. However, consent to electronic Communications is a condition of the Services, and if Merchant revokes its consent, Merchant will no longer be permitted to use the Services. Merchant agrees it is responsible for keeping its e-mail address registered with Toast accurate and up to date.
8.5. Merchant acknowledges and agrees that by its representative clicking on the “I Agree”, the “Submit” or similar button on the Toast website or Toast App and associated with these TakeOut Terms or with any other electronic document authorizing us to provide the Services to Merchant, Merchant is indicating its intent to sign these TakeOut Terms and any other document. Merchant also agrees that its representative clicking on these buttons on the Toast website or in the Toast App shall constitute Merchant’s electronic signature by an authorized representative of Merchant to these TakeOut Terms or other such document displayed with the buttons and relating to the Services. Merchant further agrees that its representative’s electronic signature on the TakeOut Terms and other such documents has the same legal effect under state and federal law as if an authorized representative of Merchant signed the documents in ink on paper.
Toast may, in Toast’s sole discretion, run promotions that may make available marketing and advertising opportunities, including offering discounts to Diners on purchases at Merchant restaurants, subject to any terms that Toast establishes on a per-promotion basis (collectively, “Promotions”). In the event that such Promotions include promotional discount(s), Merchant acknowledges and agrees that any money that Toast owes to Merchant pursuant to any Promotion will be credited to Merchant’s Toast Merchant Account on the statement for the month following the Promotion. In the event that Toast enables Merchants to facilitate their own promotions, any related features will appear in the Toast discount tool that Merchant may use for online ordering. Merchant agrees to comply with and honor the terms of any Promotions sponsored by Toast, including the start and end times.
10. Modification of TakeOut Terms
Toast reserves the right to modify any portion of these TakeOut Terms at any time in its sole discretion by notifying Merchant of any changes by electronic mail, posting of the updated TakeOut Terms on its website or on Toast TakeOut, or delivering an alert to the Toast App. The changes will become effective, and shall be deemed accepted by Merchant, upon the effective date stated or initial posting/delivery date (if none is stated) and shall be effective on a going-forward basis. If Merchant does not agree to these TakeOut Terms or any updated version of the TakeOut Terms, its sole and exclusive remedy is to terminate Merchant’s use of Toast TakeOut.