We provide services that allow Merchants to send short message service (“SMS”) messages (“Messages”) to your guests (the “Merchant-Initiated SMS Services”). You and your Employees (as such term is defined in the Toast Merchant Agreement) will only use the Merchant-Initiated SMS Services in compliance with these SMS Marketing Special Terms (the “SMS Marketing Terms”), the Toast Merchant Agreement, the End User License Agreement (the “EULA”), and all other applicable laws and regulations of the jurisdiction from which you send Messages and in which your Messages are received. The Merchant-Initiated SMS Services shall be deemed “Services” under the EULA and the Toast Merchant Agreement.
You are solely responsible for User Content (as such term is defined in the EULA) used within the Merchant-Initiated SMS Services, and the consequences of using User Content within the Merchant-Initiated SMS Services. Toast is under no obligation to edit or control User Content that you or any other users use within the Merchant-Initiated SMS Services, and will not be in any way responsible or liable for User Content. Toast may, however, at any time and without prior notice, either directly or through a third party of its choosing, screen, remove, edit, or block any User Content for any reason, including any User Content that in our sole judgment, or the judgment of carriers, vendors, or other relevant third party parties (“Relevant Third Parties), violates these SMS-Marketing Terms or is otherwise objectionable, such as, without limitation, User Content that Toast or Relevant Third Parties determine is or could be interpreted to be infringing, defamatory or otherwise unlawful, deceptive or intends to deceive, invades privacy, causes concern for safety, harmful, threatening, abusive, malicious, misleading, harassing, violent or incites violence, intended to intimidate, vulgar, offensive, does not meet age-gating requirements, obscene / illicit, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”). You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Toast with respect to User Content. We expressly disclaim any and all liability in connection with User Content. User Content that violates the SMS-Marketing Terms in Toast or Relevant Third Parties’ sole discretion may result in the immediate suspension of the Merchant-Initiated SMS Services.
By using User Content within the Merchant-Initiated SMS Services, you represent, warrant, and covenant that: (i) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use, and to authorize Toast to use, your User Content as necessary to provide the Merchant-Initiated SMS Services; and (ii) your User Content, and the use of your User Content as contemplated by these SMS-Marketing Terms, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (C) cause Toast to violate any law or regulation; or (D) contain Objectionable Content.
You further represent, warrant, and covenant that when using the Merchant-Initiated SMS Services, you will (i) comply with all applicable laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, and the CAN-SPAM Act of 2013; (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom you have obtained the legally required consent to do so (“Subscribers”); (iv) promptly provide Subscribers who request to stop receiving Messages from Toast or Merchant with clear, accurate opt-out instructions (v) comply with any Acceptable Use Policy or other policies of any other third party provider used by Toast to provide the Merchant-Initiated SMS Services, which may change from time-to-time (a “Third Party Provider”), which terms Toast will share with Merchant upon written request (the “AUP”); and (vi) comply with the messaging principles and best practices as promulgated by the Cellular Telecommunications Industry Association (CTIA) from time to time and any messaging principles and/or acceptable use policies of any applicable upstream vendor or provider of such services.
In addition to the indemnities set forth in the EULA and the Toast Merchant Agreement, you further agree to defend, indemnify and hold harmless Toast and its directors, officers, employees, affiliates and agents from and against any claims, liability, damages, expenses and costs, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach or alleged breach of these SMS Marketing Terms.
Toast may, in its discretion, direct Subscribers to contact the Merchant in the event they have any questions or concerns about the content of the SMS Messages, and Merchant shall use commercially reasonable efforts to timely address any such concerns . The Merchant-Initiated SMS Services are subject to change or termination at any time, without notice, although Toast will endeavor to provide notice if the Merchant-Initiated SMS Services is terminated in its entirety, either through an in-product notice or by other contact method.
Toast and its Third Party Provider may investigate incidents that are, in Toast and/or a Third Party Provider’s sole discretion, contrary to the SMS Marketing Terms, the AUP, or the policies of any Third Party Provider, and provide requested information to third parties (including but not limited to Third Party Providers and Relevant Third Parties) who have provided notice to Toast, stating that they have been harmed by your failure to abide by applicable law, any of the SMS Marketing Terms, the AUP or the policies of any Third Party Provider. Toast may bring legal action to enjoin violations and/or collect damages caused by your violation of any part of the SMS Marketing Terms, the AUP, or the policies of any Third Party Provider. Your violation of the SMS Marketing Terms, the AUP or the policies of any Third Party Provider will constitute a material breach for purposes of the Toast Merchant Agreement.