2.1 This Platform contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third-parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other Platform or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Platform will automatically terminate and you will immediately destroy any copies you have made of the Content.
2.2 Toast will not pre-screen or review Content uploaded by users or visitors of the Platform, but Toast reserves the right to refuse or delete any such Content. In addition, Toast will have the right (but not the obligation) in its sole discretion to refuse or delete any Content that it reasonably considers to violate this Agreement or be otherwise illegal. Toast does not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will Toast be liable in any way for any Content, including liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Platform.
2.3 With respect to any portion of the Platform that is a desktop or mobile app, you are granted a non-transferable, non-exclusive, worldwide license, without the right to sublicense, to install and use such app on devices solely for your use in a manner consistent with the terms of this Agreement and the applicable Toast Merchant Agreement. Your rights to access, download and/or use any other Toast products or services made available through the Platform (whether directly or indirectly) will be subject to the terms and conditions of the agreement identified on the Platform and/or in connection with such products and services applicable to each such product or service, and you agree to comply with those terms and conditions.
2.5 The trademarks, service marks, and logos of Toast (the “Toast Trademarks”) used and displayed on this Platform are registered and unregistered trademarks or service marks of Toast. Other Toast product, and service names located on the Platform may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the Toast Trademarks, the “Trademarks”). Nothing on this Platform or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Platform without the prior written consent of Toast specific for each such use. The Trademarks may not be used to disparage Toast or the applicable third-party, Toast’s or third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any Platform is prohibited without Toast’s prior written consent. All goodwill generated from the use of any Toast Trademark will inure to Toast’s benefit.
2.6 You agree to use the Platform only for the management and operation of your business pursuant to the applicable Toast Merchant Agreement and not to: (a) take any action that imposes an unreasonable load on the Platform’s infrastructure, (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or any activity being conducted on the Platform, (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Platform, (d) delete or alter any material posted on the Platform by Toast or any other person or entity, or (e) frame or link to any of the materials or information available on the Platform.
2.7 The Platform may contain links to third-party websites (“External Platforms”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Platforms. The content of such External Platforms is developed and provided by others. You should contact the Platform administrator or Webmaster for those External Platforms if you have any concerns regarding such links or any content located on such External Platforms.
2.8 We are not responsible for the content of any linked External Platforms and do not make any representations regarding the content or accuracy of any materials on such External Platforms. You should take precautions when downloading files from all Platforms to protect your computer from viruses and other destructive programs. If you decide to access any External Platforms, you do so at your own risk.
2.9 Certain elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Section 2.1 of this Agreement. None of the Content for this Platform may be retransmitted without the express written consent from Toast for each and every instance.
3.1 TOAST, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “TOAST PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS TO YOU ABOUT THE PLATFORM, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE TOAST PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO YOU OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE PLATFORM AND THE CONTENT AT YOUR OWN RISK.
3.2 THE TOAST PARTIES DO NOT WARRANT OR REPRESENT TO YOU THAT THE PLATFORM WILL OPERATE, OR THAT THE PLATFORM, ITS SERVER OR THE CONTENT ARE, FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE PLATFORM OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO TOAST PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
3.3 THE PLATFORM AND CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE TOAST PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
3.4 IN NO EVENT WILL ANY TOAST PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE PLATFORM AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH TOAST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY, AND THE LIABILITY OF ANY OTHER TOAST PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.
3.5 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE TOAST PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless the Toast Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the Content or Platform. Toast will provide notice to you of any such claim, suit, or proceeding. Toast reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Toast’s defense of such matter.
5.1 Toast reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform or the Content at any time and for any reason without prior notice or liability. Toast reserves the right to change, suspend, or discontinue all or any part of the Platform or the Content at any time without prior notice or liability.
5.2 Sections 2 (Use of the Platform), 3 (Limitation of Liability and Warranty), 4 (Indemnification), 5 (Termination of Agreement) and 8 (Miscellaneous) will survive the termination of this Agreement.
You will comply with all federal, state, local and foreign laws, rules and regulations applicable to you and/or your business, including any applicable tax laws and regulations, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org and the by-laws, operating regulations and/or all other rules, policies and procedures of VISA, MasterCard, Discover and/or other Card (as defined below) networks as in effect from time to time.
The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Platform to countries or persons prohibited under the export control laws. By accessing, using or downloading the Platform, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export or re-export of the Platform.
The Platform is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Platform by the Government constitutes acknowledgement of our proprietary rights in the Platform.
Any action, claim, or dispute related to this Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrators will award to the prevailing party, if any, as determined by the arbitrators, all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees and attorneys’ fees. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. Failure of Toast to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement. No waiver will be effective against Toast unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Toast and you, this Agreement constitutes the entire agreement between you and Toast with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. This Agreement will inure to the benefit of our successors and assigns. You may not assign this Agreement without our prior written consent. Any information submitted or provided by you to the Platform might be publicly accessible. Important and private information should be protected by you. Toast is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.
As part of the Platform, Toast may offer mobile apps that are intended to be operated in connection with products made commercially available by third parties that operate using the Android operating system, which is owned by Google Inc. (“Google”, and such software, Google Software”). With respect to the Google Software, in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
9.1 Toast and you acknowledge that this Agreement is concluded between Toast and you only, and not with Google, and that as between Toast and Google, Toast, not Google, is solely responsible for Google Software and the content thereof.
9.2 You may not use Google Software in any manner that is in violation of or inconsistent with the usage rules set forth for Google Software in, or otherwise be in conflict with, the applicable market place terms of service (the “App Store Terms of Service”).
9.3 Your license to use Google Software is limited to a non-transferable license to use Google Software on an Android-based product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service.
9.4 Google has no obligation whatsoever to provide any maintenance or support services with respect to Google Software.
9.5 Google is not responsible for any product warranties, whether express or implied by law.
9.6 Toast and you acknowledge that Toast, not Google, is responsible for addressing any claims of you or any third party relating to Google Software or your possession and/or use of that Google Software, including, but not limited to: (i) product liability claims; (ii) any claim that Google Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
9.7 In the event of any third party claim that Google Software or the end-user’s possession and use of that Google Software infringes that third party’s intellectual property rights, as between Toast and Google, Toast, not Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
9.8 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
9.9 If you have any questions, complaints or claims with respect to Google Software, they should be directed to Toast.
9.10 The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies. The Google Play Market Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.
Effective as of October 15, 2015