Effective: March 1, 2018
FROM TIME TO TIME WE MAY UPDATE OR MODIFY THESE TERMS OF SERVICE IN OUR DISCRETION, AND WILL POST THE UPDATED TERMS TO https://pos.toasttab.com/toast/terms-of- service. WE MAY PROVIDE NOTICE TO YOU OF THE UPDATED TERMS OF SERVICE BY EMAIL, AND/OR AN ON-SCREEN NOTIFICATION THROUGH THE SERVICES. THE UPDATED TERMS OF SERVICE WILL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE TERMS OF SERVICE (“EFFECTIVE DATE”). ANY USE OF THE SERVICES AFTER THE EFFECTIVE DATE MEANS YOU HAVE ACCEPTED THE REVISED TERMS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED TERMS OF SERVICE IS TO CEASE YOUR ACCESS TO AND USE OF THE SERVICES.
1. Use of the Platform
1.1 You may only access and use the Services if you are an authorized employee of a Toast customer (“Merchant”) that has paid for a software subscription for Toast Services pursuant to a merchant agreement entered into between Toast and Merchant (the “Merchant Agreement”). Toast grants you a limited, revocable, non-exclusive, non-transferable license to access and use the applicable Services during the course of your employment with Merchant, solely and exclusively for Merchant’s internal business purposes.
1.2 You agree to use the Platform only for the management and operation of Merchant’s business pursuant to the terms and conditions of the Merchant Agreement and not directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Toast App, products or services; (b) modify, translate, or create derivative works based on the Toast App, products or services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Toast App, products or services; (c) use or access the Toast App, products or services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Toast App, products or services; (d) remove or obscure any proprietary notices or labels from the Toast App, products or services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with Toast's provisioning of the Services; (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the Toast App or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third- party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface.
2. Ownership of Content, Use of Trademarks
2.1 Toast owns or has license to all rights, title, interest, copyright and other worldwide intellectual property and trade secret rights in and to the Services (including all derivatives or improvements thereof). You may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services (“Feedback”) at any time. You irrevocably assign all right, title, interest and other worldwide intellectual property rights in and to the Feedback to Toast, Inc., and acknowledge that we are free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by you relating to the Services in our sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Toast.
2.3 Third-Party Content. Through your use of the Services you may be presented with material provided by third-parties, not owned or controlled by us, from our partners, and/or from other users of the Services, including but not limited to software, text, graphics, videos, images, or advertising content (collectively referred to as “Third-Party Content”). All Third-Party Content and the Services are protected by United States and foreign intellectual property laws. Unauthorized use of the Services and/or Third-Party Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Services or Third-Party Content, and you will not use, copy or display the Services or Third-Party Content except as permitted under these Terms of Service. No other use of the Services or Third-Party Content is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the Services and Third-Party Content. You may not sell, transfer, assign, license, sublicense, or modify the Third-Party Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Third-Party Content in any way for any public or commercial purpose other than as permitted hereunder. The use or posting of any of the Third-Party Content on any other platform, or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms of Service, your right to access and/or use the Third-Party Content and Services will automatically terminate.
2.4 We do not review, pre-screen or filter all User Content, or Third-Party Content, but we do reserve the right to refuse to accept, or delete any User Content or Third-Party Content in our sole discretion. In addition, we have the right (but not the obligation) in our sole discretion to reject or delete any content that we reasonably consider to be in violation of this Agreement or applicable law. We do not guarantee the accuracy, integrity or quality of any Third-Party Content, regardless of whether such products or services are designated as “certified,” “validated” or the like. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. You should take precautions when downloading files from any platform to protect your computer from viruses and other destructive programs. If you decide to access any Third-Party Content, you fully assume the risk of doing so. Under no circumstances will Toast be liable in any way for any Third-Party Content, including liability for any errors or omissions in any Third-Party Content or for any loss or damage of any kind incurred as a result of the use of any Third-Party Content posted, emailed or otherwise transmitted via the Services.
2.5 If required by Toast, each user must: (a) provide true, accurate, current and complete information on the Toast App’s registration form (collectively, the "Registration Data") and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user's information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user's account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein. Each user is wholly responsible for maintaining the confidentiality and security of his/her username and password, and is wholly liable for all activities occurring thereunder. Toast cannot and will not be liable for any loss or damage arising from a user's failure to comply with this sub-section, including any loss or damage arising from any user's failure to (a) immediately notify Toast of any unauthorized use of his or her password or account or any other breach of security, or (b) exit and close his or her account at the end of each session.
2.6 The trademarks, service marks, and logos of Toast (the “Toast Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Toast. Other Toast product, and service names located in the Services may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the Toast Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the Services 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 that may damage any goodwill in the Trademarks. Except as described herein, the use of any Trademarks is prohibited without Toast’s prior written consent. All goodwill generated from the use of any Toast Trademark or Third-Party Trademark will inure to Toast’s, or the applicable Third Party’s benefit, as applicable.
4. Limitation of Liability and Disclaimer of Warranties
4.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TOAST AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT AND QUALITY. TOAST AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TOAST AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER TOAST NOR ITS THIRD- PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMIT A TIONS, DELA YS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICA TIONS F ACILITIES. TOAST IS NOT RESPONSIBLE FOR ANY DELA YS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, TOAST DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY TOAST, THE SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.
4.2 IN NO EVENT WILL TOAST BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, 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 SERVICES, EVEN IF TOAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW TOAST’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO ONE HUNDRED DOLLARS ($100).
4.3 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 MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless Toast and its directors, officers, employees, affiliates and agents 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 Third-Party Content or Services. 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.
6. Termination of the Agreement
6.1 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 Services or User 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 Services at any time without prior notice or liability.
6.2 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.
7.1 Agreement to Arbitrate. This Section is referred to as the Arbitration Agreement. You agree that any and all disputes or claims that have arisen or may arise between you and Toast, whether arising out of or relating to this Agreement or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by agreeing to these Terms of Service, you and Toast are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
7.2 Prohibition of Class and Representative Actions and Non-Individualized Relief. You and Toast agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Toast agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
7.3 Pre-Arbitration Dispute Resolution. Toast is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing Toast’s support team at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Toast should be sent to Toast at 401 Park Drive, Suite 801, Boston, MA 02215.
Attn: General Counsel. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and Toast do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Toast may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Toast or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Toast is entitled.
7.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless you and Toast agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Toast agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
7.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
7.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
7.7 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 7.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 7.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms of Service will continue to apply.
8. Compliance with Laws
8.1 You agree to comply with all federal, state, local and foreign laws, rules and regulations applicable to you and Merchant’s business in relation to your use of the Services, 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, and any and all other rules, policies and procedures of VISA, MasterCard, Discover and/or other card networks as in effect from time to time.
8.2 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 part of the Services to countries or persons prohibited under the export control laws. By accessing, using or downloading the Services, 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 Services.
Any action, claim, or dispute related to these Terms of Service 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. 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 these Terms of Service, which will remain in full force and effect. Failure of Toast to act on or enforce any provision of these Terms of Service will not be construed as a waiver of that provision or any other provision herein. 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, these Terms of Service 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 you and Toast with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. These Terms of Service will inure to the benefit of our successors and assigns. You may not assign these Terms of Service without our prior written consent. Any information submitted or provided by you to the Services might be publicly accessible. Important and private information should be protected by you.
Google-Enabled Software Applications
As part of the Services, Toast may offer mobile applications 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 these Terms of Service are entered into between Toast and you only, and not with Google, and that, notwithstanding anything to the contrary herein, 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 then-current Google terms of service available at: https://play.google.com/intl/en-us_us/about/play-terms.html (the “App Store Terms of Service”).
9.3 Your license to use Google Software is limited to a non-exclusive, non-transferable license to use Google Software on a supported Android-based device that you own, or otherwise have rights to use, and that meets the applicable system and compatibility requirements, all as set forth by the usage requirements 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.