Last Updated: 10/01/2018
Thank you for using the Toast Services (as defined below), an Internet-based business funding platform that allows users to sell future receivables to be generated by their businesses and use the proceeds from sales to fund their businesses. This Toast Terms of Service (this “Agreement” or these “Terms”), governs your use of the Toast Services.
To be eligible to register for a Toast account and use Toast’s Services, you must review and accept the terms of this Agreement by clicking on the “I accept” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE TOAST SERVICES, YOU AGREE TO THESE TERMS AND CONDITIONS WITH TOAST CAPITAL, LLC (“TOAST”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE THE TOAST SERVICES.
In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Toast account or using the Toast Services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Toast that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization). The exception to this is if that organization has a separate contract with Toast covering one or more accounts and use of the Toast Services, in which case that contract will govern the Toast Services with respect to those accounts only.
Some of the features of the Toast Services may be subject to additional terms and conditions, which are posted or made available separately from these Terms (“Additional Terms”). Your use of the Toast Services may also be subject to additional policies, guidelines or rules we also post or make available. Such Additional Terms policies, guidelines and rules are incorporated and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control unless stated otherwise.IMPORTANT NOTES:
TOAST DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE TOAST SERVICES, AND THESE TERMS LIMIT TOAST’S LIABILITY TO YOU.
DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE TOAST SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Certain Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by Toast that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of you; (b) was properly known to you, without restriction, prior to disclosure by the us; (c) was properly disclosed to you, without restriction, by another person with the legal authority to do so; or (d) is independently developed by you without use of or reference to the our Confidential Information.
“Toast Services” means the Internet-based business funding platform that allows you to sell future receivables generated by your businesses and use the proceeds from sales to fund your businesses and other services provided by Toast to you (including the Toast APIs, Documentation and technical support that may be made available by Toast to you in connection with such services), and subsequent updates or upgrades of any of the foregoing made generally available by Toast.“Customer Content” means content and other material supplied or made available to Toast by you (or, if you are an agency, your clients for which you are an agency of record) through the use of or access to the Toast Services.“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Toast for the Toast Services.
2.1 These Terms. Toast may revise these Terms from time to time. If Toast does revise these Terms, the revised Terms will supersede prior versions. Unless Toast says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Toast will provide you advance notice of any material revisions if required by law. This notice will be provided via the account portal, via an email to the email address Toast has on file or by posting on Toast’s website. For other revisions, Toast will update the effective date of these Terms at the top of the page. Toast encourages you to check the effective date of these Terms whenever you visit Toast’s website or account portal. Your continued access or use of the Toast Services constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the Toast Services and Toast is not obligated to provide you with the Toast Services.
2.2 Toast Services. You acknowledge that Toast may change, deprecate or republish any Toast APIs for any Toast Services or feature of the Toast Services from time to time, and that it is your responsibility to ensure that calls or requests you makes to the Toast Services are compatible with then-current Toast APIs for the Toast Services. Although Toast endeavors to avoid changes to the Toast APIs or Toast Services that are not backwards compatible, if any such changes become necessary Toast will endeavor to notify you at least 30 days prior to Toast’s implementation of any such incompatible changes to the Toast Service of which it becomes aware if required by law.
3. Toast Services
3.1 Provision of Services. Subject to the terms and conditions of this Agreement, Toast will use commercially reasonable efforts to make the Toast Services available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the Toast Services to manage Customer Content, including the right to write and execute software applications or websites (“Customer Applications”) that interface with the Toast Services. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Customer clients.
3.2 Restrictions. The rights granted herein are subject to the following restrictions (the “License Restrictions”):
(a) You will not reverse engineer, decompile, disassemble , modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Toast Services;
(b) Except for Customer Applications that use the Toast Services, you will not transfer, distribute, resell, lease, license, or assign Toast Services or otherwise offer the Toast Services on a standalone basis, and, without limiting the foregoing, if Customer is an agency, you will only use the Toast Services on behalf of your clients of which you are an agency of record and which have authorized you to use the Toast Services on behalf of such clients within the scope of your other bona fide agency responsibilities for such clients;=
(c) You will not (nor will it permit any third party to) use Toast Services in any manner that violates any term of this Agreement;
(d) You will not otherwise use the Toast Services outside the scope expressly permitted hereunder; and
(e) You will ensure that you and your users do not use temporary email addresses or share user accounts among multiple individuals, and you will permit Toast to terminate the accounts of any users that violate this Agreement.
3.3 Account Registration; Other Customer Responsibilities.
(a) To use the Toast Services, you will be asked to create an account. As part of the account creation process, you will be asked to provide your email address and create a password. Until you apply for an account, your access to the Toast Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account.
(b) You will (i) be responsible for all use of the Toast Services and Documentation under your account (whether or not authorized), (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and Customer Application(s), (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Toast Services and Documentation and notify Toast promptly of any such unauthorized access or use and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Toast Services, including as set forth in the Documentation. You will be solely responsible for your failure to maintain such equipment, software and services, or to use the current version of the APIs made available by Toast or, if you choose to use any of the SDKs made separately available by Toast, the current version of such SDKs, and Toast will have no liability for such failure. With your permission (which may be by email or other reasonable means), Toast may log into user accounts in order to debug the Toast Services.
4.1 Fees. You agree to pay the subscription fees, additional usage fees and other fees set forth in Toast’s standard schedule of fees, as may be updated from time to time, or any other order forms for the Toast Services ordered by you and accepted in writing by Toast. Except as otherwise mutually agreed upon in writing, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
4.2 Payment. Subject to any payment terms set by Toast, Toast may let you pay amounts due under these Terms in arrears. If Toast lets you do that, you will make all of the payments due hereunder within 30 days of any invoice. Subject to the fee dispute resolution procedures below, if you are overdue on any payment and fail to pay within 10 business days of a written notice of your overdue payment, then Toast may assess and you must pay a late fee and/or suspend your account until you pay the amount you are overdue plus the late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less.
4.3 Fee Disputes. You must notify Toast in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to Toast within 60 days of the applicable charge and Toast will work together with you to resolve the applicable dispute promptly. If you do not provide Toast with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.
4.4 Suspension. If your use of the Toast Services exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Toast may suspend your account without prior notice to you. Toast will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of your account pursuant to this section.
4.5 Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by you. You will not withhold any taxes from any amounts due to Toast.
5. Proprietary Rights and Confidentiality
5.1 Toast’s Ownership Rights. As between the parties, Toast exclusively owns all right, title and interest in and to the Toast Services. Except for the express rights granted hereunder, Toast reserves all rights, title and interests in and to the Toast Services and Toast’s Confidential Information.
5.2 Toast Marks. Toast hereby grants you a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Toast (each, a “Toast Mark”) for the purpose of promoting or advertising that you use the Toast Services. In using Toast Marks, you may not: (a) display a Toast Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Toast; (b) use Toast Marks to disparage Toast or its products or services; or (c) display a Toast Mark on a site that violates any law or regulation. Furthermore, Toast may modify any Toast Marks at any time, and upon notice, you will use only the updated Toast Marks. Other than as permitted in this Section, you may not use any Toast Marks without prior written consent. All use of the Toast Marks will be subject to any trademark usage guidelines that Toast may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Toast.
5.3 Feedback. Customer may from time to time provide Toast suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Toast Services. Toast will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Toast will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.4 Customer Content. As between the parties, the Customer Content and Customer Applications will be owned by you (or, if Customer is an agency, Customer’s client(s)). You hereby grant to Toast a non-exclusive, worldwide license to copy, distribute and use Customer Content.
5.5 Confidentiality. You agrees to use our Confidential Information solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without our prior written consent, except as otherwise permitted hereunder. However, you may disclose Confidential Information (a) to you employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case you will provide us with prior written notification thereof, will provide us with the opportunity to contest such disclosure, and you will use reasonable efforts to minimize such disclosure to the extent permitted by applicable law. You will not disclose the terms of this Agreement and the Additional Terms to any third party, except that you may confidentially disclose such terms to actual or potential lenders, investors or acquirers. You agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, we are entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to us. You will promptly notify us in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.6 Aggregated Information. Notwithstanding anything to the contrary, Toast will have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Toast Services and will be free (during and after the term hereof) to (a) use such data and other information to develop and improve the Toast Services and other Toast offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
6. Warranties and Disclaimers
6.1 Customer. You warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Applications and Customer Content in connection with the Toast Services as contemplated herein. Without limiting the foregoing, if Customer is an agency, it warrants that it has been granted the necessary rights from its client(s) to use the Toast Services and Customer Content related to such client(s) on such client(s)’ behalf.
6.2 DISCLAIMER. THE TOAST SERVICES AND ANY BETA SERVICES (AS DEFINED BELOW) ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TOAST HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE TOAST SERVICES AND BETA SERVICES. WITHOUT LIMITING THE FOREGOING, TOAST DOES NOT WARRANT THAT THE TOAST SERVICES OR BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
6.3 BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH TOAST WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY TOAST. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. YOU OR TOAST MAY TERMINATE YOUR ACCESS TO THE BETA SERVICES AT ANY TIME.
You will defend, indemnify and hold Toast and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the Toast Services (“Claim”). Toast and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. Toast reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section. You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Toast in connection with any Claim. You will also be liable to Toast for any costs and attorneys’ fees Toast incurs to successfully establish or enforce Toast’s right to indemnification under this Section.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL TOAST BE LIABLE TO YOU FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF TOAST HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (II) DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE LESSER OF $1,000 OR THE AMOUNTS PAID BY YOU DURING THE 12 MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9. Termination and Suspension
9.1 Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
9.2 Termination and Suspension. You may terminate your account at any time through the account management tools made available through the Toast Services. Toast may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within 5 days after written notice of that breach. Toast may also terminate or suspend your account immediately for cause if: (a) there is reason to believe the traffic created from your use of the Toast Services or your use of the Toast Services is fraudulent or negatively impacting the operating capability of Toast Services; (b) Toast determines, in its sole discretion, that providing the Toast Services is prohibited by law, it has become impractical or unfeasible for any legal or regulatory reason to provide the Toast Services, or that termination or suspension is appropriate in its business judgment; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Toast suspends your account, Toast will make a reasonable attempt to notify you if required by law. Note that no refund will be provided in the event of any suspension or termination of your account.
9.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
10.1 Export Controls. The Toast Services, including any software Toast may provide in connection with the Toast Services, may be subject to applicable export control laws and economic sanctions regulations. In receiving this software or the Toast Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and the Toast Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Toast Services. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any such software or other aspect of the Toast Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of Toast’s software and the Toast Service if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10.2 Publicity. You agree that Toast may refer to your name and trademarks in Toast’s marketing materials and website; however, Toast will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
10.3 Assignment; Delegation. You may not assign or otherwise transfer this Agreement, in whole or in part, without our prior written consent. We may assign or otherwise transfer this Agreement, in whole or in part, without your prior written consent. In addition, you agree that Toast may have any of its obligations performed through an affiliate of Toast, provided that Toast will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance hereunder as if it were Toast hereunder. Any attempted assignment, delegation, or transfer by either party in violation of this Section will be null and void. This Agreement will be binding on the parties and their successors and permitted assigns.
10.4 Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Amendment. Toast may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. If required by law, Toast will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. By continuing to use the Toast Services demonstrates your acceptance of any such amendment or modification.
10.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.8 Governing Law. The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the Commonwealth of Massachusetts, USA, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal collocated in Boston, Massachusetts, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you will be sent to your email or other address as set forth in your account information or posted in the account portal or on our website. Notices to Toast must be sent to the following address: Toast Inc., 401 Park Drive #801, Boston, MA 02215, Attn: Brian Elworthy.
10.10 Entire Agreement. This Agreement and any Additional Terms comprise the entire agreement between you and Toast with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Toast, its agents or employees will create a warranty.
10.11 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.12 Interpretation. For purposes hereof, “including” means “including without limitation”. All dates and times set forth in this Agreement or any related document are in relation to United States Eastern Time, unless otherwise specified.
11. Agreement to Arbitrate
11.1 First Try Customer Support. If you have any issues with the Toast Services or Toast, you must try to resolve the issue first through Toast customer support
11.3 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Toast and its affiliates on the other hand, agree that the parties will go to court to resolve disputes relating to (a) your, your affiliate’s, Toast’s or Toast’s affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or (b) your violation of any term of this Agreement. Also, either party can bring a claim in small claims court in Boston, Massachusetts or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
11.4 Details of Arbitration Procedure.
(a) Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
(b) Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(c) The arbitrator’s award will be based on the evidence admitted and the substantive law of the Commonwealth of Massachusetts and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
(d) Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
11.5 Class Action Waiver. Both you and your affiliates, on one hand, and Toast and its affiliates on the other hand, agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Toast and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Toast customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.