Effective: November 19, 2018
PLEASE NOTE THAT SECTION 15 ENTITLED “ARBITRATION” CONTAINS A MANDATORY ARBITRATION PROVISION, WHICH MEANS THAT YOU AND TOAST ARE WAIVING THE RIGHT TO A TRIAL BY JURY AND AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THE ARBITRATION PROVISION IN SECTION 15.
1. Toast Services
The Toast TakeOut Service provides technology services to Restaurants to enable dining customers (“Diners”) to place orders for food, beverages and related products and services provided by the Restaurants (“Orders”) and facilitates payment to the Restaurant by the Diner for those Orders with a permitted Payment Method through the Toast TakeOut App and website (“Payment Transactions”). Toast facilitates the Order placement process with Restaurants and processes Diners’ payments to Restaurants, on behalf of each Restaurant.
Orders and Payment Transactions you submit through TakeOut are transactions between you and the Restaurant, and not with Toast or any of our affiliates. Toast is not the seller of any product or service offered by Restaurants and is not a party to any Payment Transaction facilitated through the TakeOut Service.
2. Restaurant Responsibilities
2.1. Each Restaurant is solely responsible and liable for marketing, selling, pricing, packaging and provision of any products or services offered to Diners through TakeOut in compliance with all applicable laws, regulations and rules or industry standards (“Applicable Law”). Toast makes no representation or warranty regarding whether a Restaurant holds any applicable permit, license, registration or other credential for its business, whether representations by a Restaurant are true or accurate, or whether a Restaurant complies with Applicable Law, and Toast is not responsible for the quality of the products or services provided by Restaurants.
2.2. Alcoholic Beverage Product Orders. Certain Restaurants may hold alcoholic beverage licenses and sell alcoholic beverage products. The Restaurant holding the alcoholic beverage license (“Licensee”) must approve your Order before the Order will be finalized, and only upon acceptance of the order by the Licensee will your Payment Method be charged. The portion of the funds charged to your Payment Method which pertains to your 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 Licensee, and has no responsibility or liability to you or any other person for any alcoholic beverage products you may purchase from a Licensee or for any Licensee’s compliance with Applicable Laws, including without limitation, local regulations regarding sale of alcohol. By placing an Order through TakeOut for alcoholic beverage products, you represent and warrant that (i) you are twenty-one (21) years of age or older; (ii) you are not procuring alcoholic beverage products for a person under twenty-one (21) years of age; (iii) you will provide bona fide government issued photo identification evidencing you are twenty-one (21) years of age or older to the Licensee as a prerequisite to receiving the Order; and (iv) you are purchasing alcoholic beverage products for your personal consumption and not for any commercial purpose or resale.
3. Registration for the TakeOut Service; Account Access
3.1. In order to use TakeOut, you must register with Toast and provide all information elements required. If you plan to use the App, you will need to download the App to your mobile device. Toast may in its sole discretion refuse to approve or may terminate registrations for the Service with or without cause or notice, other than any notice required by Applicable Law.
3.3. Once you have registered, your TakeOut account will be enabled, and you will be able to place and pay for Orders from Restaurants through either the TakeOut App or website. You also will be able to view your Order and recent Payment Transaction history, as well as make changes to your account profile information, through either the TakeOut App or website.
3.4. You agree to provide true, accurate, current and complete information for your TakeOut Service registration, and you agree not to misrepresent your identity or your Payment Method information. It is your responsibility to keep the information you provide to us up-to-date and accurate.
3.5. You are responsible for ensuring that your login information and Payment Method information remain confidential and used only by you. Only you have the right to access and use the TakeOut Service; this right is not transferable to other persons. Toast will assume that if your login or Payment Method are used to access the Service, the user has the legal authority to use such login or Payment Method. If you become aware of unauthorized use of your login or Payment Method, you agree to notify Toast immediately by e-mail at firstname.lastname@example.org.
4. Placing and Paying for Orders
4.1. Toast makes available the Toast App and website enabling the TakeOut Service and processes Payment Transactions for Orders on behalf of Restaurants as the agent of the Restaurants through the payment networks. When you pay for an Order placed through the TakeOut Service, you authorize Toast, as agent for the Restaurant, to submit the charge in the the amount of the Order (including any gratuities, fees and taxes) to your Payment Method as well as any credits in connection with chargebacks, reversals, refunds or adjustments. Toast, as the agent of the Restaurant, will assist the Restaurant in submitting the Payment Transaction to the payment network and processing the Payment Transaction. Upon Toast receiving the proceeds of the transaction, your payment obligation to the Restaurant will be deemed completed (except in the case of a later chargeback or reversal).
4.2. You must provide a valid Payment Method to pay for your Orders placed through the TakeOut Service. You authorize Toast to confirm your Payment Method is in good standing with the issuing financial institution. In order to do so, Toast may obtain an authorization to charge your Payment Method for a Payment Transaction. This authorization may reduce your available funds balance by the authorization amount until the Payment Transaction is actually charged to your Payment Method and the proceeds are processed and settled. Please contact your Payment Method issuer if you have questions regarding the status of an authorization or of a charge to your Payment Method. You agree that Toast, on behalf of the Restaurant, may resubmit a Payment Transaction for processing to a payment network in the event a prior Payment Transaction was declined or returned.
4.3. If you choose to store Payment Method information with Toast for your convenience and use in future TakeOut transactions, you agree that Toast may receive up-to-date information on your Payment Method information (such as card number or expiration date) through services available from the card networks and may update your Payment Method credentials stored with Toast (if you choose to store your Payment Method credentials) from time to time.
4.4. We may establish limitations concerning use of the TakeOut Services, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions you may make within certain time periods. We may decline to process any Payment Transaction without any notice to you. We may delay processing of or hold or cancel processing of any Payment Transaction upon the direction of the Restaurant or if we believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates Applicable Law, these Terms of Service or any applicable Toast policies.
4.5. Payments made through the TakeOut Service are also subject to the terms of your agreement with your Payment Method issuer. You are solely responsible for any charges or fees that may be imposed by your Payment Method issuer as a result of using the TakeOut Service.
5. Permitted Transactions.
By using the TakeOut Service, you agree that:
- You will only use the TakeOut Service for your own personal purposes and not for any commercial purposes, including to advertise, solicit or sell products or services to any other user or Restaurant.
- You will not use the TakeOut Service in any way that violates Applicable Law, these Terms of Service or other agreements, policies or rules that are applicable to the TakeOut Service.
- You may only use the TakeOut Service to submit Orders for and pay for a legitimate, bona fide product or service that is purchased from a Restaurant. The TakeOut Service may not be used to transfer money or process a Payment Transaction that is unrelated to a purchase of a product or service from a Restaurant.
- The information that you upload or post in connection with the Service does not infringe on anyone else's intellectual property or proprietary rights or otherwise conflict with the law or the rights of others.
- You will not upload, post or otherwise transmit through the Service any content that contains any viruses, trojan horses, time bombs, or any other harmful programs or elements.
- You will not provide false information about yourself to us, impersonate any other person, collect information about other users, or otherwise attempt to mislead others about your identity or the truthfulness or accuracy of the data you transmit through the Service.
- You will not damage, disable, disrupt, overburden, interfere with or attempt to gain unauthorized access to any portion of our Service, computer systems, servers or networks, or any other person’s use and enjoyment of the Service.
Toast may suspend or terminate your use of the TakeOut Service at its sole discretion for violation of these limitations.
7. Service Fees.
7.1. As of the date of these Terms, Toast does not charge you a fee to place or pay for Orders from Restaurants using TakeOut. We reserve the right to charge a fee in the future.
7.2. You may be charged fees as well as taxes by Restaurants in addition to the price of the products or services purchased. You also may be permitted to provide a gratuity. By placing an Order through TakeOut, you agree to pay all such charges, including gratuities, fees and taxes. All amounts to be charged to your Payment Method associated with your Order will be displayed to you within the App or website (as applicable) before you agree to submit your Order.
8. Order Changes, Cancellations, Refunds and Customer Service
8.1. Restaurants each set their own cancellation and refund policies. Once an Order has been submitted through TakeOut, you will need to contact the Restaurant directly to inquire if you can make a change to or cancel an Order placed through TakeOut or whether you may receive a refund of an Order.
8.2. For questions or customer service regarding an Order or the product or service provided by Restaurant, please contact the Restaurant directly. Each Restaurant’s contact information for customer service is available through the App and Toast TakeOut website.
8.3. For questions regarding use of the TakeOut App or website, please email email@example.com.
9. Disclaimer of Warranties, Waiver and Limitation of Liability
9.1. DISCLAIMER OF WARRANTIES: YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
TOAST WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY PRODUCTS OR SERVICES PROVIDED BY RESTAURANTS THAT ARE A CAUSE OF INJURY OR THAT ARE UNACCEPTBALE OR DO NOT MEET YOUR REQUIREMENTS OR EXPECTATIONS.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TOAST HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT AND QUALITY.
TOAST MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING (I) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE; (III) THE RESULTS YOU MAY OBTAIN BY USING THE SERVICE; (IV) WHETHER THE OPERATION OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; OR (V) WHETHER THE QUALITY OF THE SERVICE, OR PRODUCTS OR SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOAST OR A THIRD PARTY THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
YOU ACKNOWLEDGE THAT TOAST DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT TOAST IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING THE FOREGOING, TOAST DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY BREACHES OR ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES.
9.2. Waiver of Liability. You acknowledge and agree that the Restaurant is the seller of the food, beverages and related products and services which you may order and pay for through TakeOut. The Restaurant is solely responsible for any and all damages, claims, liabilities, costs, injuries or illness caused in whole or in part by the Restaurant. Restaurant is also solely responsible for any unclaimed property liability which may arise from Orders paid but not received by you.
9.3. LIMITATION OF LIABILITY. IN NO EVENT WILL TOAST BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, 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).
9.4. 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, TOAST’S LIABILITY OF WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.5. Each party acknowledges that the other party has entered into these Terms of Service relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, Toast will not be liable for any failure or delay resulting from any condition beyond its reasonable control, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
10. Indemnification. You agree to defend, indemnify and hold harmless Toast and its directors, officers, employees, affiliates and agents from and against any and all third party claims, liability, damages, expenses and costs actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Service or your access to, use or misuse of the Third-Party Content or Service, your infringement or infringement by any other user of your account, of any intellectual property or other right of any other person. 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.
11. Ownership of Content, Use of Trademarks.
11.1. Toast owns or has license to all rights, title, interest, copyright and other worldwide intellectual property and trade secret rights in and to the TakeOut Services (including all derivatives or improvements thereof). You may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the TakeOut 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 TakeOut Services in our sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Toast.
11.3. Third-Party Content. Through your use of the TakeOut 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 TakeOut Services, including but not limited to links to websites or other materials, software, text, graphics, videos, images, or advertising content (collectively referred to as “Third-Party Content”). All Third-Party Content and the TakeOut Services are protected by United States and foreign intellectual property laws. Unauthorized use of the TakeOut Services and/or Third-Party Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the TakeOut Services or Third-Party Content, and you will not use, copy or display the TakeOut Services or Third-Party Content except as permitted under these Terms of Service. No other use of the TakeOut Services or Third-Party Content is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the TakeOut 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 TakeOut Services will automatically terminate.
11.4. 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 these Terms of Service or applicable law.
11.5. 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 or reliance on any Third-Party Content posted, emailed, linked or otherwise transmitted via the TakeOut Services.
11.6. Trademarks. The trademarks, service marks, and logos of Toast (the “Toast Trademarks”) used and displayed on the TakeOut Services are registered and unregistered trademarks or service marks of Toast. Other Toast product and service names located in the TakeOut 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 TakeOut 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.
12. Termination of the Agreement.
12.2. Toast reserves the right, in its sole discretion, to limit, suspend, or terminate your access to all or any part of the Service at any time and for any reason without notice to you and without liability to you or any third party.
12.3. Terminating your use of the Service does not relieve you of the obligation to pay for any Orders placed as well as related fees and charges already incurred. In the event of termination of your use of the Service by you or us, we will not provide any refunds for amounts previously paid through the Service.
13. Electronic Communications
13.1. We may be required to provide you with certain disclosures, notices and communications (collectively, “Communications”) in written form. You agree to receive all Communications provided to you regarding your use of the Service electronically instead of in paper form, including by sending electronic mail to the e-mail address you registered with Toast, or by posting a notice or communicating with you through our website or App. Communications include these Terms or other agreements or policies to which you must agree in order to use the Service, including updates to those agreements and policies; payment authorizations and transaction receipts or confirmations; customer service matters; and any other communications related to your use of the Service.
13.2. Communications in electronic format will be considered to be in “writing” and are considered received by you upon posting though our website or the App or sending to you via electronic mail, regardless of whether you have accessed that Communication.
13.3. In order to access and retain electronic Communications, you will need to have a computer or mobile device with Internet connectivity, software capable of opening PDF documents, access to your valid email address that you used to register for your Toast account, a current web browser that includes 128-bit encryption with cookies enabled, and sufficient storage space to save communications electronically or to print them. You should print or electronically save a copy of any electronic Communication and retain it for your records.
13.4. Your consent to electronic Communications is valid until you revoke it. However, consent to electronic Communications is a condition of the Service, and if you revoke your consent, you will no longer be permitted to use the Service. You agree you are responsible for keeping your e-mail address registered with Toast accurate and up to date.
13.5. You acknowledge and agree that by clicking on the “I Agree”, the “Submit” or similar button on the Toast website or App and associated with these Terms or with any other electronic document authorizing us to provide the Service to you, you are indicating your intent to sign these Terms and any other document. You also agree that clicking on these buttons on the Toast website or in the App shall constitute your electronic signature to these Terms or other such document displayed with the buttons and relating to the Service. You further agree that your electronic signature on the Terms and other such documents has the same legal effect under state and federal law as if you signed the documents in ink on paper.
14. Modification of Terms. Toast reserves the right to modify any portion of these Terms at any time in its sole discretion by notifying you of any changes by electronic mail, posting of the updated Terms on its website, or delivering an alert to the Toast App installed on your mobile device. The changes will become effective, and shall be deemed accepted by you, upon the effective date stated or initial posting/delivery date (if none) and shall be effective on a going-forward basis. If you do not agree to these Terms or any updated version of the Terms, your sole and exclusive remedy is to terminate your use of the Service.
15.1. Agreement to Arbitrate. This Section 15 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 these Terms of Service or in connection with your use of the TakeOut 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.
15.2. 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).
15.3. Pre-Arbitration Dispute Resolution. Most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing Toast’s Customer Care team at firstname.lastname@example.org. 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. 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.
15.4. 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 these Terms of Service 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 the 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.
15.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator 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.
15.6. 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.
15.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Sub-Section 15.1 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 Sub-Section 15.1 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.
16. Survival. Upon termination of your use of the Service or these Terms for any reason, in addition to this section, the following sections shall survive termination: Section 2 (Restaurant Responsibilities), 7 (Service Fees), 9 (Disclaimer of Warranties, Waiver and Limitation of Liability), 10 (Indemnification), 11 (Ownership of Content, Use of Trademarks), 12 (Termination), 15 (Arbitration), 18 (Governing Law), and 19 (Miscellaneous).
17. Assignment. You may not assign these Terms or any rights or obligations hereunder, by operation of law or otherwise, without our prior written consent and any attempted assignment may be void. We reserve the right to freely assign these Terms and the rights and obligations hereunder, to any third party without notice and consent. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
18. Governing Law. 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 United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act will not apply to these Terms of Service.
19. Miscellaneous. If any provision of these Terms of Service 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, including any Toast policies governing the Service referenced herein, constitute 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.
16. $5 First Order Promo
The $5 First Order Promotion will be visible at checkout and will automatically be applied to the user’s first Toast TakeOut transaction, for a limited time. Limit one (1) promotion per Toast TakeOut account. The promotion is valid only for first-time users of Toast TakeOut. The promotion may only be applied in full to one (1) transaction at one (1) restaurant and may not be reused in the event of a cancelation and/or refund. The promotional value is issued by Toast, Inc. It may not be redeemed for cash and is non-refundable and non-transferrable.