Merchant Agreement

Effective as of: October 25, 2023

BY EXECUTING AN ORDER FORM AND MERCHANT APPLICATION AND/OR MASTER SERVICES AGREEMENT THAT INCORPORATES THIS MERCHANT AGREEMENT (THE “AGREEMENT” OR “MERCHANT AGREEMENT”) OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY TOAST CANADA, INC. (“TOAST”), MERCHANT AGREES TO BE BOUND BY AND COMPLY WITH THE FOLLOWING: THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PAYMENT PROVIDER TERMS AND CONDITIONS, THE TOAST PRIVACY STATEMENT, AND ALL OTHER TERMS, CONDITIONS, AND POLICIES PERTAINING TO THE SERVICES AS DESCRIBED HEREIN, ALL OF WHICH ARE INCORPORATED INTO THIS MERCHANT AGREEMENT BY REFERENCE (COLLECTIVELY, THE “ADDITIONAL TERMS”), AS APPLICABLE TO THE SPECIFIC SERVICES MERCHANT USES. MERCHANT ACKNOWLEDGES AND AGREES THAT (1) BY EXECUTING THIS AGREEMENT WITH TOAST, MERCHANT IS ALSO ENTERING INTO THE PAYMENT PROVIDER TERMS AND CONDITIONS SOLELY WITH THE PAYMENT PROVIDER, (2) MERCHANT ACCEPTS THE PAYMENT PROVIDER TERMS AND CONDITIONS AND WILL COMPLY THEREWITH AND CONFIRMS ITS ORDER FOR THE PAYMENT PROVIDER SERVICES AND (3) THE PAYMENT PROVIDER TERMS AND CONDITIONS FORM A BINDING AGREEMENT BETWEEN PAYMENT PROVIDER AND MERCHANT.

IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ANY OF THE ADDITIONAL TERMS, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY TOAST SERVICES, SOFTWARE OR HARDWARE. CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN SECTION 18 (DEFINITIONS). WHERE APPLICABLE, CERTAIN REFERENCES TO TOAST MAY ALSO BE DEEMED TO INCLUDE PAYMENT PROVIDER. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS MERCHANT HAS AGAINST TOAST TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TOAST ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. 

Merchant and Toast hereby agree as follows:

1. Scope

The Agreement applies to and governs Merchant's access to and use of the Services, Hardware, and Professional Services ordered by Merchant under an Order. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees to place orders and process Payments; (b) providing access to Payments processing by Payment Provider and Settlement by Payment Provider to the Merchant Bank Account; (c) providing Merchant with certain reporting on its sales and activities; and (d) working with Merchant with respect to any Customer inquiries related to Payments or placing orders, in each case under Merchant’s Toast Account or Merchant’s Payment Provider Account. 

2. Right to Use the Services and Hardware

2.1. Subject to Merchant’s compliance with the terms and conditions of the Agreement, Toast grants to Merchant a limited, non-transferable (except in accordance with Section 17.4 below), non-sub-licensable, nonexclusive, revocable license during the Term to permit Employees to access and use the Services solely and exclusively for Merchant’s internal business purposes. The Services are licensed, not sold, and Merchant acknowledges that it does not acquire any license to use the Services in excess of the scope and duration of the license to the Services specified in the Agreement. This license does not grant to Merchant or any other party any right to copy, modify, enhance, or transfer the Services or otherwise disclose any Confidential Information disclosed by Toast to any third party, including without limitation any Intellectual Property Rights (as more fully described in Section 5.1 below).

2.2. Merchant is (a) solely responsible for maintaining the security and control of its premises, equipment (including Hardware, Payment Provider Terminals and associated firmware), and username(s) and access passwords to its Toast Account; and (b) fully liable for all activity of its Employees and Customers that occur under its Toast Account, whether authorized by Merchant or not. Merchant agrees to immediately notify Toast if it becomes aware of any unauthorized activity under its Toast Account and will cooperate with Toast to prevent any further unauthorized activity. Furthermore, regarding Hardware or Payment Provider Terminals being shipped to Merchant, Merchant agrees that change of title and ownership, risk of loss, theft, damage or destruction, shall transfer to Merchant at the point of shipment.

2.3. As part of the Services, Toast may provide access to the Toast Platform, including certain Toast Apps. When Employees download or use the Toast Platform or any Employee-facing Toast App, Merchant must ensure its Employees read and agree to the End User License Agreement on their own behalf or on behalf of Merchant, as applicable, which protects Toast’s rights in the Services and allows use of the applicable Toast App only for the purposes of Merchant (including its Employees) accessing and using the Services in accordance with this Section 2 and Section 4 below; and ensure that its Employees read and acknowledge the Privacy Statement which contains information about how Toast carries out processing of Personal Information as a Processor in relation to Merchant Employees.

2.4. As part of the Services, Toast may from time to time communicate with Merchant using the contact methods provided by Merchant at the time of application and/or during Merchant’s use of the Services, Hardware or Professional Services. Merchant expressly agrees that if it or any of its Employees provide a mobile phone number or email address to Toast, Toast shall be permitted to contact Merchant or Employees, including without limitation at that number or email address using autodialed or pre-recorded message calls, text messages or emails in order to provide transactional, servicing, support maintenance and account-related messages to Merchant.

2.5. Where new products and services are provided by Payment Networks, Toast, on behalf of Payment Provider, will obtain Merchant’s express written consent before providing the new products and services to Merchant. Merchant is in no way obligated  to accept the new products or services. If Merchant chooses to accept contactless Payments at the point-of-sale through the Payment Provider Terminals or otherwise, including contactless payments made from a Customer’s mobile wallet or mobile device, Merchant shall be able to cancel the contactless acceptance on their Payment Provider Terminals for each Payment Network, with thirty (30) days’ written notice to Toast or the Payment Provider, without penalty and while maintaining all other aspects of this Agreement.

3. Implementation and Professional Services

3.1. If Merchant orders any Professional Services under an Order, then, upon request from Toast, Merchant will promptly provide Toast with any information, resources and assistance required by Toast to enable the implementation of the Services or ongoing provision of the Services for Merchant’s purposes as described on the Order and, if applicable, to provide training to Employees. Any dates specified in an Order are estimates only and are contingent upon Merchant’s timely compliance with its obligations relative to such implementation and any dependencies on Merchant’s performance. If, and to the extent of, any default or breach on the part of Toast under this Agreement that is caused in whole or in part as a result of Merchant’s failure to timely perform its obligations under this Agreement and/or any Order, then Toast shall be entitled to relief from all liability with respect to such failure or delay, and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ prior written notice to Merchant.

4. Usage Restrictions

4.1. Merchant will 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 Services; (b) modify, translate, or create derivative works based on the Services; (c) copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (e) remove or obscure any proprietary notices or labels from the Services; (f) 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 (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the Toast Platform or other aspects of the Services); (g) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the Toast Platform or otherwise provided or made available to Merchant; (h) 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; (i) conduct any penetration or vulnerability testing on the Service or Toast’s network; or (j) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user Platform.

4.2. Merchant represents, warrants and covenants that with respect to the Services and the Payment Provider Services (a) any sales transaction submitted by Merchant will represent a bona fide sale of goods or services by Merchant to a Customer; (b) any sales transactions submitted by Merchant will accurately describe the goods and/or services sold and delivered to a Customer; (c) Merchant will fulfil all of its obligations to each Customer for which Merchant submits a transaction and will resolve any consumer dispute or complaint directly with Customer, where possible; (d) Merchant, and all transactions initiated by Merchant, will comply with Applicable Law and Rules and Merchant is duly licensed and qualified to carry out its business operations and perform its obligations hereunder; (e) except in the ordinary course of business, no sales transaction submitted by Merchant through the Services will represent a sale to any principal, partner, proprietor, or owner of Merchant’s entity; (f) neither Merchant nor any of its Employees shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by Applicable Law and Rules, or this Agreement, or engage in the unauthorized use, transfer or disclosure of the same; (g) Merchant’s use of the Services will be in compliance with this Agreement; and (h) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant’s obligations under this Agreement. Merchant acknowledges and agrees that Merchant is solely responsible for its own compliance with all Applicable Law and Rules. 

4.3. Merchant will use the Services and the Payment Provider Services only for the management and operation of its own business, and not for any business, services or offerings of non-affiliated third-parties. Without limiting the generality of the foregoing, Merchant will not act as a payment intermediary or aggregator on behalf of any third-party. This means that Merchant may not use the Services or the Payment Provider Services to handle, process or transmit funds for any third party and may only use the Payment Provider Services to accept payment for products and services sold by Merchant itself to the Customer and only for the type of products and services Merchant described in its application. Merchant is also prohibited from using the Services to process cash advances. 

4.4. Toast will review the information that Merchant submits via an Order Form, in connection with Merchant’s request to sign up for the Services, and Toast will forward such information on to its Payment Provider. Merchant hereby authorizes Toast to request identity verifying information about the Merchant, including, but not limited to, (a) a consumer and/or credit report that contains Merchant’s name and address and may contain “credit information” such as age, occupation, place of residence, previous places of residence, marital status, spouse’s name and age, number of dependants, particulars of education or professional qualifications, places of employment, previous places of employment, estimated income, paying habits, outstanding debt obligations, cost of living obligations and assets and other personal information, and may request such information separately from a consumer and (b) to the extent applicable, a confirmation from the appropriate governmental authority of the Merchant’s corporation’s legal existence. Merchant hereby agrees that Toast may share information about Merchant and the Merchant Bank Account with its Payment Provider for the purpose of providing the Services to Merchant or with other third parties for validation purposes. Once Merchant submits its Order Form, which includes the Merchant application, Toast or its Payment Provider may conclude that Merchant is not permitted to use the Services, in which case Toast may decide in its sole discretion to discontinue entering into an Agreement with Merchant, or if an Agreement has already been formed, may immediately terminate this Agreement by notice to Merchant. Merchant shall ensure any information it has provided, including information regarding its Merchant Bank Account, is up to date at all times, shall notify Toast immediately of any changes thereto and authorizes and instructs Toast to share any such changes with its Payment Provider. Toast may request additional information from the Merchant at any time, and the Merchant hereby agrees to fulfil these requests.

4.5. Merchant will provide information requested by Toast, in connection with Merchant’s application or ongoing business thereafter, within five (5) business days following such request (unless required sooner under Applicable Law and Rules or by Payment Provider), including, without limitation, invoices from suppliers, government-issued identification or a business license. Merchant must also provide Toast with access to inspect Merchant’s business location(s) upon request. Merchant, each of its then-current beneficial owners (i.e., persons who directly or indirectly have greater than a 25% ownership stake in Merchant), and its then-current designated control person(s) (i.e., an individual having significant responsibility to control, manage or direct Merchant), each authorize Toast to obtain — and will provide to Toast upon request — identity-verifying information about Merchant, its beneficial owners, and such designated control person from time to time, including documentation as necessary, consumer reports on Merchant and such beneficial owners and designated control person, including information relative to criminal history, or any other information necessary to comply with the requirements under Applicable Law and Rules and Sanctions, including Canadian anti-money laundering laws. Merchant authorizes and instructs Toast to share any such information with Payment Provider.

4.6. Toast may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. Toast will not be liable for any such interruptions, delays, errors or bugs. Toast may contact Merchant in order to assist Toast with the Services and obtain information needed to identify and fix any errors. The Services do not function with every mobile device and may only be used on approved Toast Hardware. Toast may alter which Hardware is approved as compatible with the Services in Toast’s discretion from time to time, subject to reasonable notice.

4.7. Merchant will comply with the following requirements in connection with its use of the Services: (a) with respect to each Customer who requests the delivery of transaction receipts via text message or email, such Customer must individually enter his or her Customer Data in the appropriate space displayed on the applicable device; (b) Merchant and/or Employees are NOT permitted to add or modify any Customer Data (including but not limited to phone number and email address) on behalf of a Customer unless requested by the Customer; (c) any communications provided to Customers as part of the Services (e.g. marketing, enrolment in a loyalty program) who desire to receive marketing material, enrol in a loyalty program, or otherwise receive communications from Merchant as part of the Services, must have provided their contact information as part of the Services and have consented to these communications as required under the Applicable Law and Rules (d) Merchant and/or Employees are NOT permitted to add or modify a Customer's consent indication on his or her behalf unless specifically requested by Customer; (e) Merchant shall not send any communications, including transactional or commercial messages, to Customers in violation of Applicable Law and Rules, including without limitation, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 (as amended) and any implementing legislation or regulations including the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act (2003) and Canada's anti-spam legislation contained in An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced) (“CASL”); (f) if Merchant is located in Canada and its loyalty program includes points used by guests to purchase goods or services from Merchant, to the extent not disclosed by Toast, Merchant must (i) clearly disclose the terms and conditions of its loyalty program to its guests in-restaurant and/or on Merchant’s website, including the manner and rate at which loyalty points are accrued and redeemed, its right to amend the terms and conditions of the program and its right to terminate the loyalty program at any time, (ii) communicate changes to its loyalty program to its customers by SMS or email thirty (30) days before any changes to its loyalty program become effective to the extent Merchant elects to make changes to the manner and rate at which loyalty points are accrued and redeemed, and (iii) not terminate the points under such program by the passing of time alone unless the goods or services obtained through such points are, individually, worth less than $50 Canadian; (g) to the extent required by Applicable Law and Rules, if Merchant amends or terminates its loyalty program, Merchant will provide reasonable notice of such change or termination of its loyalty program to guests; and (h) to the extent required by Applicable Law and Rules, if Merchant terminates its loyalty program, Merchant will not reinstate its loyalty program within a year of such termination unless it has retained sufficient information to reinstate the points of any prior participant in its terminated program. Merchant agrees to send any communications, including transactional or commercial messages, to Customers in a manner consistent with the purposes for which the Customer has provided consent or has provided their information in a manner that complies with Applicable Law and Rules.

4.8 Where Toast or Payment Provider becomes aware of and/or receives any notice of a potential exposure to a fine or sanction from the Payment Networks related to Merchant’s behaviour, Merchant will, on first request, provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, including by engaging with the applicable Payment Network and consulting regularly with Toast regarding any alleged violation, notwithstanding all other rights and remedies of Toast in such situation as per the Agreement. If fines are applied for Merchant’s violations, Merchant shall fully indemnify and hold Toast harmless from any fines applied by the Payment Networks to the extent resulting from Merchant’s breach of the terms of this Agreement and related incurred reasonable legal and other costs. 

4.9. Merchant must ensure that they make written receipts available to Customers for any transaction greater than $15. Merchant may give Customers the option to receive or decline a written receipt.

5. Ownership: Merchant Data, Customer Data & Intellectual Property 

5.1. As between the parties, all Toast (and/or its licensors) rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, Services, and Professional Services, including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of Toast provided under the Agreement, is expressly intended to remain vested in Toast (and/or its licensors). Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns and, to the extent any such assignment cannot be made at present, will assign and transfer all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to Toast, and acknowledges that Toast is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in Toast’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Toast.

5.2. Merchant owns all Merchant Data. Merchant hereby grants to Toast a nonexclusive, royalty-free, fully paid up, perpetual and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Services including the development of potential offerings or other future Services under consideration by Toast (whether developed independently by Toast or through a third party). Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Law and Rules) of Merchant Data, the means by which Merchant Data is acquired, and any transfer and use of Merchant Data outside of the Services by Merchant or any third party authorized by Merchant. Merchant represents, warrants and covenants that it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by Toast in relation to the Services. Merchant will not upload or store any data or materials containing any such information in violation of this Section. To the extent Merchant Data constitutes Personal Information, the Parties’ respective obligations are set out in the Merchant Data Processing Addendum.

5.3 Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both Toast and Merchant will collect, store and use Customer Data. Merchant shall be solely responsible for compliance with its own legal obligations in relation to such collection, storage and use of Customer Data pursuant to all Applicable Law and Rules, including putting in place any additional controls (e.g., notice, consent) and governance in relation to such use. Each Party’s use of Customer Data shall be in compliance with the Applicable Law and Rules. To the extent Customer Data constitutes Personal Information, the Parties’ respective obligations are set out in the Merchant Data Processing Addendum.

5.4. Notwithstanding anything to the contrary in the Agreement, Toast may create anonymized or aggregated data from Merchant Data, Customer Data and Personal Information that does not identify Merchant, any of Customers or Employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across Toast, our Merchant customers and partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Hardware or Services, the development of new Services or Hardware or otherwise. Upon creation, as between Merchant and Toast, Toast shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to Merchant or restriction of any kind.

5.5. Merchant hereby grants Toast a nonexclusive, royalty free right and license to use and display Merchant’s Marks on its website, marketing collateral and other public disclosures, or to otherwise identify Merchant as a customer of Toast. Toast obtains no rights in the Merchant Marks except for the limited right described in this sub-Section 5.5, and Merchant retains all right, title and interest in and to the Merchant Marks. All use of the Merchant Marks by Toast will inure to Merchant.

5.6. Merchant agrees and acknowledges that any use or display by Merchant of a trademark or other mark owned by the Payment Network(s) shall comply with the rules and regulations issued by such Payment Network and shall cease use of and remove all such trademark(s) from display upon termination of this Agreement.

6. Billing and Payment

6.1. Merchant will pay all Fees and Card Related Fees set forth in each Order, including any document cross-referred to in that Order. All Fees and Card Related Fees are non-cancellable and non-refundable, except as otherwise expressly provided for herein. Merchant will pay all Fees and Card Related Fees in Canadian Dollars or in such other currency as agreed to in writing by the parties.

6.2. All Fees and Card Fees payable by Merchant to Toast pursuant to this Agreement do not include any value-added, sales, use, consumption, multi-staged, personal property, customs, excise, stamp, transfer, or similar taxes, duties, or charges, (collectively “Sales Taxes”) and all Sales Taxes are the responsibility and for the account of the Merchant. If Toast is required by law or by administration thereof to collect any applicable Sales Taxes from the Merchant, the Merchant shall pay such Sales Taxes to Toast concurrent with the payment of any consideration payable pursuant to this Agreement, unless the Merchant qualifies for an exemption from any such applicable Sales Taxes, in which case the Merchant shall, in lieu of payment of such applicable Sales Taxes to Toast, deliver to Toast such certificates, elections, or other documentation required by law or the administration thereof to substantiate and effect the exemption claimed by the Merchant.  Where Toast is not required by law or by administration thereof to collect applicable Sales Taxes, the Merchant shall pay such Sales Taxes directly to the appropriate taxing authority and shall provide evidence of such payment to Toast upon request.

6.3. Merchant’s Software subscription Fees to access and use the Services will remain unchanged during the Initial Term of this Agreement. However, Toast reserves the right to change any other Fees and, except as provided in Sections 6.4 through 6.6, Card Related Fees, upon thirty (30) days’ prior written notice to Merchant. Such notice will include the effective date of the change(s). Merchant’s continued use of the Services subsequent to any change in Fees or Card Related Fees, as applicable, will be deemed acceptance of such changes unless Merchant closes its Toast Account prior to the effective date of such change and ceases all access to and use of the Services and the Payment Provider Services. If Merchant does not accept such Fee and/or Card Related Fee change under this sub-Section 6.3, then Merchant may terminate this Agreement by providing Toast written notice prior to the effective date of such Fee and/or Card Related Fee change, and in such event the Early Termination Fee under sub-Section 8.4 shall not apply (other than the processing fee for Software financing), and Merchant shall only be liable to Toast for the payment of Fees and/or Card Related Fees for Services provided through the date of Merchant’s notice of termination.

6.4. In the case that there is: (a) an increase in Card Related Fees, made by the Payment Provider or the Payment Networks; (b) an introduction of a new Card Related Fee by the Payment Provider or the Payment Networks; or (c) if Merchant is an IC-Plus Merchant, a reduction in applicable interchange rates (as determined by the Payment Provider or the Payment Networks), then Toast, on behalf of the Payment Provider, will provide at least ninety (90) days prior written notice to any affected Merchant of such change. If such Merchant does not accept the increase in Card Related Fees or the introduction of a new Card Related Fee described in the notice provided under this sub-Section 6.4, then such Merchant may terminate this Agreement by providing Toast written notice within ninety (90) days of receiving notice of the increase in Card Related Fees or the introduction of a new Card Related Fee. Notwithstanding the forgoing, Toast will not be required to provide notice on the Payment Provider’s behalf where changes in the Card Related Fees are made in accordance with pre-determined fee schedules, provided that such schedules are included in Merchant’s contract with Toast or the Payment Provider, and the Merchant may not terminate this Agreement when changes are made in accordance with such pre-determined fee schedules. If Merchant is a Flat-Rate Merchant, such Merchant expressly acknowledges and agrees that the Flat Rate is a pre-determined fee schedule, the Flat Rate applies without regard to any increase or decrease in applicable interchange rates and, accordingly, notice of reduction thereof is not required under this sub-Section 6.4 and the termination right described in sub-Section 6.5 shall not apply to such Merchant. 

6.5. In addition to the above sub-Section 6.3, in the case that the Payment Provider (or Toast on behalf of the Payment Provider), does not pass the full savings from any reduction to Payment Networks’ posted interchange rates that are applicable to an IC-Plus Merchant, such IC-Plus Merchant has the right to terminate this Agreement by providing the Payment Provider, through Toast or otherwise, ninety (90) days’ notice of termination; provided that, to be valid, any such notice of termination must be provided within ninety (90) days of receiving notice of the interchange reduction.

6.6. If the Merchant provides a notice of termination in accordance with sub-Section 6.3 or 6.4 hereof, (a) the Early Termination Fee under sub-Section 8.4 shall not apply, (b) Merchant will not face any form of penalty, and (c) Merchant shall only be liable to Toast and Payment Provider for the payment of Card Related Fees for Services provided through the date of Merchant’s notice of termination. 

6.7. Merchant authorizes and instructs Toast to instruct Payment Provider on Merchant’s behalf to withhold from each Settlement any applicable Fees and Card Related Fees, other amounts pursuant to Annex A and any other amounts as agreed in any Order Form. Merchant shall ensure that any instructions provided to Toast in connection with this Agreement are complete, clear and accurate, and correctly reflect Merchant’s intent. Merchant acknowledges that Toast may rely on all instructions given to Toast by Merchant and relay any such instructions to Payment Provider. Merchant acknowledges and agrees that Payment Provider is authorized to withhold from each Settlement Chargebacks, Refunds, fines and/or other amounts pursuant to the Payment Provider Terms and Conditions, without limitation of Toast’s right to authorize Payment Provider to withhold any applicable Fees, and Card Related Fees, other amounts pursuant to Annex A and amounts as agreed in an Order Form. Without limitation of Toast’s other rights hereunder, Merchant acknowledges and agrees that, to the extent any Settlement is insufficient to cover any such withholdable amounts  Toast may withhold such amounts from any subsequent Settlement or may invoice Merchant separately for the balance thereof, which invoice is due and payable within five (5) days of it being issued to Merchant.

6.8. All amounts invoiced hereunder are due and payable as specified in the applicable Order, including any document cross-referred to in that Order. Unpaid Fees and unpaid Card Related Fees that are not the subject of a written good faith dispute are subject to a late payment interest charge of 1.5% per month (or 19.56% annually) on any outstanding balance, or the maximum permitted by Applicable Law and Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys’ fees and costs. Merchant authorizes and instructs Toast to instruct Payment Provider on its behalf to withhold such unpaid invoices, finance charges and expenses from the deposit of any Settlement under Section 6 of Annex A. Without prejudice to any right to set-off which Toast may be entitled to as a matter of law, Toast may set-off any amounts due to Merchant, including by instructing Payment Provider on Merchant’s behalf to set-off for Toast’s benefit amounts due to Merchant in respect of any Settlement, against any amounts owed or other liabilities of Merchant, now or at any time hereafter due, owing or incurred by Merchant to Toast under, in connection to, or pursuant to this Agreement.

6.9. If Merchant financed its original license of the Software during the Initial Term, then upon the first Renewal Term and for each Renewal Term thereafter, Merchant’s payment terms for Software Fees shall revert to billed monthly in advance, which Toast shall collect via PAD direct debit from the Merchant Bank Account.

7. Payment Processing

7.1. The Payment Provider Terms and Conditions are located at Schedule 1 to this Agreement. Certain other terms relevant to payment processing are set forth at Annex A. Note that as set out in Annex A, Toast is not considered by the parties to be a payment processor, and this Agreement does not contemplate the provision of payment processing by Toast. The Payment Provider shall be the sole provider of payment processing services to Merchant (as among Merchant, Toast and Payment Provider) as part of the Payment Provider Services under the Payment Provider Terms and Conditions.

8. Term and Termination; Suspension; Survival

8.1. The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of this Agreement. The initial term of an Order will commence upon the earlier of: (i) the Contract Start Date (as defined in the Order), or (ii) the Go-Live Date and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for remainder of the initial term outlined in the Order (the “Initial Term”). Thereafter, the term of this Agreement with respect to such applicable order(s) shall automatically renew for successive six (6) month periods (each a “Renewal Term”; collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”); provided, however, that any Renewal Term shall be subject to the terms of the then-current version of the Merchant Agreement as in effect on the date such Renewal Term commences and further provided that either party may terminate an Order, together with this Agreement with respect to such Order, by providing at least thirty (30) days’ written notice of its intent not to renew prior to the end of the then-current Term. Merchant hereby acknowledges and agrees that Merchant is responsible to review the Merchant Agreement for updates prior to the commencement of any such Renewal Term, and agrees that entering such Renewal Term confirms Merchant's consent to the terms of the Merchant Agreement as then in effect.

8.2. Toast may suspend Merchant's username and password, Toast Account and access to the Services, and/or may terminate the Agreement, and Merchant authorizes Toast to instruct the Payment Provider to suspend Merchant’s access to Merchant’s Payment Provider Account and access to the Payment Provider Services and/or to terminate the Payment Provider Terms and Conditions, upon written notice to Merchant in the event any of the following occur: (a) Merchant fails to make any payment due within thirty (30) days; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the Toast Account or Payment Services registration requirements, as determined in Toast’s sole discretion; (c) Toast determines that Merchant is incurring excessive Chargebacks, as a function of Merchant’s total number of Chargebacks and total number of Card transactions; (d) Merchant violates Sections 2, 4, 7 or 12 or any provision of the Merchant Data Processing Addendum; (e) the Payment Provider Terms and Conditions, or any agreement between Merchant and Payment Provider forming a part thereof, has been terminated for any reason or has otherwise expired and/or an event permitting a termination by Payment Provider under any such agreement occurs; (f) any agreement between Toast and Payment Provider pursuant to which Toast is authorized to provide access to the Payment Provider Services as “Marketplace” thereunder (as defined therein, or in a similar capacity) terminates or expires, (g) if (1) Toast determines in its discretion that any change to, clarification or interpretation by a regulatory authority or Payment Network of, or enactment of any Applicable Law and Rules, would render any portion of the Services illegal, otherwise have a material adverse effect upon the Services or a party, or pose unreasonable risk to Toast or (2) Toast is directed to terminate the Agreement or the Services by a regulatory authority, Payment Provider or a Payment Network or (h) for any reason upon ninety (90) days’ prior written notice to Merchant. As determined it its sole discretion, Toast, its Payment Provider, and/or one or more Payment Network(s) may terminate this Agreement immediately and without notice for any suspected issues that could potentially cause a violation of this Agreement, the Payment Network rules, any law or regulation, or may impose a potential security threat, data breach, fraud or other crime, or damage to the Payment Network(s).

8.3. In the event of a material breach of this Agreement by either party, the non-breaching party will have the right to terminate the applicable Order(s) and this Agreement for cause if such breach has not been cured within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach in reasonable detail and the remedy being sought. In the event Merchant terminates this Agreement due to Toast’s uncured breach, Merchant shall be entitled to a pro rata refund of any Software Fees paid for Services not delivered as of the date of termination, to the extent such Software Fees have been paid in advance.

8.4. By executing an Order and/or Toast Master Agreement, Merchant agrees to pay Toast all Software Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Locations indicated therein, and for the entire duration of the then-current Term. Unless otherwise agreed to by Toast, Merchant acknowledges and agrees that it may terminate this Agreement and any applicable Order(s) at any time during the Term, provided that Merchant shall remain responsible for payment of all Fees, plus applicable Taxes, and Card Related Fees as provided for Services provided by Toast, and any other amounts owed to Toast and/or the Payment Provider through the date of Termination. Additionally, Merchant shall incur and pay an early termination fee equal to the sum of (a) the remaining Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, (“Early Termination Fee”), and (b) any applicable processing fee related to Software financing.

8.5. Upon any termination or expiration of an Order and/or this Agreement, Merchant's right to access and use the Services covered by the applicable Order(s) will terminate. Upon any such termination or expiration, all Sections of this Agreement which by their nature should survive termination or expiration will survive, including without limitation, the following Sections: Section 18 (Definitions), Section 2.2, Section 4 (Usage Restrictions), Section 5 (Ownership; Merchant Data, Customer Data & Trademarks), rights to any payments of Fees, Card Related Fees or Settlements earned up to the date of termination, Section 9 (Disclaimer of Warranties), Section 10 (Limitation of Liability), Section 12 (Confidential Information), Section 14 (Arbitration), Section 15 (Notices) and Section 17 (General Provisions). If applicable, the Merchant Data Processing Addendum shall also survive such termination if and to the extent that Toast continues to process Personal Information on behalf of Merchant. Annex A shall survive termination or expiration of this Agreement to the extent necessary to effectuate any remedies of Toast following termination or expiration of this Agreement. Notwithstanding the foregoing, at Merchant's request if received within thirty (30) days of termination of the Order or Agreement for any reason other than termination by Toast for Merchant’s uncured material breach, to the extent Merchant is otherwise unable to access the information itself, Toast will permit Merchant to access the Services solely and exclusively to the extent necessary for Merchant to retrieve a copy of Merchant Data, Customer Data, and any other data, materials, and information collected by the Merchant as part of the Services and contained in Merchant’s Toast Account except for Card data. Merchant hereby authorizes Toast to notify Payment Provider of any termination or expiration of an Order and/or this Agreement. Subject to Annex A, Merchant acknowledges and agrees that Toast has no obligation to retain Merchant Data and that Toast will have the right to irretrievably delete and destroy Merchant Data after thirty (30) days following the termination of this Agreement. Merchant agrees it will continue to permit Toast access to the Merchant Bank Account until all amounts due under this Agreement are paid in full.

9. Representations; Disclaimer of Warranties

9.1. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.

9.2. Merchant represents, warrants and covenants to Toast that (a) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (b) the name identified by Merchant when Merchant registered with Toast is its legal name or business name under which it sells goods and/or services; and (c) the taxpayer identification number identified by Merchant is its legal taxpayer identification number.

9.3. Limited Warranty. Toast represents, warrants and covenants to Merchant that, during the Term, the Software Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by Toast to Merchant, as the same may be updated by Toast from time to time in the ordinary course of business (together the “Specifications”). Merchant’s sole and exclusive remedy for Toast’s breach of this limited warranty is limited to Toast correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Section 8.3 above. 

9.4. Toast does not warrant that the Payment Provider Services, which may permit Merchant to process payments on a compatible mobile device, will be compatible with Merchant’s mobile device or third-party carrier. Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with its mobile device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and Merchant is solely liable for the payment of all such carrier fees.

9.5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW AND RULES, TOAST AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE PAYMENT PROVIDER SERVICES AND THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND RULES 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 PAYMENT PROVIDER SERVICES OR THE RESULTS MERCHANT MAY OBTAIN BY USING THE SERVICES OR THE PAYMENT PROVIDER 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 OR THE PAYMENT PROVIDER SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES OR THE PAYMENT PROVIDER SERVICES WILL MEET MERCHANT'S REQUIREMENTS. MERCHANT ACKNOWLEDGES THAT NEITHER TOAST NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES AND THE PAYMENT PROVIDER SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. TOAST IS NOT RESPONSIBLE FOR ANY DELAYS, 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, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW AND RULES, THE SERVICES AND THE PAYMENT PROVIDER SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.

10. Limitation of Liability

10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES IN NO EVENT WILL TOAST BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF TOAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.

10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, TOAST’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO TOAST IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.

11. Indemnification

11.1. Toast Indemnification. Toast will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party claims brought against Merchant by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes the copyright or misappropriates the trade secret rights of such third party, and Toast will pay all costs (including reasonable attorneys’ fees) and damages finally awarded against Merchant by a court of competent jurisdiction as a result of any such claim or payable by Merchant pursuant to a settlement agreement to which Toast agrees in writing in settlement of such claim; provided, that Merchant (a) promptly gives written notice of the claim to Toast; (b) gives Toast sole control of the defence and settlement of the claim; and (c) provides to Toast, at Toast's cost, all reasonable assistance. If the Services become, or in Toast’s opinion are likely to become, the subject of an infringement or misappropriation claim, Toast may, at its option and expense, either (i) procure for Merchant the right to continue exercising the rights made available hereunder; (ii) replace or modify the Services so that they become non-infringing or non-misappropriating; or (iii) refund to Merchant the portion of subscription fees paid in advance by Merchant for any unused portion of the then-current term of the Services, if any, whereupon Toast may terminate this Agreement upon written notice to Merchant. Notwithstanding the foregoing, this Section 11.1 shall not apply to any infringement or misappropriation claims arising from (A) designs, specifications, or modifications originated or requested by Merchant; (B) the combination of the Hardware, Software, and/or Services with other equipment, software or products not supplied by Toast if such infringement or misappropriation would not have occurred but for such combination; (C) Merchant’s failure to install an update provided by Toast at no additional charge, where same would have avoided or mitigated such claim; (D) allegations of infringement made by a non-practicing entity; (E) the failure of Merchant to follow any instructions given by Toast to Merchant in relation to such claim, suit, action, or proceeding brought against Merchant, where the instruction would have avoided or mitigated the same; or (F) any claims that are attributable to Merchant’s gross negligence or wilful misconduct. This Section 11.1 represents the sole and exclusive remedy of Merchant and the entire liability and obligation of Toast with respect to infringement and misappropriation.

11.2. Merchant Indemnification. Merchant will indemnify, defend and hold harmless Toast and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities, fines imposed by the Payment Networks or by regulatory authorities, costs and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by Toast, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of (a) Merchant’s use of the Services or the Payment Provider Services, other than those attributable to Toast’s gross negligence or wilful misconduct, or for which Toast is responsible as set forth in Section 11.1 above; (b) Payment Provider’s processing activities on behalf of Merchant; (c) the business of Merchant; (d) any sales transaction conducted by Payment Provider on behalf of Merchant; (e) any non-compliance with any Applicable Law and Rules by Merchant or its Employees expressly including any claims by Payment Provider arising out of such non-compliance; (f) any non-compliance with Section 13 of this Agreement; (g) Merchant’s, or any Employees’, breach or non-performance of any provision of this Agreement; (h) Merchant’s or its Employee’s reliance on any report or other information generated through the Services or the Payment Provider Services; (i) any Tax assessment, or (j) any claims against Toast related to the use by Toast of any Merchant Data or any of Merchant’s intellectual property. 

12. Confidential Information

12.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business under this Agreement. For the avoidance of doubt, Toast’s Confidential Information includes the Services, Hardware, and Customer Data, and any information relating thereto. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information, in each case except as expressly permitted in Section 5, Section 7, the Merchant Data Processing Addendum, or under the Privacy Statement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that the Receiving Party can document (i) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (ii) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records.

12.2. Notwithstanding any provision of this Agreement to the contrary, either party may disclose the other party’s Confidential Information, in whole or in part (a) to its Representatives or potential Representatives who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential, consistent with the terms of this Agreement; (b) as required by law (in which case Merchant      shall, if permitted by Applicable Law and Rules, provide Toast with prior written notification thereof and the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure in each case to the extent permitted by applicable law); or (c) otherwise in accordance with Toast’s Privacy Statement. The Receiving Party will remain primarily responsible for any breach of this Section 12 by any of its Representatives with whom it shares the other party’s Confidential Information as permitted by this Section 12.2.

13. Data Privacy & Security

13.1. The parties acknowledge that the Personal Information of Merchant, Merchant’s Employees and Customers will be Processed as part of the Services. For the purposes of any Personal Information Processed under this Agreement, the terms of the Merchant Data Processing Addendum found at https://pos.toasttab.com/privacy/merchantdpa shall apply. The Merchant Data Processing Addendum forms part of and is incorporated into this Agreement by reference. Merchant agrees to post and maintain on its websites a consumer privacy policy describing the Personal Information Processed under this Agreement. 

13.2    Merchant acknowledges and understands that Payment Provider shall act as a Controller of Merchant’s Personal Information that is collected, Processed and retained as part of Payment Provider’s self-hosted on-boarding process. Toast will provide a web link for Merchant to use to complete Payment Provider’s on-boarding process. Payment Provider’s Privacy Statement (https://www.adyen.com/policies-and-disclaimer/privacy-policy) and Terms (https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms ) control this relationship and its on-boarding process, including the Processing of Personal Information.

13.3    Each party shall implement and maintain a written information security program embodying all appropriate technical, organizational and administrative security measures as part of the Services and each party’s compliance with their obligations under this Agreement. This obligation shall apply generally in addition to any security obligations imposed on the parties under this Agreement, including the Merchant Data Processing Addendum.

14. Arbitration

14.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Except where prohibited by Applicable Law and Rules, Merchant agrees that any and all disputes or claims that have arisen or may arise between Merchant and Toast, whether arising out of or relating to this Agreement or in connection with Merchant’s use of the Services or our websites, shall be resolved exclusively through confidential, final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement. Merchant agrees that, by agreeing to this Agreement, Merchant and Toast are each waiving the right to a trial by jury or to participate in a class action. Merchant’s rights will be determined by a neutral arbitrator, not a judge or jury. Subject to the provisions of Section 14.4 below, the forum and seat of the arbitration shall be Toronto, Ontario. The arbitration laws of the forum of the arbitration shall govern the procedure of any arbitration conducted under this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from commencing proceedings in a court for the sole purpose of obtaining a temporary restraining order or an interim or interlocutory injunction in aid of an arbitration conducted or to be conducted hereunder; provided that any other relief shall be pursued through arbitration pursuant to this Arbitration Agreement. In any event, any action, proceeding, or arbitration by Merchant against Toast pertaining to any dispute arising out of or relating to this Agreement or in connection with Merchant’s use of the Services or our websites must be commenced within one year after the loss or damage occurs. Every action or proceeding against Toast by Merchant arising from or relating to this Agreement or Merchant’s use of the Services or our websites is absolutely barred unless commenced within one year after the loss or damage occurs.

14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by applicable law, Merchant and Toast agree that each may bring claims against the other only on an individual basis and not as a representative plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant 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 favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

14.3. Pre-Arbitration Dispute Resolution. 

14.3.1. Toast is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by contacting Toast’s support team at Toast Central located at central.toasttab.com. If Toast’s support is unable to successfully resolve the concern, 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 Toast and Merchant do not resolve the claim or dispute, despite good faith attempts, within sixty (60) calendar days after the Notice is received, Merchant or Toast may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Toast or Merchant shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Merchant or Toast is entitled.

14.3.2. If, however, Merchant believes that the conduct of the Payment Provider or Toast is contrary to the Code of Conduct, then the Merchant may report the issue to the Payment Provider in accordance with the steps detailed here: https://www.adyen.com/platform/licenses/financial-consumer-agency-of-canada

14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the ADR Institute of Canada Rules (“ADRIC Rules”) in force at the time of commencement of arbitration, except as modified by this Arbitration Agreement. If there is any inconsistency between any term of the ADRIC 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 result in procedural unfairness in the arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, jurisdiction 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. The arbitrator’s award shall be final and binding upon Merchant and Toast and shall not be subject to any appeal. The hearings in any arbitration where the value of all claims or counterclaims cumulatively amount to less than CAD $100,000 will take place virtually unless Toast and Merchant agree otherwise or the arbitrator directs that the hearing be held in a different manner, including in person, to preserve procedural fairness. 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.

14.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the ADRIC Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the ADRIC Rules.

14.6. Confidentiality. Except as may be required by law, all aspects of the arbitration proceeding (including its existence), and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

14.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 14.2 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 14.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.

15. Notices

Except as provided in the Arbitration Agreement, Toast may give notice applicable to Toast's general customer base by means of a general notice on the Services portal, and notices specific to Merchant by e-mail to Merchant's address on record in Merchant’s Toast Account. Notices to Toast must be sent via registered mail, postage prepaid, return receipt requested, to Toast, Inc., 401 Park Drive, Suite 801, Boston, MA 02215, Attn: General Counsel.

16. Force Majeure

Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, epidemic, pandemic or any other similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events”. Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.

17. General Provisions

17.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the province of Ontario excluding its conflicts or choice of law provisions, procedural law, and controlling Canada federal law. Except as set forth in Section 14, the parties irrevocably attorn to the personal jurisdiction of and agree that the federal or provincial courts in the city of Toronto, Ontario shall have exclusive jurisdiction to hear and determine any dispute between them that is not subject to arbitration under Section 14. The Uniform Computer Information Transactions Act, and the United Nations Convention on the International Sale of Goods, shall not apply to this Agreement.

17.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement. The Section headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement. No joint venture, partnership, employment, or agency relationship exists between Toast and Merchant as a result of this Agreement or use of the Services.

17.3. Entire Agreement. This Agreement and all Order(s), together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties' entire understanding relating to the Services and the subject matter hereof and thereof, and supersede any prior or contemporaneous, conflicting, or additional communications, whether written or verbal, and will control over any different or additional terms of any non-Toast ordering document, and no terms included in any such purchase order or other non-Toast ordering document will apply to the Services or Hardware. This Agreement may be amended only by written agreement signed by the parties, except that Toast may modify this Agreement to comply with, and as a result of, amendments to Applicable Law and Rules or as otherwise expressly provided herein. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable, then such provision(s) will be deemed to be restated and construed to reflect the original intentions of the parties in accordance with Applicable Law and Rules with respect to the invalid or unenforceable provision(s), and with all other provisions of this Agreement remaining in full force and effect.

17.4. Assignment. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of the assets or shares of the assigning company related to this Agreement. Any purported assignment in violation of this Section 17.4 will be null and void and without force or effect. Notwithstanding the foregoing or anything to the contrary set forth herein, Merchant acknowledges and agrees that Payment Provider may delegate any of its obligations or assign any of its rights to Payment Provider and any such delegation or assignment shall be valid and effective and shall not be deemed a breach  of this Section 17.4. 

17.5. Electronic Signature. Signatures transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSign, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.

17.6. Representatives. Each party shall be primarily responsible for each of its respective Representatives’ compliance with this Agreement.

18. Definitions

“Agreement” means collectively: (i) this Merchant Agreement, (ii) the Toast Master Agreement (only if applicable), (iii) any Order(s) signed by the Merchant, (iv) the End User License Agreement, (v) the Privacy Statement, and any other exhibit, addendum, annex, schedule (except Schedule 1), or attachment to any of the foregoing that is incorporated by reference therein or herein.

“Applicable Data Protection Laws” has the meaning given to it in the Merchant Data Processing Addendum.

“Applicable Law and Rules” means all federal, provincial, state, territorial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to Merchant and/or Merchant’s business, including without limitation, (i) any applicable tax laws and regulations, (ii) all requirements of Canadian anti-money laundering laws, including the Criminal Code and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (“PCMLTA”) and laws applicable to Sanctions, (iii) Applicable Data Protection Laws, including the Personal Information Protection and Electronic Documents Act (“PIPEDA”) and all other provincial privacy laws, as well as laws applicable to information security, (iv) all applicable anti-spam laws, including CASL, (v) all applicable consumer protection laws applicable to the Merchant and the Merchant’s business, (vi) the then-current version of the Code of Conduct, and (vii) the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the Operating Regulations.

Merchant shall refer to the websites of the PCI-DSS and the Payment Networks for applicable PCI-DSS and Payment Network requirements, as may be updated from time to time, including:

“Card” has the meaning set forth in the Payment Provider Terms and Conditions. 

“Card Related Fees” means amounts in respect of Card processing rates and other amounts related to credit or debit card transactions as determined by Toast, the Payment Networks or Payment Provider, including Flat-Rates and Interchange-Plus Rates.

“Chargeback” has the meaning set forth in the Payment Provider Terms and Conditions. 

“Code of Conduct” means the Code of Conduct for the Credit and Debit Card Industry in Canada, as published by FCAC, and found at: https://www.canada.ca/en/financial-consumer-agency/services/industry/laws-regulations/credit-debit-code-conduct.html

“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and (ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to Recipient that contain, or are based on, in whole or in part, any of the information described in this definition.

“Controller” means the entity that determines as a legal person alone or jointly with others the purposes and means of the Processing of Personal Information. For the purposes of this Agreement, “Controller” includes similarly defined terms under the Applicable Data Protection Laws, including, but not limited to, a “Business.”

“Customers” refers to Merchant’s customers or guests.

“Customer Data” means data and information, which may include Personal Information, collected by Toast via the Services, such as when a Customer enters payment information, submits an online order, enrols in a loyalty program or requests a digital receipt, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) Card information; (iv) Customer purchase history; and (v) location information.

“Effective Date” means the date of last signature of an Order Form or Toast Master Agreement, as applicable.

“Employees” means Merchant’s employees, agents and contractors who are authorized to use the Services.

“End User License Agreement” or “EULA” means the additional terms of service applicable to Merchant’s and its Employees’ use of the Services, including without limitation, the Toast App, available at http://pos.toasttab.com/end-user-license-agreement

“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services, Professional Services and Hardware.

“Fees” means any fees agreed to between Merchant and Toast as outlined in an Order, including without limitation, fees for Software and Professional Services other than Card Related Fees.

“Flat Rate” means a flat-rate Card Related Fee structure described in the applicable Order Form pursuant to which Card Related Fees at any time for each Payment Network’s Cards or a combination or subset thereof (as particularized in the Order Form, the “Flat-Rate Category”) do not vary based on differences in or changes to the underlying interchange rates (and certain other fees) applicable to the individual Cards comprising such Flat-Rate Category, as such rates (and such other fees) may be determined by the Payment Networks, the Card issuer or the Payment Provider, as the case may be. For clarity, the Flat Rate may vary among different Payment Networks or among different Flat-Rate Categories, but will be the same for all Cards in the same Flat-Rate Category. 

“Flat-Rate Merchant” means a Merchant whose Order Form reflects a Flat Rate.

“Force Majeure Event” has the meaning ascribed to it in Section 16.

“Go-Live Date” means the actual date upon which Merchant begins using the Services and is capable of processing Card payments in a live production environment using the Payment Provider Services (if applicable).

“Hardware” means any terminal, tablet, kitchen display screen, switch, router, card, cable, wall mount, printer or other item of physical hardware, as made available by Toast, and purchased under an Order. For clarity, Hardware does not include the Payment Provider Terminals.

“IC-Plus Merchant” means a Merchant whose Order Form reflects an Interchange-Plus Rate.

“Intellectual Property Rights” means any and all rights under patent law, copyright law, database rights laws, industrial design law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.

“Interchange-Plus Rate” means a cost-plus Card Related Fee structure described in the applicable Order Form pursuant to which Card Related Fees at any time for each Card are calculated based on a mark-up to the underlying interchange rates (and certain other fees) applicable to such Card at such time, as such rates (and such other fees) may be determined by the Payment Networks, the Card issuer or the Payment Provider, as the case may be.

“Location(s)” means the actual number of locations for which Merchant is agreeing to purchase or license, as applicable, the Toast Hardware, Services and/or Professional Services, as reflected in an Order.

“Merchant” means the contracting entity listed on the applicable Order Form or Toast Master Agreement, as applicable.

“Merchant Bank Account” means the bank account (or accounts) Merchant designates for receipt or facilitation of Settlement and/or payment of Fees or Card Related Fees hereunder.

“Merchant Data” means any files, graphics, images, text, emails, data or other information submitted by Merchant in the course of using the Hardware and Services and/or collected by Toast, including without limitation Merchant’s name, address, contact information, Employee information, products, loyalty program information, logos, promotional information, advertisements, transaction details, intellectual property and other information or material submitted by Merchant to Toast through the Services, excluding Customer Data. Merchant data may include Personal Information, whether from Merchant’s Employees, existing customer information or otherwise.

“Merchant Data Processing Addendum” means the data processing addendum available at https://pos.toasttab.com/privacy/merchantdpa which is incorporated into and forms part of this Agreement, as updated by Toast from time to time.

“Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to Toast for use with the Services.

“Merchant’s Payment Provider Account” means the account of the Merchant established and held by Payment Provider in Merchant’s name on the Payment Provider Platform for holding amounts in respect of Settlement (among other amounts as may be agreed between Merchant and Payment Provider) but prior to the application of withholdings or the disbursement of Settlement to the Merchant Bank Account. 

“Operating Regulations” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Payment Networks as may be amended or supplemented over time, including but not limited to the PCI-DSS, Payment Application Data Security Standard (PA-DSS), the VISA Cardholder Information Security Program, the Visa Core Rules and Visa Product and Service Rules (“Visa Rules”) and the Mastercard Rules, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by a Card brand or Payment Network. Significant portions of the Operating Regulations are made available to the public at the following online websites:

“Order” or “Order Form” means any Toast ordering document (including any online order) specifying the Services, Hardware and Professional Services purchased, or licensed hereunder, as applicable, as mutually agreed to and accepted by Toast. The Order may also contain the merchant application and related data.

“Payment” means a “Transaction” as defined in the Payment Provider Terms and Conditions. 

“Payment Network” has the meaning ascribed to “Card Scheme” in the Payment Provider Terms and Conditions.

“Payment Provider” means one or more third party banks or other payment processing providers as Toast may designate from time to time with or without notice to Merchant. As of the Effective Date, the Payment Provider includes both Adyen Canada Ltd. (“Adyen CAN”) a company registered under company number C1239120 whose registered office is at Suite 2600, Three Bentall Centre, 595 Burrard Street, P.O. BOX 49314 Vancouver BC, V7X 1L3, Canada Adyen  and Adyen N.V. a company registered in Amsterdam under number 34259528 and having its seat at Simon Carmiggeltstraat 6-50, 1011 DJ in Amsterdam, the Netherlands and/or any of its local affiliates.

“Payment Provider Platform” means the Payment Provider payment processing and acquiring platform used by Payment Provider to provide the Payment Provider Services.

“Payment Provider Services” has the meaning ascribed to “Services” in the Payment Provider Terms and Conditions including, for avoidance of doubt, any services described in any agreement that forms a part of the Payment Provider Terms and Conditions. Payment Provider Services does not include the Services.

“Payment Provider Terminal” means a “Payment Terminal” as used in the Payment Provider Terminal Services. 

“Payment Provider Terms and Conditions” means the following agreements between Merchant and Payment Provider, each of which, besides item 5, the Canadian Merchant Addendum,  is available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms (including documents hyperlinked therein provided by Payment Provider), each of which is provided solely by Payment Provider and does not form part of this Agreement, and as each may be amended or updated from time to time by Payment Provider in accordance with its terms: 

  1. The general terms and conditions for the Payment Provider Services, a copy of which is included herewith at Schedule 1;
  2. The terms and conditions for a service allowing Settlement per sales day, a copy of which is included herewith at Appendix 1 to Schedule 1;
  3. The terms and conditions for prohibited and restricted products and services (the “Payment Provider Prohibited and Restricted Services and Products”), a copy of which is included herewith at Appendix 2 to Schedule 1; and
  4. The terms and conditions for payment terminals provided by Payment Provider (the “Payment Provider Terminal Services”), a copy of which is included herewith at Appendix 3 to Schedule 1.
  5. The Payment Provider merchant addendum for Canadian merchants (“Canadian Merchant Addendum”), a copy of which is included herewith at Appendix 4 to Schedule 1.

“Personal Information” means any information relating to an identified or identifiable individual or household. Personal Information may include, but is not limited to, a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses, and location-based information, but excludes aggregated or anonymized information. Personal Information shall include any information that constitutes “Personal Information” or “Personal Data” under the Applicable Data Protection Laws.

“Privacy Statement” means the then-current version of Toast’s Privacy Statement available at https://pos.toasttab.com/privacy

“Processor” has the meaning provided under the Merchant Data Processing Addendum.

“Process” or “Processing” means any operation or set of operations performed on Personal Information or sets of Personal Information, whether or not by automated means, including, but not limited to, the collection, access, use, alteration, disclosure, or deletion of Personal Information.

“Professional Services” means any implementation services and/or training provided by Toast to Merchant pursuant to an Order.

"Receiving Party" has the meaning ascribed to it in Section 12.

“Refund(s)” has the meaning set forth in the Payment Provider Terms and Conditions. 

“Representatives” means a party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), contractors and third-party service providers.

“Reserve” or “Reserve Account” means an amount of Merchant funds designated by Toast and/or Payment Provider that must be held and maintained by Toast and/or Payment Provider, or by Merchant if directed by Toast, in order to protect Toast or Payment Provider from risks related to Merchant’s acts or omissions as more fully described in Section 8 of Annex A.

“Sanctions” means any sanctions listed by the United Nations, European Union, Office of Foreign Assets Control of the United States Treasury Department or Canada as may be updated from time to time. 

“Services” means Toast’s websites, Software, the Toast Platform, Toast Apps, supported integrations with third parties, customer support, and the Payment Provider support services described in Annex A or any other current or future services offered by Toast. The Services do not include the Payment Provider Services.

“Settlement” has the meaning set forth in the Payment Provider Terms and Conditions. 

“Software” means Toast’s point-of-sale restaurant, hospitality and retail management system made available to Merchant via the Toast Platform, including both online and offline components, products, services, features, content, and updates related thereto. For clarity, Software does not include the “Software” as defined in the Payment Provider Terms and Conditions.

“Specifications” means the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by Toast to Merchant.

“Taxes” means taxes, levies, or duties imposed by taxing authorities.

“Term” shall have the meaning provided in Section 8.1.

“Toast Account” means Merchant’s account with Toast.

“Toast Platform” means Toast’s online and offline Software either installed on Hardware, or made available for download by Merchant online, that enables Employees and Customers to interface with, access and use the Services. The “Marketplace Platform” as defined in the Payment Provider Terms and Conditions is a component of the Toast Platform.

“Toast Apps” means, collectively, mobile applications made available by Toast as part of the Toast Services, for download by Merchants, Employees or Customers, as applicable, that enable Merchants, Employees and Customers to interact with, access and use the Services.

“Toast Master Agreement” means a master services agreement that Toast may enter into with select merchants that contains certain terms, conditions, and/or fees or other arrangements agreed upon by a particular merchant and Toast.

ANNEX A

Payment Provider Support Services

1. Payment Provider Relationship. Merchant acknowledges and agrees that:

a. Toast is not considered by the parties to be a payment processor, this Agreement does not contemplate the provision of payment processing by Toast, and Payment Provider shall be the sole provider of payment processing services to Merchant (as among Merchant, Toast and Payment Provider) as part of the Payment Provider Services under the Payment Provider Terms and Conditions. The parties intend that Marketplace will act as technological service provider supporting the provision by Payment Provider of the Payment Provider Services, without entering at any time into possession of the funds to be transferred, and accordingly, that Toast is not required to be registered as a money services business under the PCMLTA or the Money Services Business Act (Québec).

b. Toast is the “Marketplace” and the provider of the “Marketplace Services” as those terms are used in the Payment Provider Terms and Conditions. 

c. Merchant designates Toast as an authorised representative of Merchant towards Payment Provider with respect to the use by Merchant of the Payment Provider Services and as such Toast is authorised by Merchant to access and use the data of Merchant processed on the Payment Provider Platform. Merchant agrees that any notices, requests, requirements, demands, instructions, directions and any other communication from Payment Provider transmitted by Payment Provider to Merchant through the Toast Platform shall be deemed received by Merchant. Merchant hereby authorizes Marketplace to access any such communication or Payment data to provide support to Merchant at the level of individual Payments and to technically manage user settings of the Merchant with respect to the Payment Provider Services on Merchant’s behalf.

d. All activities performed by Toast with respect to Merchant on the Payment Provider Platform will be deemed to be performed by Toast as authorised representative of Merchant including, for example, any settings of Merchant configured by Toast on the Payment Provider Platform. Toast may treat any instruction Merchant provides to Toast to do or refrain from doing any activity as authorization to instruct Payment Provider on Merchant’s behalf to do or refrain from doing such activity, and any instruction relating to Merchant transmitted by Toast to Payment Provider contemplated hereunder shall be deemed to be authorized by Merchant and transmitted on Merchant’s behalf. All instructions or other communications contemplated by this Agreement or the Payment Provider Terms and Conditions that may or are required to be provided by Merchant to Toast or Payment Provider shall be provided through the Toast Platform, except to the extent expressly agreed otherwise by Toast or Payment Provider, as applicable. 

e. Merchant has taken notice of and accepts the terms and restrictions of each document referenced in the definition of Payment Provider Terms and Conditions (attached as Schedule 1) and has reviewed each such document, including (i) the general terms and conditions for the Payment Provider Services, a copy of which is included herewith at Schedule 1 and is available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms, (ii) the Payment Provider Prohibited and Restricted Services and Products, a copy of which is included herewith at Appendix 2 to Schedule 1 and is available at https://www.adyen.com/legal/list-restricted-prohibited and (iii) the Canadian Merchant Addendum, a copy of which is included herewith at at Appendix 4 to Schedule 1.

f. Merchant’s use of the Payment Provider Services is subject to approval by Payment Provider in its sole discretion and Merchant’s application to use the Payment Provider Services may be rejected as the result of the review of the application. 

g. Merchant will not use the Payment Provider Services for the sale of any product or service that:

i. violates any Applicable Law and Rules. 

ii. appears in the Payment Provider Prohibited and Restricted Services and Products (except if for products or services in the “restricted” category an express waiver is agreed by Payment Provider).

2. Exclusivity and Merchant Authorization. Merchant acknowledges that as a condition of this Agreement, Merchant agrees to utilize Toast in its capacity as the “Marketplace” under the Payment Provider Terms and Conditions as its exclusive provider of access to payment processing services. Merchant hereby authorizes Toast as its limited agent for the purpose of instructing Payment Provider on Merchant’s behalf to hold, receive and disburse funds on Merchant’s behalf and to access the Merchant Bank Account to effectuate payment to Toast of any applicable Fees, Card Related Fees, other amounts pursuant to Annex A and any other amounts as agreed in any Order Form, for Merchant to receive any Settlements, and for payment to Toast, or a third party, to the extent expressly directed by Merchant of any other amounts contracted for between Merchant and Toast or Merchant and such other third party, including, by way of example, in connection with a Hardware lease or a loan through the “Toast Capital Loan” program for which Toast or its affiliate may be a servicer. Merchant’s authorization permits Toast instruct Payment Provider on Merchant’s behalf to generate a tangible draft or an electronic funds transfer to process each Payment transaction that Merchant authorizes. Merchant’s authorization herein will remain in full force and effect during the Term.

3. Settlement Timing. Merchant acknowledges and agrees that Payment Provider will settle available Settlements to the Merchant Bank Account on the basis of either (i) payment triggers instructed by Merchant based on such triggers as Toast may make available or (ii) a preferred fixed regime (daily, weekly, monthly) instructed by Merchant based on such regimes as Toast may make available. It is Merchant’s responsibility to initiate Settlement of its payments in a timely manner through the Payment Provider Services accessed through the Services. Merchant acknowledges and agrees that Payment Provider is responsible for Settlement. Merchant’s failure to initiate Settlement of its payments in a timely manner may result in higher processing rates charged by the Payment Networks and Toast reserves the right to recoup such charges from Merchant, including by offsetting such amounts against Settlements. Merchant authorizes Toast to instruct Payment Provider to submit transactions to and receive Settlements from one or more Payment Networks, on Merchant’s behalf. Merchant shall ensure any information it has provided, including information regarding its Merchant Bank Account, is up to date at all times, shall notify Toast immediately of any changes thereto and authorizes and instructs Toast to share any such changes with Payment Provider. Notwithstanding the above, Settlement of funds for processed Payments may be delayed or withheld by the Payment Provider or Toast, in their reasonable discretion.

4. Aged Settlements. Merchant acknowledges and agrees that any Settlement funds to which Merchant is entitled must be paid out to the Merchant Bank Account within thirty (30) days. If Merchant fails to instruct Toast to instruct Payment Provider to pay out such funds within thirty (30) days and does not give proper justification satisfactory to Toast and Payment Provider for this (which could be justified because Merchant did not yet provide the goods or services sold to the Customer), Payment Provider is authorized to push, and Merchant authorizes Toast to instruct Payment Provider on its behalf to push, settlement of such aged funds to the Merchant Bank Account. 

5. Use and Return of Payment Provider Terminals. Merchant agrees that Merchant shall be solely responsible for operating and using the Payment Provider Terminals in compliance with Section 6 of the Payment Provider Terminal Services. Upon termination of this Agreement or the applicable Order Form, and/or in case the Payment Terminals will permanently no longer be used by Merchant, Merchant shall, as soon as reasonably possible return all affected Payment Terminals in its possession to Payment Provider or, at Toast’s direction, Toast, for proper disposal. 

6. Adjustments. If Merchant has not provided goods or services consistent with the Merchant Agreement and the Payment Provider Terms and Conditions with respect to a particular Transaction(s), Merchant authorizes Toast to, or to instruct Payment Provider on Merchant’s behalf to: (i) withhold Settlement and/or pay a Refund to any Customer from the Merchant Bank Account, (ii) adjust the Settlement due for any period to compensate Toast for any Chargebacks, calculation errors, Merchant employee fraudulent use, and any Refunds paid to Customers, whether or not related to the period on which such adjustment is made, or to offset against such Settlement any other claim Toast may have arising hereunder, as more fully set forth in Section 9 of this Annex A.

7. Investigations. Notwithstanding Section 9 of this Annex A, if Toast needs to conduct an investigation or resolve any pending dispute related to the Merchant Bank Account, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to defer payout or restrict access to Merchant’s funds for the entire time it takes for Toast to complete its investigation or resolve the dispute. Merchant also authorizes Toast to instruct Payment Provider on the Merchant’s behalf to defer payout or restrict access to Merchant funds as required by Applicable Law and Rules or court order, or if otherwise requested by law enforcement or government entity. Additionally, Merchant will assist Toast when requested, at Merchant’s expense, to investigate any of Merchant’s Payments processed through the Payment Provider Services. To that end, and in accordance with Section 10 below, Merchant permits Toast to share and authorizes Toast to instruct Payment Provider on Merchant’s behalf to share information about a Chargeback with Customer, Payment Provider, Customer’s financial institution and Merchant’s financial institution in order to investigate and/or mediate a Chargeback. Toast will request necessary information from Merchant to contest the Chargeback, and Merchant agrees to provide such information as promptly as possible and in accordance with any timing specified by Toast or as required under Applicable Law and Rules. If a Chargeback dispute is not resolved in Merchant’s favour by the Payment Network or issuing bank or Merchant chooses not to contest the Chargeback, Toast may instruct Payment Provider on Merchant’s behalf to recover the Chargeback amount and any associated fees as described in the Agreement. Merchant acknowledges that its failure to assist Toast in a timely manner when investigating a Payment, including providing necessary documentation within the time period specified in Toast’s request, may result in an irreversible Chargeback. Toast will charge a fee for mediating and/or investigating Chargeback disputes, in addition to any other Chargeback fee(s) set forth in an Order Form, if applicable. Additionally, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf not to authorize or settle any Payment that Merchant submits to Payment Provider if Toast reasonably believes that the Payment is in violation of any agreement between Toast or Payment Provider, on the one hand, and Merchant on the other, or exposes Merchant, other Toast users, Payment Provider or Toast to harm. Harm includes without limitation fraud, a violation of individual or proprietary rights and other criminal acts. If Toast reasonably suspects that Merchant’s Toast Account or Merchant Bank Account has been used for an unauthorized, illegal, or criminal purpose, Merchant gives Toast express authorization to share, or to instruct Payment Provider on Merchant’s behalf to share, information about Merchant, Merchant’s Toast Account and Merchant Bank Account, and any of Merchant’s transactions with law enforcement or regulatory authorities.

8. Merchant Bank Account Activity. Except as required by Applicable Law and Rules, Merchant is solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with the Merchant Bank Account and Merchant’s use of the Services or the Payment Services, and (b) reconciling all transactional information that is associated with Merchant Bank Account. If Merchant believes that there is an error or unauthorized transaction activity associated with the Merchant Bank Account, Merchant will contact Toast immediately.

9. Merchant Reserves. At any time and from time to time, Merchant authorizes Toast to, or to instruct Payment Provider on its behalf to: (i) temporarily suspend or delay payments to Merchant in accordance with the Merchant Agreement, (ii) designate an amount of Merchant funds that Toast or Payment Provider must maintain in order to protect against anticipated risks as described herein, and/or (iii) require that Merchant maintain a certain amount of funds in its Merchant Bank Account to secure the performance of its obligations under the Merchant Agreement. Toast, in its sole reasonable discretion, may require a Reserve for any reason, in order to protect Toast from potential losses or other risk associated with Chargebacks (or anticipated Chargebacks), excessive Refunds, liens, garnishments, credit risk based on Merchant’s processing history, or other indications of performance problems related to Merchant’s acts or omissions. The Reserve will be in an amount as reasonably determined by Toast and/or Payment Provider. The Reserve may be raised, reduced, or removed at any time by Toast, in its reasonable discretion, based on Merchant’s payment history, a credit review, the amount of any arbitration award or court judgment against Merchant in Toast's favor, or otherwise as Toast and/or Payment Provider may determine or require. If Merchant does not have sufficient funds in its Merchant Bank Account, Merchant authorizes Toast to fund, or to instruct Payment Provider on the Merchant’s behalf to fund, the Reserve from the Merchant Bank Account or any funding source associated with Merchant’s Toast Accounts, including any funds (a) transferred by Merchant, (b) due to Merchant, or (c) available in the Merchant Bank Account, or other payment instrument registered with Toast or Payment Provider. Merchant grants Toast a security interest in and lien on any and all funds held in any Reserve, and also authorizes Toast to, or to instruct Payment Provider on Merchant’s behalf to, make any withdrawals or debits from the Reserve, the Merchant Bank Account, or any bank account linked to any of Merchant’s Toast Accounts, without prior notice to Merchant, to collect amounts that Merchant owes Toast, and such authorization survives termination of this Agreement for so long as such amounts remain due and owing. Merchant will execute any additional documentation required for Toast to perfect its security interest in any funds in the Reserve. This security interest survives termination of this Agreement for as long as Toast holds funds in the Reserve. Any Reserve will be held by Toast for such period of time as is consistent with Toast’s liability for the potential risks described above, in accordance with Applicable Law and Rules. Toast and Payment Provider may (but are not required to) apply funds in the Reserve toward the satisfaction of any amounts which are or may become due from Merchant pursuant to this Merchant Agreement. Funds in the Reserve will not bear interest and may be commingled with other funds. Upon (i) satisfaction of all of Merchant’s obligations under this Merchant Agreement; and (ii) Merchant’s execution of documents reasonably requested by Toast and/or Payment Provider in connection with the return of any Reserve funds, Toast and/or Payment Provider will pay to Merchant any funds then remaining in the Reserve. Upon notice of termination of this Merchant Agreement, Toast and/or its Payment Provider may estimate the aggregate dollar amount of anticipated Chargebacks, Refunds, fines, fees, penalties, or other risks and the like that Toast and/or Payment Provider reasonably anticipates subsequent to termination, and Merchant agrees to immediately deposit such amount in its Merchant Bank Account, or Toast may withhold, or may instruct Payment Provider on Merchant’s behalf to withhold, such amount from Settlement funds in order to establish a Reserve pursuant to and governed by the terms and conditions of this Merchant Agreement.

10. Chargebacks. Merchant will not incur excessive Chargebacks. If Toast determines that Merchant is incurring excessive Chargebacks, Toast may, and Merchant authorizes Toast to, establish controls or conditions governing Merchant’s Toast Account, or to instruct Payment Provider on Merchant’s behalf to establish such controls or conditions governing Merchant’s Payment Provider Account, including without limitation, by (a) establishing new processing fees, (b) creating or instructing  Payment Provider on Merchant’s behalf to create a Reserve in accordance with Section 9 of this Annex A, (c) instructing Payment Provider on Merchant’s behalf to delay Settlement payouts, and/or (d) terminating this Agreement and/or any associated Order Form(s) or Toast Master Agreement(s), as applicable. Notwithstanding Section 9 of this Annex A, for any Payment that results in a Chargeback, Toast may instruct Payment Provider on Merchant’s behalf to withhold the Chargeback amount and any associated fees. Toast may deduct, and Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to deduct, the amount of any Chargeback and any associated Fees, Card Related Fees, fines, or penalties listed in each Order or assessed by a third party, from either Merchant’s Payment Provider Account or the Merchant Bank Account (including without limitation any Reserve), or any proceeds or amounts due to Merchant. If Merchant has pending Chargebacks, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to delay payouts to the Merchant Bank Account. Further, if Toast reasonably believes that a Chargeback is likely with respect to any disputed Payment, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to withhold the amount of the potential Chargeback from Settlements or other payments otherwise due to Merchant under the Agreement until such time that: (a) a Chargeback is assessed, in which case Toast may instruct Payment Provider on Merchant’s behalf to retain the funds; (b) the period of time under Applicable Law and Rules by which Customer may dispute the Payment has expired; or (c) Toast determines that a Chargeback on the transaction will not occur, in which case Toast will promptly instruct Payment Provider on Merchant’s behalf to release the withheld funds back to Merchant. If Toast is unable to recover funds related to a Chargeback for which Merchant is liable, Toast may instruct Payment Provider on Merchant’s behalf to deduct the full amount of the applicable Chargeback from the Merchant Bank Account in accordance with the Agreement or, if Toast is unable to do so, Merchant shall pay Toast promptly upon demand. Merchant will pay all costs and expenses, including without limitation attorneys' fees, other legal expenses, and handling fees incurred by or on behalf of Toast in connection with the collection of all Chargebacks and Toast Account or Merchant’s Payment Provider Account deficit balances that are unpaid by Merchant. The terms and conditions of this Section 10 will survive termination of this Agreement.

11. Dormant Account. If Merchant does not process Payments for an extended period of time, Merchant may have a balance in the Merchant’s Bank Account that is deemed “unclaimed” or “abandoned” under Applicable Law and Rules in certain Canadian provinces. If this occurs, Payment Provider or Toast on the Payment Provider’s behalf will provide Merchant with notice as required by Applicable Law and Rules and instructions for how to transfer the balance. If funds still remain in Merchant’s Bank Account, the Payment Provider will transfer such funds to the applicable provincial government as required by Applicable Law and Rules or, as permitted, to the Payment Provider.

12. Discounts. Merchants may provide discounts to Customers for different methods of payment (e.g. cash, Card). Merchants are also allowed (but are not required to) provide different discounts for each type of Card from a Payment Network.

13. Merchant Statements. The Merchant statement provided to Merchant by Toast must include the following information: (a) effective discount rate for each type of Card from a Payment Network; (b) interchange rates and, if applicable, all other rates charged to the Merchant by the Payment Provider; (c) the number and volume of transactions for each type of payment transaction; (d) the total amount of Card Related Fees applicable to each rate; and (e) details of each Card Related Fee and the Payment Network to which they relate. In the case that there is a change to the Card Related Fees as discussed under Sections 6.3 and 6.4 of the Agreement, the subsequent Merchant statement will clearly identify the change. 

14. Compliance. The Payment Networks require that Merchant and Toast comply with all Applicable Law and Rules. Applicable Law and Rules may prohibit or impose additional conditions or restrictions on Merchant, including without limitation assessing a surcharge for the use of a Card in connection with any transaction. Further, Toast may prohibit or otherwise restrict Merchant's ability to use the Services in connection with the sale of certain products or services, or certain transaction types, that Toast, or its payment provider, in its respective discretion deem to pose undue risk to Toast or its payment provider, as applicable. Without limitation of the foregoing, a list of certain prohibited or restricted transactions may be found at the Payment Provider Prohibited and Restricted Services and Products, a copy of which is included herewith at Appendix 2 to Schedule 1 and is available at https://www.adyen.com/legal/list-restricted-prohibited.

15. Errors. Toast will employ commercially reasonable efforts to rectify, or to cooperate with Payment Provider to rectify, payment processing errors that Merchant processes incorrectly if and when Merchant notifies Toast of such an error. Merchant’s failure to notify Toast of a payment processing error within thirty (30) days of when it first appears on Merchant’s electronic transaction history will be deemed a waiver of any right to amounts owed to Merchant for such error.


SCHEDULE 1 TO THE MERCHANT AGREEMENT

GENERAL TERMS AND CONDITIONS

FOR THE PAYMENT PROVIDER SERVICES


Adyen For Platforms Terms & Conditions

Effective from: September, 2018.

1. Definitions.  In these Terms & Conditions, the following definitions shall apply:

3D Secure. The “Three-Domain Secure” protocol developed by Visa International Inc. (Visa) branded as “Verified by Visa” and “MasterCard SecureCode” developed by MasterCard international Inc. (MasterCard), including successive versions thereof and any amendments thereto.

Acquirer / Acquiring Bank. A financial institution that is authorised by a Scheme Owner to enable the use of a Payment Methods by accepting Transactions from Merchants on behalf of the Scheme Owners, routing these to the Scheme Owners or Issuing Banks and collecting and settling the resulting funds to the Merchant.

Acquiring via Processor. Use of a Payment Method via Processor where Processor acts as the Acquirer or Processor contracts with the relevant third party Acquirer to enable the use by Merchant of such Payment Method.

Authorisation. The process whereby a shopper (or Merchant on shopper’s behalf) requests permission for a Payment Method to be used for a particular purchase of Merchant’s Service or Product.

Business Day. A day other than a Saturday or Sunday on which banks are open for business in The Netherlands.

Capture Period. The period in which an Authorised Transaction can be Captured. The Capture Period varies per Payment Method. 

Capturing. The confirmation by the Merchant to the Acquirer that a Transaction for which it received an Authorisation is to be executed and the Account of the shopper is to be actually charged for the Transaction.

Card. Any form of Credit Card or Debit Card, which may be used by a shopper to carry out a Transaction on such shopper’s Card account.

Card scheme. Visa, MasterCard or comparable parties providing Cards.

Card Verification Method / CVM Code. The 3- or 4-digit numeric code that is printed on a Card. This code is known as: for Visa: CVV2; for MasterCard: CVC2; for American Express: CID. Collectively referred to as CVM Code.

Cardholder. Any person who is issued a Card and possesses and uses a Card and, where required on the Card, whose signature appears on the Card as an authorised user.

Chargeback. A Transaction which is successfully charged back on request of the shopper or the Issuer pursuant to the relevant Scheme Rules resulting in a cancellation of a Transaction in respect of which a Merchant has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Merchant already received Settlement of the related funds, this results in the unconditional obligation for the Merchant to immediately return the Settled funds to Processor, to enable Processor to return such funds to the Scheme Owner or Acquirer.

Delivery Date. The date on which the complete Merchant Product and/or Merchant Service is delivered to the shopper who paid for the corresponding Transaction.

Fine. Any fine, uplifted service fee or other additional payment as imposed by the Scheme Owners and/or Acquirers to the Merchant and/or Processor, as a result of situations such as, but not limited to, breach of Scheme Rules by the Merchant or caused by the Merchant, excessive Fraud levels or excessive Chargeback levels.

Fraud Control Tool. The fraud control tool set made available by the Processor as part of the Services, which assigns a fraud score to Transactions indicating the likelihood of the Transaction being fraudulent and enables Marketplace (on behalf of the Merchant) to automatically reject Transaction based on threshold values set by Marketplace on behalf of the Merchant. 

Issuer / Issuing Bank. An institution that issues Payment Methods to the shopper and whose name appears on the Card or bank account statement as the Issuer or who enters into a contractual relationship with the shopper with respect to the Payment Method.

Marketplace. The marketplace offering the Marketplace Platform through which the Merchant connects with shoppers.

Marketplace Platform. The e-commerce platform made available by Marketplace for use by Merchant.

Merchant. The party entering into a Merchant Agreement with Processor and for which Processor processes Transactions related to the Merchant Service and Merchant Products of the Merchant.

Merchant Agreement. The terms agreed to in the application process as well as the terms of any documents referred to in the application process (such as these Terms and Conditions) that comprise the agreement entered into between Processor and the Merchant for the provision of the Services to Merchant, including all Schedules and other documents appended thereto by reference.

Merchant Product / Merchant Service. A product/service which the Merchant is selling and for which Transactions are processed.

Order Currency. The Currency in which the Transaction is originally offered to the shopper.

Payment Currency. The Currency in which a Transaction is processed.

Payment Details. The information which makes up a Transaction message which needs to be submitted to the Payment Interface to enable the processing of the Transaction by Processor and to perform fraud checks, including details regarding the Card, the shopper, relevant authentication details and the payment amount.

Payment Interface. An electronic connection method provided by Processor to the Merchant for providing the Payment Details for individual Transactions allowing Processor to provide its Services with respect thereto.

Payment Method. A method of enabling payments by shoppers to Merchants such as Cards, online and offline bank transfers and direct debits offered by the Scheme Owners.

Processor. Adyen N.V., a company registered in Amsterdam under number 34259528 and having its seat at Simon Carmiggeltstraat 6-50, 1011 DJ in Amsterdam, the Netherlands.

Refund. A (partial) reversal of a particular Transaction on the initiative or request of the Merchant, whereby the funds are reimbursed to the shopper.

Scheme Owner. The party offering and/or regulating the relevant Payment Method.

Scheme Rule. The collective set of bylaws, rules, regula¬tions, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which Merchant must comply when using the relevant Payment Method. Processor may via Marketplace as service make extracts and summaries of the Scheme Rules available to Merchant, but only the then current applicable Scheme Rules as issued by the relevant Scheme Owner are binding on Merchant. 

Service(s). The collective set of payment processing, fraud control, reconciliation, reporting, Settlement and other services as provided by Processor to the Merchant to enable the Merchant to use Payment Methods to receive payment from its shoppers.

Settlement. The payment of amounts owed by the Processor to the Merchant, owed with respect to settlements received by the Processor from Acquirers or Scheme Owners for Transactions validly processed for the Merchant, minus the amounts for Refund and Chargebacks, fees and the amounts needed to keep the Merchant Deposit on the then current Deposit Level. “Settle” and “Settled” shall have the corresponding meanings.

Software. The collective set of programs and data developed and/or operated by Processor as needed to provide the Service to its Merchants, including the Payment Interface.

Terms and Conditions. The current version of these terms and conditions of Processor.

Transaction. An Authorisation request of a shopper for a payment from the shopper to the Merchant submitted by Merchant to Processor. 

Uncompleted Order Amount. The total amount of Authorised, Captured and/or Settled Transactions for the Merchant on any point in time, for which the Merchant Products and/or Merchant Services have not been delivered to the relevant shoppers at that time and/or for which the return rights or order cancellation rights of the shopper under the terms and conditions of the Merchant and/or applicable law have not yet lapsed.

2. Description of Services. 

2.1 Payment Processing. Merchant will be using the Services via the Marketplace Platform. Marketplace is representing Merchant towards Processor with respect to Merchant’s use of the Services and Processor may assume that Marketplace is authorised and mandated by Merchant to use the Services, submit Transactions on behalf of the Merchant and in accordance with the Merchants’ permissions and instructions which Marketplace will obtain from the Merchants. The Merchant is obliged to ensure all data that Processor requests to be provided for a Transaction, including those needed for fraud checks, are provided. If the Merchant fails to provide the requested data with each Transaction, Processor may be forced under the Scheme Rules to suspend Transaction processing and/or Transactions may be refused by the relevant Scheme Owners or Acquirers. Processor may revise the required data needed to process Transactions from time to time by informing Merchant via Marketplace as needed to be able to process such Transaction and conduct fraud checks under applicable Scheme Rules. Marketplace is required to (i) access Transaction level data to provide support to Merchant at the level of individual Transactions and (ii) technically manage user settings of the Merchant with respect to the Services on Merchant’s behalf (e.g. 3D Secure, fraud control settings).

2.2 Merchant Registration and KYC check. In order to enable Processor to comply with anti-terrorism, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Scheme Owners and Acquirers, Merchant must when entering into the Merchant Agreement and thereafter on Processor’s first request provide certain information about itself and its activities (the “Registration Information”). Merchant warrants unconditionally that all Registration Information it provides is correct and up to date. Merchant will provide Processor with at least 3 Business Days prior written notice via Marketplace of any change of the Registration Information. Merchant will on first request from Processor provide such additional information and supporting documentation as Processor may reasonably determine to need to ensure compliance with applicable laws and regulations and Scheme Owner and Acquirer KYC requirements. Merchant agrees that Processor may run further checks on Merchant’s identity, creditworthiness and background by contacting and consulting relevant registries, government authorities and Merchant relations. Processor will process Merchant’s Registration Information in accordance with its Privacy Statement (available on www.adyen.com). Processor’s acceptance of Merchant as user of the Services and the relevant Payment Methods is strictly personal and limited to the use by Merchant of the Services for payment of Merchant’s own products and services. Merchant may not use the Services to facilitate the payment for products or services sold by third parties and therefor may not resell the Services to third parties. Merchant shall only use the Services in the pursuit of its trade, business, craft or profession. Support for each Payment Method is subject to acceptance by the relevant Scheme Owner or Acquirer used by the Scheme Owner, which such Acquirer or Scheme Owner may withhold or withdraw in its discretion at any time. Merchant hereby authorizes Processor to submit Registration Information received from Merchant to the relevant Scheme Owners and Acquirers to obtain permission for providing access to their Payment Methods for Merchant.

2.3 Payment Method Support. Supported Payment Methods as part of the Services may change from time to time. Processor will give at least 1 month notice (through the Marketplace) of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. Processor will use its reasonable endeavours to offer an alternative for any discontinued Payment Method to the Merchant. Merchant understands that Acquirers and/or Scheme Owners might cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Processor may be forced to block Merchant from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquirer and/or Scheme Owner. Where possible Processor will use its reasonable efforts to give Merchant prior notice (through the Marketplace) of any such change or cancellation with respect to a Payment Method. 

2.4 3D Secure. Processor will as part of the Services support 3D Secure authentication where supported by the relevant Scheme Owner and/or third party Acquirer.

2.5 Payment Currency. Processor will have the right to offer the shopper the option to use a different currency than the Order Currency, in which case the Merchant will still always receive Settlement of the Transaction amount in the Order Currency (except in case another currency is agreed or the Merchant does not make a bank account available for Settlement in the Order Currency).

2.6 Fraud Control. All Transactions processed as part of the Services will be screened by the Processor’s Fraud Control Tool, which performs a number of checks on a Transaction and attaches a resulting total score to the Transaction, which represents the likelihood of the Transaction being fraudulent. The Fraud Control Tool does not guarantee the prevention of fraudulent transactions, nor against resulting Chargebacks or Fines. Regardless of the resulting total score, Transactions may be fraudulent or nonfraudulent. Marketplace will technically manage the settings of the Fraud Control Tool on behalf of the Merchant. In addition, Processor reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.

2.7 Settlements. Funds from the shopper charged for the validly processed Transactions of the Merchant (which are Acquired via Processor) are settled by the relevant Acquirer or the Scheme Owner to the account(s) held by the Processor. The funds Processor receives from payment service users or via another payment service provider and held in the payment processing account(s) by the Processor are safeguarded in accordance with the safeguarding requirements of The Dutch Central Bank (De Nederlandsche Bank). Processor will subsequently settle received funds directly to Merchant - withholding from the received funds the fees agreed between Marketplace and Merchant – who is the creditor of the received funds and holds sole power of disposition over such funds. The settlement is based on the binding Merchants’ settlement instructions which are submitted by Marketplace on behalf of the Merchant via Marketplace Platform. Marketplace is under no circumstances entitled to make any individual instructions towards Processor regarding the settlement of the funds. Processor is only obliged to provide Settlement of Transactions for which it has received settlement(s) by the Acquirer or the Scheme Owner. It is Merchant's responsibility to evaluate if the conditions imposed by the Payment Methods for settlement (as communicated from time to time by through the Marketplace) are acceptable to the Merchant. This is specifically relevant for certain Payment Methods that are not monitored and regulated by governmental financial services authorities, such as but not limited to non-Card Scheme related prepaid cards and SMS and IVR payments. Merchant understands and agrees that Processor will not compensate Merchant for late or non-performance, insolvency or bankruptcy of the Acquirer or Scheme Owner due to which Merchant receives late Settlement or no Settlement at all for processed Transactions. The Processor reserves the right to withhold Settlement of Transactions if they are Captured, but suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by Processor and/or the relevant Acquirer and/or Scheme Owner, until satisfactory completion of Processor's investigation, that of the relevant Acquirer or Scheme Owner or that of a third party nominated by any of these parties. Merchant will give its full co-operation to any such investigation. No interest will be due over amounts held by the Processor prior to Settlement of such funds to the Merchant, except in case Settlement is delayed for more than 30 days due to the intent or gross negligence of Processor. In such case interest will be due by Processor over the late Settled amount at the rate of the 3 month EURIBOR rate +2%.

2.8 Required Data. Merchant shall from time to time on the first request of Processor provide all required information regarding the then current actual or expected Delivery Dates for processed Transactions and estimates for the average time between Transaction Authorisation and the related Delivery Date. Further, Merchant shall provide Processor on its first request with all requested information on Merchant’s then current ability to provide the Merchant Products and Services it sells by means of the Services, its financial status, solvability and liquidity. 

2.9 Merchant Obligations and Restrictions. Merchant may only use the Services for payment of those Merchant Products and Services which Merchant agreed with Marketplace to be offered through the Marketplace Platform. The Merchant shall not use the Services for the payment of Merchant Products and/or Merchant Services (i) where it is illegal to offer or provide these to or from the relevant country and/or (ii) which are stated in Processor's Prohibited and Restricted Products and Services List. This list may be updated in Processor’s discretion where needed to ensure legal compliance, compliance to Scheme Rules, prevent high levels of Chargebacks and/or to reduce exposure to potentially fraudulent or illegal transactions. Merchant will be informed of such updates by Marketplace. Where a published change affects a significant portion of the Merchant’s Product or Services, Merchant may terminate the Merchant Agreement by giving written notice to Processor (via Marketplace). Processors´ acceptance of Merchant as customer should not be interpreted as an advice or opinion of Processor as to the legality of Merchant’s Products and Services and/or of Merchant’s intended use of the Services therefore. The Services of Processor should not be used (and Transactions may not be submitted for processing) for prepaying Merchant Products and Services for which the Delivery Date is in part or in whole more than 12 months after the date the Transaction is submitted for processing. This can make Transactions more likely to be subject to Chargebacks.

2.10 WARNING – Fines Scheme Owners. For violations of certain key requirements under the Scheme Rules by Merchants, some Scheme Owners (and in particular the Card Schemes) can levy significant Fines. The Scheme Owners do this to protect the shoppers, Merchants and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Scheme Rules which are subject to such Fines: (i) using the Payment Method for other Merchant Products and Services than for which the Merchant received express authorisation to use it for; (ii) using the Payment Method for Merchant Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Merchant Products and Services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorisation for Merchant to use a Payment Method is strictly personal); (v) percentage of Transactions of a Merchant which is subject to a Chargeback is above the applicable acceptable level (vi) breaches of security and confidentiality obligations with respect to Payment Details (see clauses 4.1 and 4.3  for more information on this); (vii) fraudulent, misleading activities of which shoppers are the victim. Merchant is strongly advised to regularly review the then current Scheme Rules (made available via the Marketplace) and relevant changes to applicable laws as applicable to its Merchant Products and Services and business practices to ensure compliance to applicable Scheme Rules. Where Merchant finds the Scheme Rules (including Fine possibility) to be unacceptable, Merchant is free at any point in time to stop using the relevant Payment Method (the Scheme Rules and these terms remain applicable to previously processed Transactions for Merchant). Where Processor becomes aware of and/or receives any notice of a potential exposure to a Fine related to any Merchant behaviour, Merchant will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Processor in such situation as per these Terms and Conditions. Where possible Processor will share relevant feedback received by Merchant with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer / Scheme Owner.

2.11 Taxes. Merchant agrees to defend, hold harmless and indemnify Processor from and against any VAT, turnover and other taxes or levies including penalties, interests, surcharges ("Taxes") due on any product or service of Merchant or Marketplace (including but not limited to any Transactions, Merchant Products and Merchant Services) and costs or damages related to such Taxes. Merchant shall (i) apply all reasonable efforts to ensure that Processor cannot be held liable for any Taxes and costs or damages related to such Taxes, (ii) shall promptly inform Processor of any such liability and (iii) shall provide Processor with all relevant information and documentation in that respect. Furthermore, Merchant and Marketplace shall be jointly and severally liable towards Processor for any such Taxes and costs or damages related to such Taxes.

3. Set-Off.

3.1 Without prejudice to any right to set-off which Processor may be entitled to as a matter of law, Processor may set-off any amounts due to the Merchant against any amounts owed or other liabilities of the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to Processor under, in connection to, or pursuant to the Terms and Conditions and/or the Merchant Agreement.

4. Integration.

4.1 Integration via Partner. Merchant will integrate with the Payment Interface of Processor via the systems of Marketplace. Merchant shall set up its integration with the Payment Interface of Processor with the assistance of Marketplace as agreed between Merchant and Marketplace. Processor is not responsible for such integration but will ensure the Payment Interface is available for use by Marketplace for such purpose and will where needed provide second line support for such integration via Marketplace.

4.2 Changes to Software. Processor reserves the right to change or amend the Software and the interface to it at any time, to provide the Merchant with a new version thereof, and/or to change the functionalities and characteristics of the Software. No changes will be implemented by Processor which materially reduce functionality of the Services which was explicitly committed to be provided under the Merchant Agreement, except where this is made necessary by: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Scheme Rules, (iii) need for increased security due to security risks identified by Processor or (iv) other reasonable grounds which warrant the reduction of functionality. If Merchant is significantly impacted by a material reduction of functionality due to a change in the Software, it may terminate the Merchant Agreement by giving written notice to Processor within 1 month after Processor announced the change.

4.3 Security of Payment Details. Merchant guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are provided by the shopper for payments to be processed via the Services. This rule is imposed by the Scheme Owners to protect shoppers against misuse of their Payment Details (like credit card numbers) and is strictly enforced by the Scheme Owners, and a violation of this rule can lead to the application of high Fines by the Schemes Owners. If Processor has reason to believe that Merchant is copying, capturing or intercepting Payment Details, Processor has the right to suspend processing of Transactions and Settlement. Merchant shall fully indemnify and hold Processor harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Processor incurs as a result of Merchant’s breach of this obligation.

5. Merchant Communications.

5.1 All first line communications with the Merchant regarding the use of the Services will run through Marketplace. Via the same communication channel, Processor will also inform Merchants of relevant changes in applicable Scheme Rules, financial laws and regulations.

6. Service Legal Agreement.

6.1 Uptime commitment payment interface. The Payment Interface is the part of the Processor’s payment platform which handles the processing of Transactions on the moment the shopper initiates a payment to Merchant. Marketplace will connect Merchant to Payment Interface and Merchant will submit Transactions via this Payment Interface. Processor commits to use all commercially reasonable efforts and to setup its systems in a manner to enable an average minimum uptime of 99.9% (measured on a monthly basis) of the Payment Interface, to receive Transaction requests, excluding from uptime calculation downtime of the Payment Interface caused by acts or omissions of Merchant, Acquirers, Marketplace or Scheme Owners, changes implemented on specific Merchant request, general internet failures, failures of individual Payment Methods or force majeure. Merchant is obliged to immediately notify Processor via Marketplace of any downtime of the Payment Interface which it experiences and to provide all reasonably requested co-operation in investigating and resolving any such downtime. Processor uses all reasonable efforts to avoid having to take the Payment Interface offline for executing planned maintenance. Should under exceptional circumstances such maintenance nevertheless proves necessary, Processor will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential Transactions for all its Merchants. Should under emergency situations (e.g. in case of force majeure event or terrorist attack) unplanned maintenance be necessary to the Payment Interface necessitating it to be taken offline, Processor will use all available resources to keep the required downtime to the absolute minimum.

6.2 Security and Compliance. Processor shall take reasonable measures to provide a secure payment system and shall keep its systems used to provide the Services certified in accordance with the PCI-DSS security standards.

7. Chargebacks and Refunds.

7.1 Chargebacks. Merchant shall take all reasonable steps to ensure that the Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the shopper, to avoid any Chargebacks. In case Processor has reasons to suspect that Merchant is not delivering its Merchant Services or Merchant Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Processor has reason to suspect that the Merchant Products or Merchant Services for which Processor processes Transactions are based on fraud, likely to cause high Chargeback volumes and/or illegal, Processor has the right to suspend Settlement of all related Transactions and/or block Authorisations therefor until Processor has been given assurances to its satisfaction that the relevant Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the shopper.

7.2 Refunds. Refunds will be charged as a Transaction by Processor and a Refund fee can be applied by Processor after giving prior notice to Merchant, if manual intervention is needed or additional costs are incurred by Processor to process such Refund. Processor will not execute a Refund (meaning the relevant sum will not be returned by Processor to the relevant shopper, directly or via the relevant Acquirer / Scheme Owner) in case the funds for this cannot be subtracted from the next Settlement or are not funded otherwise. Refunds are not funded by Processor from its own means.

8. Property Rights.

8.1 The property rights in the Software and other materials and all other intellectual property rights related to the Services are owned by Processor and its licensors. The Merchant Agreement does not transfer any intellectual property rights with respect thereto and only provides Merchant a limited, non-exclusive and nontransferable license to use the Software and all other materials made available by Processor solely for the purpose of using the Services in accordance with these terms and the applicable usage instructions communicated to Merchant via the Processor website from time to time.

9. Confidentiality. 

9.1 Confidentiality. All information relating to the Merchant or to Adyen and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content, is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. Merchant acknowledges that the terms of the Merchant Agreement and any information provided by Adyen on its Services (including communications from Adyen’s support functions) are Confidential Information. Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular: 

  • to share Confidential Information solely with personnel and representatives of the parties (including Marketplace) which have a need to have access to such information in order to exercise rights and obligations under the Merchant Agreement; and 
  • to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Processor where necessary to perform the Services.

The obligation to maintain confidentiality does not apply to information:

  • available to the general public; 
  • disclosed to one of the parties by a third party without any obligation of confidentiality; 
  • already in the possession of or known to one of the parties at the time of disclosure; 
  • developed independently of the Confidential Information by the other party; or 
  • if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information. The obligation of confidentiality as described in this clause shall remain in effect also following the termination of the Merchant Agreement, regardless of the grounds for termination. 

The following data is to be considered confidential, without need for special mention: 

  • all financial data; 
  • any agreed Merchant specific terms and conditions in the Merchant Agreement, if applicable; and 
  • all user manuals, guides and any Software relating to Adyen’s products and services.

9.2 Privacy. Where Processor processes personal data while performing the Services they will act as data processor under the direction and responsibility of the Merchant and/or Marketplace in accordance with EU General Data Protection Regulation 2016/679, including any successor thereof, and applicable Dutch privacy laws. Merchant will comply with the personal data protection laws of the Merchant’s country of origin and of those countries in which the Merchant offers its goods and/or services from time to time, in particular when processing and sending personal data to Processor in the context of using the Services and submitting transactions. Both Processor and Merchant shall implement appropriate measures to protect personal data against misuse. Processor shall not use personal data processed by Processor for Merchant under the Merchant Agreement for any other purpose then providing the Services and complying with applicable laws and Scheme Rules.

9.3 Compliance. The Merchant’s use of the Hosted Payment Page is PCI compliant under Processor's PCI DSS certification for the Hosted Payment Pages subject to Merchant complying to these Terms and Conditions.

9.4 Use of Services. In accordance with Dutch laws on hacking and computer crime, the Merchant shall only use the Services for the purposes as agreed herein and shall specifically not perform or allow to be performed any actions detrimental to the security or performance of the Services without Processor’s prior written consent.

10. Duration and Cancellation. 

10.1 Duration. Except where explicitly agreed otherwise in the Merchant Agreement, the Merchant Agreement shall be entered into for an indefinite period until it is terminated by either party by giving at least 2 months’ written notice to the other party. Such notices may be given via Marketplace by either party.

10.2 Termination. Merchant has the right to terminate the Merchant Agreement immediately if: 

  • The Service availability in any given calendar month is less than 95%; and/or 
  • The SLA commitments in clause 6 are not met during 3 consecutive months.

Processor has the right to terminate the Merchant Agreement and/or stop processing or Settlement of Transactions for Merchant immediately in part or in whole if: 

  • The provision of Merchant's Services/Products for which Processor provides the Service is reasonable suspected by Processor to be in breach with legislation in the country where the Merchant Services/Products are offered from or to; 
  • Merchant has materially changed the type of Merchant Services/Products without obtaining Processor’s prior written permission to use the Services for the new or changed types of Merchant Services/Products; 
  • Merchant materially breaches any of the terms of the Merchant Agreement, the Scheme Rules and/or applicable laws in the context of using the Services; 
  • An Acquirer or Scheme Owner demands Processor to stop or suspend providing Services to Merchant with respect to Payment Methods made available by such Acquirer or Scheme Owner to Processor; 
  • Processor finds there are clear indications that Merchant is or is likely to become insolvent and/or unable to provide a material part of the Merchant Products/Services; or 
  • The agreement the Merchant has entered into with Marketplace for the use of the services of Marketplace has been terminated or has otherwise expired and/or an event permitting a termination by Marketplace under any such agreement occurs.

11. Liability.

11.1 No Liability for Third Parties. Processor shall only be liable for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Scheme Owners and Acquirers or for events or activities originating outside the systems of Processor (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Processor.

11.2 Limitation of Liability. The total liability of Processor under the Merchant Agreement towards Merchant for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to 10,000 euro. Processor shall not be liable for any special, indirect, or consequential damages (including any loss of profit, business, contracts, revenues or anticipated savings, or damage to good name) as a result of breach of contract, tort or under any other legal theory. Neither Processor, Merchant nor any other party to the Merchant Agreement excludes or limits its liability under the Merchant Agreement for intent, gross negligence, death, fraud or personal injury.

12. Indemnification. 

If any claims for damages, costs and expenses are asserted against Merchant by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of Processor, Processor shall indemnify Merchant without delay from these third-party claims, including Merchants reasonable costs of its legal defence, and offer Merchant the necessary assistance in its legal defence. Merchant shall indemnify and hold Processor harmless from any claim (including legal fees) brought against Processor by any third party (expressly including Scheme Owners and Acquirers and their claims for payments of Fines) as a result of Merchant's breach of the terms of the Merchant Agreement, applicable laws and/or the Scheme Rules applying to the Payment Methods used by Merchant.

13. General Provisions.

13.1 Transfer. Processor shall be entitled, at any time, to assign, novate or otherwise transfer the Merchant Agreement to another company in the Processor Group, i.e., a company with at least 50% the same shareholders, without the prior consent of the Merchant by providing written notice to Merchant of such transfer.

13.2 Null provisions. In the event that any provision in the Merchant Agree¬ment (including these Terms and Conditions) is declared null and void or inapplicable, said provision shall be deemed non-existent, and all other provisions of the Merchant Agreement (including these Terms and Conditions) shall remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.

13.3 Entire Agreement. The Merchant Agreement contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Merchant Agreement shall be of any force or effect unless expressly reduced to writing and repeated in the Merchant Agreement, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Merchant Agreement, expressly excluded to the fullest extent permitted by law.

13.4 Changes to the Terms and Conditions. Processor may revise these Terms and Conditions from time to time by giving at least 30 days written notice to the Merchant via Marketplace. If the change has a material adverse impact on Merchant and Merchant does not agree to the change, Merchant may terminate the Merchant Agreement by giving at least one month written notice to Processor (such termination notice to be sent at the latest 60 days after Merchant received notice of the change). Merchant is not entitled to object to and shall not have the rights set out in this clause for any change which Processor implements in order to comply with applicable law, regulations or requirements imposed by the relevant Acquirers and/or Scheme Owners or financial regulators. For such imposed changes shorter notice periods may be applied by Processor as is need to comply with the relevant requirement.

13.5 Online Contracting – written confirmation. In case Merchant has concluded the Merchant Agreement with Processor via Marketplace’s website or via any other online means, Processor may at any time request that Merchant re-confirms its acceptance of the terms of the Merchant Agreement (including these Terms and Conditions) by means of a written document signed by an authorised representative of the Merchant. If Merchant does not comply with such request within 5 working days after receiving a request by Processor to do so (which request may be issued to Merchant via the contact email address submitted by Merchant when concluding the Merchant Agreement), Processor reserves the right to suspend part or all of the Services until Merchant has complied with such request.

13.6 Translations. The terms of the Merchant Agreement, including these Terms and Conditions are made available to you in English. Any other terms or disclosures made available to you regarding this Merchant Agreement in any non-English language do not form part of our agreement and are for informational purposes only.

13.7 Applicability of Payment Services Directive. Title 7B of Book 7 of the Dutch Civil Code (Burgerlijk Wetboek) and other laws and regulations implementing Directive (EU) 2015/2366 (“PSD2”) or its predecessor, Directive 2007/64/EC ("PSD"), are not applicable to the extent it is permitted to deviate from relevant provisions in relationships with non-consumers, in accordance with Article 38 and 61 PSD2 (or Article 30 and 41 PSD). Where Processor provides payment services for the Merchant within the European Economic Area ("EEA") and where the shopper's payment service provider is located in the EEA, the parties hereby agree and confirm in accordance with article 62(2) of PSD2 that the Merchant shall pay the charges levied by Processor and the shopper shall pay the charges levied by his payment service provider (i.e. the ‘SHA’ (shared) principle).

14. Settlement of Disputes.

14.1 Dispute handling. The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Merchant Agreement. This Article 14.1 is without prejudice to a party's right to seek interim relief against any other party (such as an injunction) through the competent courts to protect its rights and interests, or to enforce the obligations of any of the other parties.

14.2 Applicable law and jurisdiction. The Merchant Agreement and these Terms and Conditions are solely governed by Dutch law, excluding the Convention on Contracts for the International Sale of Goods. In the absence of an amicable agreement, any dispute relating to the validity, interpretation or fulfilment of the Merchant Agreement shall be submitted to the exclusive jurisdiction of the competent courts of Amsterdam the Netherlands.

APPENDIX 1 TO SCHEDULE 1 

TERMS AND CONDITIONS FOR A

SERVICE ALLOWING SETTLEMENT PER SALES DAY


Sales Day Payout – Terms of Service

These Terms of Service stipulate a Service allowing Settlement per sales day to Merchants of Adyen (“Sales Day Payout”). Accordingly, Adyen will Settle the Merchant’s daily transaction volume on the agreed Payout Day (as defined below). These Terms of Service will form a part of the Merchant Agreement between the Merchant and Adyen (“Merchant Agreement”) and also apply to any Merchant Affiliates. These Terms of Service will supplement and where relevant replace the related terms in the Merchant Agreement.

Adyen may update this page from time to time to reflect technical developments or other updates to the Sales Day Payout Service. If you wish to be notified of any such updates, you can subscribe to email updates at the bottom of this page. Last updated 13 April 2021.

1. Sales Day Payout Service.

1.1 Sales Day Payout.Sales Day Payout” is the payment of the Captured Volume to Merchant on the Payout Day, in accordance with the terms of these Terms of Service, in respect of which: 

  • the “Captured Volume” equals all amounts Captured on the Transaction Day for Transactions Acquired via Adyen for supported Payment Methods (as described in Clause 2.1.2 below); 
  • the “Transaction Day” is by default the period from 0:00 up to and including 23:59 hours in the time zone of the Merchant Account. Merchant may request Adyen to set up a different 24hour period as the Transaction Day; and 
  • the “Payout Day” is the agreed Business Day after the Transaction Day (e.g. T+2). Note: as a result, the Payout Day for weekend days will be the same day as the Payout Day for the preceding Friday. For example, on T+2 the Captured Volume for Friday, Saturday and Sunday will be paid out on Tuesday. As long as Sales Day Payout is activated, Adyen will (in deviation of the Settlement arrangements included in the Merchant Agreement) transfer the Captured Volume to Merchant on the Payout Day, irrespective of whether the funds are actually received by Adyen from the Acquirer or Scheme Owner. Such payout will be conditional upon the situations described in Clauses 2.3, 2.4 and 2.6 not occurring.

1.2 Payout Day. The default Payout Day for all Transactions on a Merchant Account shall be as follows: 

  • T+2 if at least 80% of the Transaction volume on a single Merchant Account is processed in (a combination of) AUD, CAD, EUR, GBP, NZD, RON, SEK or USD and these transactions are acquired in the country/region of the applicable currency;
  • T+5 if the Merchant Account is used for Acquiring Transactions in Japan; or
  • T+3 in all other cases. Merchant may request Adyen to delay the Payout Day for an individual Merchant Account (e.g. to achieve a consistent Payout Day across all Merchant Accounts).

1.3 Activation of Sales Day Payout.

1.3.1 Activation for Merchant and Merchant Affiliates. Activation of Sales Day Payout may be requested via the Adyen Customer Area for Merchant and any Merchant Affiliates, in each case activation is subject to Adyen’s approval. Upon approval, activation and the Payout Day for such Merchant Accounts will be confirmed immediately on the Customer Area or separately via email. Adyen will for any request in respect of Sales Day Payout (whether for activation, cancellation or otherwise) be entitled to rely on the user requesting activation being authorised to request such activation for Merchant or Merchant Affiliate, which activation shall be deemed a written addition to the Merchant Agreement as referred to in Clause 13.3 of the Adyen Terms and Conditions. Only in case activation is requested for Hong Kong, the relevant Merchant or Merchant Affiliate represents and warrants that it has a paid-up share capital of not less than HKD 1,000,000 or equivalent currency (freely convertible into HKD).

1.3.2 Transitional Period (not applicable for new Merchant Accounts). Merchant acknowledges that upon activation of Sales Day Payout for an existing Merchant Account, there will be a transitional period (usually the first week) during which payouts may still contain Settlements for Transactions Captured before the activation of Sales Day Payout. On top of the Sales Day Payout report, the original reporting will continue to be provided for those Transactions and Settlements during the transitional period.

1.4 Payout Specification and Reporting. Adyen will pay out to the Merchant on the Payout Day an amount equal to the Captured Volume, minus: 

(1) All amounts for which a Refund was initiated by Merchant on the Transaction Day and any fees due to Adyen related to such Refunds; and (2) All fees due to Adyen in respect of Transactions on the Transaction Day (excluding the fees included in (a) above or (c) below); and 

(3) The total balance of Chargebacks and Settlement Reversals (as defined below) at the Payout Day and any fees due to Adyen related to Chargebacks (“Chargeback Volume”); and 

(4) The total balance of other amounts due to Adyen at the Payout Day (“Other Adjustments”). Merchant can view and download a report on the Customer Area showing each of the above amounts for each Payout Day. 

1.5 Merchant’s right to switch to pass-through Settlement. Adyen also supports pass-through Settlement, where Adyen Settles every individual Transaction if and when the settlement funds are received by Adyen from the relevant Scheme Owner or Acquirer (as set out in Clause 2.8 (Settlement) of the Adyen Terms and Conditions). Merchant may at any time request Adyen to cancel Sales Day Payout and switch to such pass-through Settlement through the Customer Area or through Adyen Support. Without undue delay after receipt of such request, Adyen will switch the relevant Merchant Account(s) to pass-through Settlement and confirm completion of the switch to Merchant through the Customer Area or by separate email.

2. Sales Day Payout Conditions.

2.1 Supported Payment Methods.

2.1.1 Settlement through Adyen. Adyen supports Sales Day Payout only for Payment Methods contracted and settled through Adyen (i.e. Adyen needs to be in the money flow). Adyen may in the future also support Sales Day Payout for Payment Methods contracted by Merchant directly, but where Adyen has agreed to provide settlement and reconciliation support. If Merchant requests activation for such Payment Methods, after approval by Adyen:

  • Merchant will need to supply Adyen with the agreed cost rates and settlement timelines based on the direct contract between Merchant and the Payment Method before activation; and
  • Adyen will apply such supplied cost rates for Sales Day Payout and, on a monthly basis, apply a true-up based on the cost rates actually applied for that month. The outcome of this true-up (which may result in a credit or a debit) will be specified and deducted or added to the Settlement as Other Adjustments (as described in Clause 1.4); and 
  • If the settlement timelines for such Payment Method lead (or are expected to lead) to a delay in the Payout Day in accordance with Clause 2.4, Adyen will notify Merchant thereof before activation.

2.1.2 Exceptional Payment Methods. For certain Payment Methods where the relevant Acquirer or Scheme Owner structurally pays out numerous days later than the Payout Day or settles in an unpredictable manner (“Exceptional Payment Methods”), Sales Day Payout is not available. Exceptional Payment Methods will be Settled if and when the settlement funds are received by Adyen from the relevant Scheme Owner or Acquirer (as set out in Clause 2.8 (Settlement) of the Adyen Terms and Conditions). If Exceptional Payment Methods are processed on the same Merchant Account as supported Payment Methods for Sales Day Payout, the Captured Volume for a Transaction Day will be paid out on the Payout Day, while the Exceptional Payment Method Transactions will be paid out if and when the settlement funds for the relevant Transaction are received by Adyen. If the settlement speed by the Scheme Owners for a supported Payment Method used by Merchant deteriorates significantly, Adyen may also choose to qualify such Payment Methods as an Exceptional Payment Method by notifying Merchant. The list of supported Payment Methods is available at supported Payment Methods. All Payment Methods not on this list of Supported Payment Methods are Exceptional Payment Methods.

2.2 Blend fee pricing for certain Payment Methods. For certain Payment Methods (currently including CUP, Discover, Diners and JCB), the actual Interchange++ pricing for Transactions may not yet be known on the Payout Day. Therefore, Sales Day Payout will only be available for such Payment Methods if they are used on the basis of a “blend fee” pricing. If Merchant requests Adyen to activate Interchange++ pricing for such Payment Method, Merchant acknowledges that funds for such Payment Method will be Settled if and when the settlement funds are received by Adyen from the relevant Scheme Owner or Acquirer (as set out in Clause 2.8 (Settlement) of the Adyen Terms and Conditions).

2.3 No payment by Scheme Owner or Acquirer. If (i) there are objective indications that the relevant Acquirer or Scheme Owner has defaulted, is likely to default or indicates that it will not pay-out funds in relation to Merchant, or (ii) Adyen has not actually received the funds within 30 days after the Transaction Day, then Merchant will compensate Adyen for any funds already paid out on the Payout Day but not actually received by Adyen from the relevant Acquirer or Scheme Owner (“Settlement Reversal”). To the extent such Settlement Reversal is not compensated separately by Merchant, parties agree that Adyen may affect such Settlement Reversal by deducting from / setting off against the next Settlement to Merchant in accordance with Clause 3.7 (Payment) of the Adyen Terms and Conditions. In case when the funds are received by Adyen from the Acquirer or Scheme Owner thereafter, Adyen will settle the received funds to Merchant.

2.4 Payout Delays. If more than 25% of the Captured Volume on a Merchant Account consists of Payment Methods that structurally settle to Adyen later than the Payout Day, Adyen will have the right to accordingly delay the Payout Day by one or more Business Days. Adyen will promptly notify Merchant of such decision. This may, for example, happen in the following circumstances: 

(0) Change in Payment Methods mix. If the Merchant’s Payment Methods mix materially changes or Interregional settlement. 

(1) Interregional settlement. Payment Methods may have slower settlement times in case of shoppers with Cards issued in a currency region/country different from the Merchants' processing country. 

(2) Slower settlement by schemes. The settlement speed for a Payment Method deteriorates. In any case, if as a result of the actual settlement speed by Payment Methods, Adyen cannot facilitate the pay out for a single sales day due to insufficient funds on a Merchant Account Level, Adyen will have the right to delay the Payout Day. Adyen will promptly notify Merchant of such decision.

2.5 Negative Balance. If the amount to be paid out on the Payout Day in accordance with Clause 1.4 is negative, Adyen may in its discretion (i) transfer such negative balance to the immediately following Payout Day or (ii) exercise its set-off right or other rights in accordance with the terms of the Merchant Agreement. In the case of (i) above, the transferred negative balance will be included in the Other Adjustments of the next Payout Day.

2.6 Merchant Default. Merchant acknowledges and agrees that in case of Adyen finds there are clear indications that Merchant is, or is likely to become insolvent and/or unable to provide a material part of the Merchant's Products and/or Services, any Captured Volume may be set-off by Adyen against Adyen’s claims under the Merchant Agreement on Merchant instead of being paid out on the Payout Day as set out in these Terms of Service.

APPENDIX 2 TO SCHEDULE 1 

PAYMENT PROVIDER PROHIBITED AND

RESTRICTED SERVICES AND PRODUCTS


Prohibited and Restricted Products & Services 

Effective from January 11, 2021 

Our eligibility criteria:

To meet internal and external obligations, some industries may be prohibited or restricted from working with Adyen. This is based on a range of factors including but not limited to the following:

  • Local, national and international laws
  • Requirements of our payment partners (e.g. card networks)
  • Level of assessed risk (e.g. chargebacks, fraud)
  • Reputational impact to Adyen and cost aspects associated with this

APPENDIX 3 TO SCHEDULE 1

PAYMENT PROVIDER TERMINAL SERVICES 


Schedule Payment Terminal Services

Updated: December, 2018

1. Introduction

This document describes the following standard services Adyen provides to the Merchant with respect to Payment Terminals provided by Adyen to Merchant:

  • The sale of the Payment Terminals by Adyen to Merchant and related ordering procedure as set out in section 2 below; and
  • The support services provided by Adyen to Merchant in using the Payment Terminals which consist of the following two service components:
  • Terminal Replacement Services to replace defective Payment Terminals (see section 3 below); and
  • Support with respect to the software embedded in the Payment Terminals and the software made available by Adyen to enable Merchant (and its third-party service providers) to connect the Payment Terminals to third-party devices (see section 5 below).

The (first line) support responsibilities of Merchant are set out in section 5.3 below and the general responsibilities of Merchant regarding the handling of Payment Terminals are set out in section 6 below.

2. Payment Terminals

2.1 Available Payment Terminals and pricing

The sale price for Payment Terminals and accessories is as agreed in the Merchant Agreement or (for other models) as set out on the then current price list of Adyen, in each case unless other pricing is expressly separately agreed in writing per order between Adyen and Merchant. The current pricing of Payment Terminals and accessories is available on request. The sales price for the Payment Terminal includes the following:

  • Cables and initial supplies necessary to operate the Payment Terminal as specified in the product sheet of the Payment Terminal;
  • The following Payment Terminal preparation in an environment secured in accordance with applicable PCI DSS security standard:
  • Adyen keys injection into the Payment Terminal; o Adyen Payment Terminal Software loaded into the Payment Terminal;
  • Basic functionality test of the Payment Terminal; and
  • Secure packaging for shipment, including antitamper seal.
  • Registration and activation of the Payment Terminal in the Company Account on the Adyen Platform by Adyen or Merchant via the Customer Area;
  • Shipment to Merchant's designated central address (standard postal delivery only; courier services / express delivery on Merchant request is separately charged);
  • The license to use the Adyen POS Software with the Payment Terminal to connect to the Adyen platform and use the Services for the term of the Merchant Agreement; and
  • POS Software support for the Payment Terminal (as specified in section 4 below).
  • The sales price for the Payment Terminal excludes the following:
  • Local in-store implementation and first line support to in-store personnel (own responsibility Merchant as specified in section 5 below);
  • Terminal Replacement Service (separately charged as set out in section 3 below);
  • Optional accessories (such as chargers, base stations and frames) and additional supplies (such as additional paper rolls for printers and other consumables).

2.2 Payment Terminal ordering process

To order Payment Terminals, Merchant must use the online ordering tool made available to the Merchant. Merchant must provide all configuration and other details as requested.

Adyen strives to process smaller (up to 20) Payment Terminal orders and transfer the goods to the carrier within 1 Business Day of receipt of the order. The status of the order can be tracked in the Customer Area. Delivery lead times communicated by Adyen's carriers are an indication only and not guaranteed. In case of any carrier delay, Adyen and Merchant will cooperate to resolve such delay as soon as possible.

For larger order quantities (>20 Payment Terminals), longer order processing times (up to 12 weeks depending on order size) may apply. In case Merchant expects to order larger quantities and wishes to secure a shorter order processing time for such orders, Merchant should contact Adyen to separately agree an order forecasting process to enable Adyen to meet such requirement.

Orders for Payment Terminals are invoiced to Merchant on a monthly basis, based on the shipping date of the relevant Payment Terminal(s).

3. Terminal Replacement Service

3.1 Scope of Terminal Replacement Service

The Terminal Replacement Service entitles Merchant to the free replacement of defect Payment Terminals only in the following cases:

  • As a result of a hardware defect the Payment Terminal cannot be used to submit Transactions to Adyen; or
  • The Payment Terminal otherwise materially fails to function in accordance with its documentation. 

3.2 Pricing Terminal Replacement Service

Terminal Replacement Service will be procured for all Payment Terminals provided to Merchant, unless otherwise agreed in the Merchant Agreement. For the Terminal Replacement Service, a monthly fee per Payment Terminal applies as agreed in the Merchant Agreement.

3.3 Term and termination of Terminal Replacement Service

Terminal Replacement Service will continue for an indefinite term for Merchant's Payment Terminals, unless (i) terminated by Merchant as set out in section 3.3.1 below, or (ii) terminated by Adyen in accordance with section 3.3.2 below.

3.3.1 Termination by Merchant

Merchant may terminate the Terminal Replacement Service per the end of any calendar month by giving at least one week prior notice to Adyen. If Merchant wants to terminate Terminal Replacement Service for a particular model only, Adyen will endeavour to find a suitable solution with Merchant. No fees paid for Terminal Replacement Service are rebated on termination of the Merchant Agreement or in case of loss or destruction of a Payment Terminal.

After termination of the Terminal Replacement Service, Merchant can no longer use Adyen's repair service and can only procure new Payment Terminals to replace defect Payment Terminals. Once terminated for a certain model, the Merchant cannot reactivate the Terminal Replacement Service.

3.3.2 Termination by Adyen

Adyen may decide to no longer support Terminal Replacement Service for a specific Payment Terminal model by providing Merchant with at least 6 months' prior notice of termination of Terminal Replacement Service for the relevant Payment Terminal model ("TRS Termination Date"). Terminal Replacement Service will no longer be available for the relevant Payment Terminal model after the TRS Termination Date. No Terminal Replacement Service fee will be payable by Merchant after the TRS Termination Date.

The TRS Termination Date for a Payment Terminal model will not be earlier than 3 years from the date Merchant purchased such Payment Terminal, unless such earlier date is expressly indicated to Merchant before Merchant places the order for the Payment Terminal.

If the TRS Termination Date for a Payment Terminal model is nonetheless less than 3 years from the purchase date of an individual Payment Terminal (without express indication), Adyen agrees to compensate Merchant (within 1 month from the notice of the earlier EOL Date) by refunding an amount equal to 50% of the total Terminal Replacement Service fees paid for that individual Payment Terminal on the following invoice. After notification of the earlier TRS Termination Date, Merchant may (at its sole discretion) choose to (i) continue Terminal Replacement Service for the relevant model at the price agreed in the Merchant Agreement or (ii) terminate Terminal Replacement Service for the relevant model in accordance with section 3.3.1 above. 

3.4 Terminal replacement process

To request a replacement under the Terminal Replacement Service, Merchant must (prior to the expiry of the term of the Terminal Replacement Service) submit a Payment Terminal replacement request form (e.g. in the Customer Area). For replacement of more than 20 Payment Terminals at once, Merchant should first contact Adyen.

Upon receipt of the Payment Terminal replacement request with all required details, Adyen will within one Business Day process and transfer to the carrier a replacement Payment Terminal (same or equivalent model offering at least same level of functionality). The shipment with the replacement will contain return instructions (for return at Adyen's expense) for the defective Payment Terminal. Merchant must return the defective Payment Terminal in accordance with the return instructions within two weeks after receipt of the replacement Payment Terminal (or by immediately handing over the defective Payment Terminal to the courier if this option is made available by Adyen). If the Payment Terminal is not returned within this period, Merchant will be charged the costs of the replacement Payment Terminal.

3.5 Defects and exclusions

Adyen will examine the defect Payment Terminal to establish the cause of the reported defect.

If the defect is covered by the Payment Terminal Replacement Service (in-scope), no additional fees will be charged to Merchant.

If no defect is found in the Payment Terminal, the Merchant will be charged the costs of investigation (not to exceed 50% of the Payment Terminal's then current standard list price).

If the issue that triggered the defect in the Payment Terminal is caused by an outof-scope cause listed below, then the Merchant will be charged the out-of-scope repair costs (not to exceed the Payment Terminal's then current standard list price). Out-of-scope causes are:

  • Opening, changing, repairing, modifying or adding to the Payment Terminal by parties other than Adyen (or any attempt to do so);
  • Use with improper consumables, accessories or devices;
  • Undue external influence (e.g. contact with water, temperature outside operating conditions, oxidation, dropping the device etc.);
  • Improper use, i.e. use contrary to Adyen's operating instructions for such Payment Terminal;
  • Power supply defect (power surge);
  • Missing parts or damaged plastics;
  • Issues the Merchant could have resolved itself by updating or enabling updates of the Payment Terminal Software in accordance with section 4 below; or
  • Rechargeable battery failures.

3.6 Basic hardware warranty

If Merchant has terminated or not procured Terminal Replacement Service, a basic 4-month warranty period will apply for Payment Terminals and accessories purchased by Merchant, starting from the shipment date of the relevant hardware. To claim under this basic hardware warranty, Merchant should complete a warranty claim form and return the defective hardware to Adyen in accordance with Adyen’s instructions. Adyen will investigate and repair or replace the Payment Terminal or accessory if the defect is covered by the basic hardware warranty. Warranty claims made after the expiry of the 4-month period and defects caused by the out-of-scope causes listed in section 3.5 above are excluded from this basic hardware warranty.

4. POS Software & Updates

4.1 Types of POS Software

Adyen provides and supports the following two types of software (together "POS Software") for its Payment Terminals:

  • Payment Terminal Software: The software loaded in the Payment Terminal itself (enabling it to function and connect to the Adyen platform to submit POS Transactions).
  • POS Integration Software: Software that can be used by Merchant to link third party POS devices, e.g. tablets, smartphones or cash registers ("POS Devices") to Payment Terminals.

Adyen will make Patches and Releases available from time to time for the POS Software for all supported Payment Terminals as set out in section 4.2 below. Adyen will furthermore as part of the Services, at no additional charge, support the use of the POS Software by providing implementation support as specified in section 5.1 below.

4.2 Distribution of Updates

4.2.1. Release notes for Updates

Adyen will provide notice and communication on updates via the Customer Area (via the technical contacts registered), highlighting the new features and functionalities. For POS Integration Software Updates the Merchant will be informed on what to do to implement or allow the implementation of the Update.

4.2.2. For Payment Terminal Software

The Payment Terminal Software Updates will be remotely loaded to the Payment Terminals by Adyen from the Adyen platform automatically, unless otherwise agreed. To enable update installations, Merchant should leave the device powered on overnight (or allow sufficient time for installation of any Payment Terminal Software Updates before store opening), or at least periodically connect the Payment Terminal to the internet.

The Payment Terminal Software updates will be pushed in regular fashion to the Merchant's Terminal Fleet. In case of any update released by Adyen to implement an urgent issue in the POS Software ("Emergency Patch"), Adyen reserves the right to update the Payment Terminal Software more often. Examples of reasons for Adyen to issue Emergency Patches include software updates required to urgently attend to potential security concerns, PCI responsibilities, updated Schemes Owner requirements or to address material Service stability issues.

4.2.3. For POS Integration Software

The POS Integration Software Updates will be made available for download via the Customer Area. Implementation of the Update of a POS Integration Software is the responsibility of the Merchant and can be timed as desired by the Merchant, provided that older Releases are no longer supported 6 months after a new Release is made available to the Merchant and that for Emergency Patches shorter time windows may be applied as needed to address the relevant issue fixed with the Emergency Patch.

Not installing Updates may lead to Scheme Rule breaches by Merchant and in exceptional cases force Adyen to suspend submission of Transactions for nonupdated POS Software. Not installing Updates and any consequential breaches / suspensions are therefore fully at Merchant's own risk and liability. This would be the case if not installing the POS Software Update would cause the Payment Terminals to violate applicable Scheme Rules or legal requirements, or would cause a material and immediate threat to the security of data or systems. Adyen will work with Merchant to avoid such a suspension of Transactions from occurring.

4.2.1 Release notes for Updates

Adyen will provide notice and communication on updates via the Customer Area (via the technical contacts registered), highlighting the new features and functionalities. For POS Integration Software Updates the Merchant will be informed on what to do to implement or allow the implementation of the Update.

4.2.2 For Payment Terminal Software

The Payment Terminal Software Updates will be remotely loaded to the Payment Terminals by Adyen from the Adyen platform automatically, unless otherwise agreed. To enable update installations, Merchant should leave the device powered on overnight (or allow sufficient time for installation of any Payment Terminal Software Updates before store opening), or at least periodically connect the Payment Terminal to the internet.

The Payment Terminal Software updates will be pushed in regular fashion to the Merchant's Terminal Fleet. In case of any update released by Adyen to implement an urgent issue in the POS Software ("Emergency Patch"), Adyen reserves the right to update the Payment Terminal Software more often. Examples of reasons for Adyen to issue Emergency Patches include software updates required to urgently attend to potential security concerns, PCI responsibilities, updated Schemes Owner requirements or to address material Service stability issues.

4.2.3 For POS Integration Software

The POS Integration Software Updates will be made available for download via the Customer Area. Implementation of the Update of a POS Integration Software is the responsibility of the Merchant and can be timed as desired by the Merchant, provided that older Releases are no longer supported 6 months after a new Release is made available to the Merchant and that for Emergency Patches shorter time windows may be applied as needed to address the relevant issue fixed with the Emergency Patch.

Not installing Updates may lead to Scheme Rule breaches by Merchant and in exceptional cases force Adyen to suspend submission of Transactions for non-updated POS Software. Not installing Updates and any consequential breaches / suspensions are therefore fully at Merchant's own risk and liability. This would be the case if not installing the POS Software Update would cause the Payment Terminals to violate applicable Scheme Rules or legal requirements, or would cause a material and immediate threat to the security of data or systems. Adyen will work with Merchant to avoid such a suspension of Transactions from occurring.

4.3 Support of Payment Terminals

Adyen commits to use all commercially reasonable efforts to support the POS Software for each Payment Terminal sold by Adyen to Merchant for at least 3 years subsequent to the delivery of the Payment Terminal to the Merchant. If Adyen discontinues support of a certain type of Payment Terminal, it will where reasonably possible announce this at least 6 months in advance to the Merchant.

If Adyen due to special circumstances decides to end POS Software support for a Payment Terminal sold to the Merchant prior to the end of the 3 years period (e.g. because of discontinued support by the hardware vendor, security compromise which cannot be fixed on such Payment Terminal by a POS Software update or new Scheme Owner requirements which cannot be fulfilled with such Payment Terminal), then Adyen will compensate Merchant by crediting a proportional part of the sales price of such Payment Terminal to Merchant on buying a replacement Payment Terminal from Adyen (e.g. if the Payment Terminal is no longer supported 2 years after it was made available to the Merchant, Merchant will receive a credit of 1/3 of the sales price paid against the purchase of a replacement Payment Terminal).

5. POS Support

5.1 Implementation support

Adyen will support Merchant and its third-party suppliers in connecting thirdparty POS Devices as follows:

  • Make POS Integration Software available for integration in supported POS Devices to enable integration;
  • Provide user documentation for the POS Integration Software, related test checklists and other general guidance;
  • Provide access to test accounts on the Adyen Test Platform; and
  • Provide reasonably requested technical guidance via the Adyen helpdesk on subjects not covered by the provided documentation. Optionally the following additional services can be ordered in support of integration efforts:
  • Test terminals and test cards (only for testing purposes, not for processing transactions for actual sales).

5.2 POS First Line Support

Adyen only provides POS First Line Support if specifically agreed in the Merchant Agreement. For this service, a monthly fee per Payment Terminal applies as agreed in the Merchant Agreement.

If Adyen does not provide POS First Line Support, Merchant itself is responsible for all first line support activities to the end users of the Payment Terminals (e.g. store staff) including all onsite activities with respect to the Payment Terminals.

POS First Line Support consists of:

  • Terminal support: general technical troubleshooting related to Adyen's platform and Payment Terminal software:
  • Help identify network issues 
  • Payment device issues 
  • Account configuration
  • Other urgent problems and inquiries, such as theft, fraud or performance issues
  • Transaction support: troubleshooting with regards to particular transactions:
  • Payment statuses: refunds and refusal reasons 
  • Payment retries
  • MOTO payments: ability to perform payments over the phone in case of network outage.

This service will be available under the conditions below in English. Support in French, German, Dutch and other additional languages may also be made available in the relevant business hours.

The access numbers will be provided to Merchant separately.

5.3 End-user and on-site support (Merchant responsibility)

Merchant is responsible for:

0. providing all user support to the end users of the Payment Terminals (the in-store personnel);

1. performing all on-site activities in the stores where the Payment Terminals are to be used; and

2. only if Adyen's POS First Line support has not been procured by Merchant, performing initial analysis and troubleshooting of issues arising in the use of a Payment Terminal prior to engaging Adyen to resolve such issue.

If Merchant cannot resolve the issue itself, Adyen's Second Line Support is available to assist Merchant as set out in section 5.4 below.

Merchant's responsibilities include:

  • Being available to accept delivery of Payment Terminals at the designated address during regular business hours.
  • In the event of damage potentially affecting the functionality or security of a Payment Terminal (e.g. broken casing, screen or keypad), loss, theft or destruction of a Payment Terminal, informing Adyen immediately, and in no event later than 24 hours after discovery of the incident, by sending an email to [email protected] with serial number of the Payment Terminal (if available) and identifying appropriate contacts at Merchant who will be available for follow-up. In addition, as soon as possible but ultimately 5 Business Days after discovery of the incident, Merchant will provide Adyen (by email to [email protected]) with a complete description of the details of the incident and summarize all efforts undertaken/planned to investigate the incident and secure the information and Payment Terminals at issue.
  • Installing and configuring Payment Terminals on site in accordance with the applicable installation and configuration instructions provided for the Payment Terminal. If Merchant wishes to connect Payment Terminals to a POS Device, Merchant is also responsible for such installation and connection.
  • Only if Adyen's POS First Line support has not been procured by

Merchant: for Payment Terminal issues which cannot be resolved by Merchant, Merchant should determine whether the issue is a malfunction in the Payment Terminal Hardware or in the POS Software. Depending on the outcome of the analysis (by Merchant or by Adyen's POS First Line Support, as applicable):

  • For hardware issues in the Payment Terminal, follow the repair/replacement procedure described in section 3 above; and
  • For POS Software issues, contact Adyen's Second Line Support helpdesk as set out in section 5.4 below. For business continuity reasons, Merchant is advised to have a central spare stock per region.

Merchant must ensure that a central point of contact is available for its end users (e.g. in-store personnel) in case of questions/issues. Such central point of contact should be sufficiently trained to deal with such end user questions.

To enable Merchant's central point of contact to perform the above end user support tasks, Adyen will make material and training available to Merchant on a 'train-the-trainer' basis.

If Adyen's POS First Line Support has not been procured by Merchant, these Merchant central points of contact will be Adyen's contact persons for any requests to Adyen support (and accordingly Merchant's in-store personnel should not contact Adyen Second Line Support directly).

5.4 Second Line Support

Second Line Support is available to all Merchants without additional charge. Merchant can contact Adyen's Second Line Support helpdesk in case of an issue occurring in the POS Software which cannot be resolved by Merchant by means of the documentation and tools provided by Adyen to Merchant. For example, Merchant should ensure it has implemented/allowed Updates to the POS Software that are made available by Adyen to Merchant as set out above in section 4.3. The current contact details are listed on the Customer Area. Adyen's Second Line Support helpdesk is available in the English language, other languages may also be available.

6. General responsibilities of Merchant

To access and use the Services of Adyen, Merchant must in operating and using the Payment Terminal:

  • Ensure that the Payment Terminal is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner;
  • Make no alteration to the Payment Terminal and not remove any component(s) from the Payment Terminal without the prior written consent of Adyen;
  • Permit Adyen or its duly authorized representative to inspect the Payment Terminal at all reasonable times, subject to reasonable notice and during reasonable working hours at the relevant location;
  • Not, without the prior written consent of Adyen, allow any third party to use the Payment Terminal or submit POS Transactions via the Payment Terminal on behalf of a third party. The Payment Terminal may only be used by Merchant to submit POS Transactions to Adyen in its own name and for the business it registered for when entering into the Merchant Agreement;
  • Comply with the relevant usage manuals for the Payment Terminals and the POS Services of Adyen in general as published on the Customer Area, including in particular:
  • The manual of the particular type of Payment Terminal;
  • The Network Requirements Manual for Payment Terminals to ensure IP connectivity for the Payment Terminals to enable their proper functioning; and
  • The Payment Security Manual which provides guidelines to assist Merchant in safe and secure use of the Payment Terminal and POS Services;
  • Comply with PCI DSS security requirements imposed by the Card Schemes in handling and using Payment Terminals and on Adyen's request fill out Self-Assessment Questionnaires ('SAQs') prescribed by the Scheme Owners under applicable PCI DSS regulations to confirm such compliance; and
  • Follow the Scheme Rules in operating the Payment Terminals to submit POS Transactions. 

APPENDIX 4 TO SCHEDULE 1

CANADIAN MERCHANT ADDENDUM

Adyen for Platforms Terms & Conditions   

Payment processing services   

2. Description of the Service 

2.1 Payment Processing  

Merchant will be using the Services via the Marketplace Platform. Marketplace is representing Merchant towards Processor with respect to Merchant’s use of the Services and Processor may assume that Marketplace is authorised and mandated by Merchant to use the Services, submit Transactions on behalf of the Merchant and in accordance with the Merchants’ permissions and instructions which Marketplace will obtain from the Merchants.  

The Merchant is obliged to ensure all data that Processor requests to be provided for a Transaction, including those needed for fraud checks, are provided. If the Merchant fails to provide the requested data with each Transaction, Processor may be forced under the Scheme Rules to suspend Transaction processing and/or Transactions may be refused by the relevant Scheme Owners or Acquirers. Processor may revise the required data needed to process Transactions from time to time by informing Merchant via Marketplace as needed to be able to process such Transaction and conduct fraud checks under applicable Scheme  Rules. Marketplace is required to (i) access Transaction level data to provide support to 

Merchant at the level of individual Transactions and (ii) technically manage user settings of the Merchant with respect to the Services on Merchant’s behalf (e.g. 3D Secure, fraud control settings). 

2.2 Merchant Registration and KYC Check  

In order to enable Processor to comply with anti-terrorism, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Scheme Owners and Acquirers, Merchant must when entering into the Merchant Agreement and thereafter on Processor’s first request provide certain information about itself and its activities (the “Registration Information”). Merchant warrants unconditionally that all Registration Information it provides is correct and up to date. 

Merchant will provide Processor with at least 3 Business Days prior written notice via 

Marketplace of any change of the Registration Information. Merchant will on first request from Processor provide such additional information and supporting documentation as Processor may reasonably determine to need to ensure compliance with applicable laws and regulations and Scheme Owner and Acquirer KYC requirements. Merchant agrees that Processor may run further checks on Merchant’s identity, creditworthiness and background by contacting and consulting relevant registries, government authorities and Merchant relations. Processor will process Merchant’s Registration Information in accordance with its Privacy Statement (available on www.adyen.com). 

Processor’s acceptance of Merchant as user of the Services and the relevant Payment 

Methods is strictly personal and limited to the use by Merchant of the Services for payment of Merchant’s own products and services. Merchant may not use the Services to facilitate the payment for products or services sold by third parties and therefor may not resell the Services to third parties. Merchant shall only use the Services in the pursuit of its trade, business, craft or profession. 

Support for each Payment Method is subject to acceptance by the relevant Scheme Owner or Acquirer used by the Scheme Owner, which such Acquirer or Scheme Owner may withhold or withdraw in its discretion at any time. Merchant hereby authorizes Processor to submit

Registration Information received from Merchant to the relevant Scheme Owners and

Acquirers to obtain permission for providing access to their Payment Methods for Merchant. 

2.3 Payment Method Support 

Supported Payment Methods as part of the Services may change from time to time. Processor will give at least 1 month notice (through the Marketplace) of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. Processor will use its reasonable endeavours to offer an alternative for any discontinued Payment Method to the Merchant.  

Merchant understands that Acquirers and/or Scheme Owners might cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Processor may be forced to block Merchant from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquirer and/or Scheme

Owner. Where possible Processor will use its reasonable efforts to give Merchant prior notice  (through the Marketplace) of any such change or cancellation with respect to a Payment Method.  

2.4 3D Secure 

Processor will as part of the Services support 3D Secure authentication where supported by the relevant Scheme Owner and/or third party Acquirer. 

2.5 Payment Currency 

Processor will have the right to offer the shopper the option to use a different currency than the

Order Currency, in which case the Merchant will still always receive Settlement of the Transaction amount in the Order Currency (except in case another currency is agreed or the Merchant does not make a bank account available for Settlement in the Order Currency). 

2.6 Fraud Control 

All Transactions processed as part of the Services will be screened by the Processor’s Fraud Control Tool, which performs a number of checks on a Transaction and attaches a resulting total score to the Transaction, which represents the likelihood of the Transaction being fraudulent. The Fraud Control Tool does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or Fines. Regardless of the resulting total score, Transactions may be fraudulent or non-fraudulent. Marketplace will technically manage the settings of the Fraud Control Tool on behalf of the Merchant. In addition, Processor reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.  

2.7 Settlements 

Funds from the shopper charged for the validly processed Transactions of the Merchant (which are Acquired via Processor) are settled by the relevant Acquirer or the Scheme Owner to the account(s) held by the Processor. The funds Processor receives from payment service users or via another payment service provider and held in the payment processing account(s) by the Processor are safeguarded in accordance with the safeguarding requirements of The Dutch Central Bank (De Nederlandsche Bank). Processor will subsequently settle received funds directly to Merchant - withholding from the received funds the fees agreed between Marketplace and Merchant – who is the creditor of the received funds and holds sole power of disposition over such funds. The settlement is based on the binding Merchants’ settlement instructions which are submitted by Marketplace on behalf of the Merchant via Marketplace Platform. Marketplace is under no circumstances entitled to make any individual instructions towards Processor regarding the settlement of the funds.  

Processor is only obliged to provide Settlement of Transactions for which it has received settlement(s) by the Acquirer or the Scheme Owner. It is Merchant's responsibility to evaluate if the conditions imposed by the Payment Methods for settlement (as communicated from time to time by through the Marketplace) are acceptable to the Merchant. This is specifically relevant for certain Payment Methods that are not monitored and regulated by governmental financial services authorities, such as but not limited to non-Card Scheme related prepaid cards and SMS and IVR payments. Merchant understands and agrees that Processor will not compensate Merchant for late or non-performance, insolvency or bankruptcy of the Acquirer or Scheme Owner due to which Merchant receives late Settlement or no Settlement at all for processed Transactions. 

The Processor reserves the right to withhold Settlement of Transactions if they are Captured, but suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by Processor and/or the relevant Acquirer and/or Scheme Owner, until satisfactory completion of Processor's investigation, that of the relevant Acquirer or Scheme Owner or that of a third party nominated by any of these parties. Merchant will give its full cooperation to any such investigation. 

No interest will be due over amounts held by the Processor prior to Settlement of such funds to the Merchant, except in case Settlement is delayed for more than 30 days due to the intent or gross negligence of Processor. In such case interest will be due by Processor over the late Settled amount at the rate of the 3 month EURIBOR rate +2%. 

2.8 Required Data 

Merchant shall from time to time on the first request of Processor provide all required information regarding the then current actual or expected Delivery Dates for processed Transactions and estimates for the average time between Transaction Authorisation and the related Delivery Date. Further, Merchant shall provide Processor on its first request with all requested information on Merchant’s then current ability to provide the Merchant Products and Services it sells by means of the Services, its financial status, solvability and liquidity.  

2.9 Merchant Obligations and Restrictions 

Merchant may only use the Services for payment of those Merchant Products and Services which Merchant agreed with Marketplace to be offered through the Marketplace Platform. The Merchant shall not use the Services for the payment of Merchant Products and/or Merchant Services (i) where it is illegal to offer or provide these to or from the relevant country and/or (ii) which are stated in Processor's Prohibited and Restricted Products and Services List. This list may be updated in Processor’s discretion where needed to ensure legal compliance, compliance to Scheme Rules, prevent high levels of Chargebacks and/or to reduce exposure to potentially fraudulent or illegal transactions. Merchant will be informed of such updates by Marketplace. Where a published change affects a significant portion of the Merchant’s Product or Services, Merchant may terminate the Merchant Agreement by giving written notice to Processor (via Marketplace). Processors´ acceptance of Merchant as customer should not be interpreted as an advice or opinion of Processor as to the legality of Merchant’s Products and Services and/or of Merchant’s intended use of the Services therefore.  

The Services of Processor should not be used (and Transactions may not be submitted for processing) for prepaying Merchant Products and Services for which the Delivery Date is in part or in whole more than 12 months after the date the Transaction is submitted for processing. This can make Transactions more likely to be subject to Chargebacks. 

2.10 WARNING – Fines Scheme Owners  

For violations of certain key requirements under the Scheme Rules by Merchants, some 

Scheme Owners (and in particular the Card Schemes) can levy significant Fines. The Scheme Owners do this to protect the shoppers, Merchants and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Scheme Rules which are subject to such Fines: (i) using the Payment Method for other Merchant Products and Services than for which the Merchant received express authorisation to use it for; (ii) using the Payment Method for Merchant Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Merchant Products and Services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorisation for Merchant to use a Payment Method is strictly personal); (v) percentage of Transactions of a Merchant which is subject to a Chargeback is above the applicable acceptable level (vi) breaches of security and confidentiality obligations with respect to Payment Details (see clauses 4.1 and 4.3  for more information on this); (vii) fraudulent, misleading activities of which shoppers are the victim.  

Merchant is strongly advised to regularly review the then current Scheme Rules (made available via the Marketplace) and relevant changes to applicable laws as applicable to its Merchant Products and Services and business practices to ensure compliance to applicable Scheme Rules. Where Merchant finds the Scheme Rules (including Fine possibility) to be unacceptable, Merchant is free at any point in time to stop using the relevant Payment Method (the Scheme Rules and these terms remain applicable to previously processed Transactions for Merchant).    

Where Processor becomes aware of and/or receives any notice of a potential exposure to a Fine related to any Merchant behaviour, Merchant will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Processor in such situation as per these Terms and Conditions. Where possible Processor will share relevant feedback received by Merchant with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer / Scheme Owner. 

2.11 Taxes 

Merchant agrees to defend, hold harmless and indemnify Processor from and against any value added taxes (“VAT”), goods and services tax (“GST”), turnover and other taxes or levies including penalties, interests, surcharges ("Taxes") due on any product or service of Merchant or Marketplace (including but not limited to any Transactions, Merchant Products and Merchant Services) and costs or damages related to such Taxes. Merchant shall (i) apply all reasonable efforts to ensure that Processor cannot be held liable for any Taxes and costs or damages related to such Taxes, (ii) shall promptly inform Processor of any such liability and (iii) shall provide Processor with all relevant information and documentation in that respect. Furthermore, Merchant and Marketplace shall be jointly and severally liable towards Processor for any such Taxes and costs or damages related to such Taxes. 

3. Set-Off  

Without prejudice to any right to set-off which Processor may be entitled to as a matter of law, Processor may set-off any amounts due to the Merchant against any amounts owed or other liabilities of the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to Processor under, in connection to, or pursuant to the Terms and Conditions and/or the Merchant Agreement.  

4. Integration 

4.1 Integration via Marketplace 

Merchant will integrate with the Payment Interface of Processor via the systems of

Marketplace. Merchant shall set up its integration with the Payment Interface of Processor with the assistance of Marketplace as agreed between Merchant and Marketplace. Processor is not responsible for such integration but will ensure the Payment Interface is available for use by Marketplace for such purpose and will where needed provide second line support for such integration via Marketplace.  

4.2 Changes to Software 

Processor reserves the right to change or amend the Software and the interface to it at any time, to provide the Merchant with a new version thereof, and/or to change the functionalities and characteristics of the Software. No changes will be implemented by Processor which materially reduce functionality of the Services which was explicitly committed to be provided under the Merchant Agreement, except where this is made necessary by: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Scheme Rules, (iii) need for increased security due to security risks identified by Processor or (iv) other reasonable grounds which warrant the reduction of functionality. If Merchant is significantly impacted by a material reduction of functionality due to a change in the Software, it may terminate the Merchant Agreement by giving written notice to Processor within 1 month after Processor announced the change.  

4.3 Security of Payment Details 

Merchant guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are provided by the shopper for payments to be processed via the Services. This rule is imposed by the Scheme Owners to protect shoppers against misuse of their Payment Details (like credit card numbers) and is strictly enforced by the Scheme Owners, and a violation of this rule can lead to the application of high Fines by the Schemes Owners. If Processor has reason to believe that Merchant is copying, capturing or intercepting Payment Details, Processor has the right to suspend processing of Transactions and Settlement. Merchant shall fully indemnify and hold Processor harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Processor incurs as a result of Merchant’s breach of this obligation. 

5. Merchant Communications 

All first line communications with the Merchant regarding the use of the Services will run through Marketplace. Via the same communication channel, Processor will also inform

Merchants of relevant changes in applicable Scheme Rules, financial laws and regulations.  

6. Service Level Agreement 

6.1 Uptime Commitment Payment Interface  

The Payment Interface is the part of the Processor’s payment platform which handles the processing of Transactions on the moment the shopper initiates a payment to Merchant. Marketplace will connect Merchant to Payment Interface and Merchant will submit Transactions via this Payment Interface. Processor commits to use all commercially reasonable efforts and to setup its systems in a manner to enable an average minimum uptime of 99.9% (measured on a monthly basis) of the Payment Interface, to receive Transaction requests, excluding from uptime calculation downtime of the Payment Interface caused by acts or omissions of Merchant, Acquirers, Marketplace or Scheme Owners, changes implemented on specific Merchant request, general internet failures, failures of individual Payment Methods or force majeure. Merchant is obliged to immediately notify Processor via Marketplace of any downtime of the Payment Interface which it experiences and to provide all reasonably requested co-operation in investigating and resolving any such downtime.  

Processor uses all reasonable efforts to avoid having to take the Payment Interface offline for executing planned maintenance. Should under exceptional circumstances such maintenance nevertheless proves necessary, Processor will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential Transactions for all its Merchants. Should under emergency situations (e.g. in case of force majeure event or terrorist attack) unplanned maintenance be necessary to the Payment Interface necessitating it to be taken offline, Processor will use all available resources to keep the required downtime to the absolute minimum.    

6.2 Security and Compliance 

Processor shall take reasonable measures to provide a secure payment system and shall keep its systems used to provide the Services certified in accordance with the PCI-DSS security standards. 

7. Chargebacks and Refunds 

7.1 Chargebacks 

Merchant shall take all reasonable steps to ensure that the Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the shopper, to avoid any Chargebacks. In case Processor has reasons to suspect that Merchant is not delivering its Merchant Services or Merchant Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Processor has reason to suspect that the Merchant Products or Merchant Services for which Processor processes Transactions are based on fraud, likely to cause high Chargeback volumes and/or illegal, Processor has the right to suspend Settlement of all related Transactions and/or block Authorisations therefor until Processor has been given assurances to its satisfaction that the relevant Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the shopper.  

7.2 Refunds 

Refunds will be charged as a Transaction by Processor and a Refund fee can be applied by Processor after giving prior notice to Merchant, if manual intervention is needed or additional costs are incurred by Processor to process such Refund. Processor will not execute a Refund (meaning the relevant sum will not be returned by Processor to the relevant shopper, directly or via the relevant Acquirer / Scheme Owner) in case the funds for this cannot be subtracted from the next Settlement or are not funded otherwise. Refunds are not funded by Processor from its own means. 

8. Property Rights 

The property rights in the Software and other materials and all other intellectual property rights related to the Services are owned by Processor and its licensors. The Merchant Agreement does not transfer any intellectual property rights with respect thereto and only provides Merchant a limited, non-exclusive and non-transferable license to use the Software and all other materials made available by Processor solely for the purpose of using the Services in accordance with these terms and the applicable usage instructions communicated to Merchant via the Processor website from time to time. 

9. Confidentiality, Privacy and Compliance 

9.1 Confidentiality 

All information relating to the Merchant or to Processor and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content is considered “Confidential  Information”. Each party remains the owner of all data made available to the other party. Each  party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular: 

  • to share Confidential Information solely with personnel and representatives of the parties (including Marketplace) which have a need to have access to such information in order to exercise rights and obligations under the Merchant Agreement; and  
  • to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Processor where necessary to perform the Services.  

The obligation to maintain confidentiality does not apply to information: 

  • available to the general public;  
  • disclosed to one of the parties by a third party without any obligation of confidentiality;  
  • already in the possession of or known to one of the parties at the time of disclosure;  
  • developed independently of the Confidential Information by the other party; or  
  • if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information.  

The obligation of confidentiality as described in this clause shall remain in effect also following the termination of the Merchant Agreement, regardless of the grounds for termination. 

The following data is to be considered confidential, without need for special mention: 

  • all financial data;  
  • the any agreed Merchant specific terms and conditions in the Merchant Agreement, if applicable; and  
  • all user manuals, guides and any Software relating to Processor’s products and services.  

9.2 Privacy 

Where Processor processes personal data while performing the Services they will act as data processor under the direction and responsibility of the Merchant and/or Marketplace in accordance with EU General Data Protection Regulation 2016/679, including any successor thereof, and applicable Dutch privacy laws. Merchant will comply with the personal data protection laws of the Merchant’s country of origin and of those countries in which the Merchant offers its goods and/or services from time to time, in particular when processing and sending personal data to Processor in the context of using the Services and submitting transactions. Both Processor and Merchant shall implement appropriate measures to protect personal data against misuse. Processor shall not use personal data processed by Processor for Merchant under the Merchant Agreement for any other purpose then providing the Services and complying with applicable laws and Scheme Rules.  

9.3 Compliance 

The Merchant’s use of the Hosted Payment Page is PCI compliant under Processor's PCI DSS certification for the Hosted Payment Pages subject to Merchant complying to these Terms and Conditions. 

9.4 Use of Services 

In accordance with Dutch laws on hacking and computer crime, the Merchant shall only use the Services for the purposes as agreed herein and shall specifically not perform or allow to be performed any actions detrimental to the security or performance of the Services without Processor’s prior written consent. 

10. Duration and Cancellation 

10.1 Duration 

Except where explicitly agreed otherwise in the Merchant Agreement, the Merchant  Agreement shall be entered into for an indefinite period until it is terminated by either party by giving at least 2 months’ written notice to the other party. Such notices may be given via Marketplace by either party.  

10.2 Termination 

Merchant has the right to terminate the Merchant Agreement immediately if: 

  • The Service availability in any given calendar month is less than 95%; and/or -  The SLA commitments in clause 6 are not met during 3 consecutive months.  

Processor has the right to terminate the Merchant Agreement and/or stop processing or Settlement of Transactions for Merchant immediately in part or in whole if: 

  • The provision of Merchant's Services/Products for which Processor provides the Service is reasonable suspected by Processor to be in breach with legislation in the country where the Merchant Services/Products are offered from or to.  
  • Merchant has materially changed the type of Merchant Services/Products without obtaining Processor’s prior written permission to use the Services for the new or changed types of Merchant Services/Products;  
  • Merchant materially breaches any of the terms of the Merchant Agreement, the Scheme Rules and/or applicable laws in the context of using the Services.  
  • An Acquirer or Scheme Owner demands Processor to stop or suspend providing Services to Merchant with respect to Payment Methods made available by such Acquirer or Scheme Owner to Processor.  
  • Processor finds there are clear indications that Merchant is or is likely to become insolvent and/or unable to provide a material part of the Merchant Products/Services. or  
  • The agreement the Merchant has entered into with Marketplace for the use of the services of Marketplace has been terminated or has otherwise expired and/or an event permitting a termination by Marketplace under any such agreement occurs.  

11. Liability 

11.1 No Liability for Third Parties 

Processor shall only be liable for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Scheme Owners and Acquirers or for events or activities originating outside the systems of Processor (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Processor. 

11.2 Limitation of Liability 

The total liability of Processor under the Merchant Agreement towards Merchant for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to 10,000 euro. Processor shall not be liable for any special, indirect, or consequential damages (including any loss of profit, business, contracts, revenues or anticipated savings, or damage to good name) as a result of breach of contract, tort or under any other legal theory. 

Neither Processor, Merchant nor any other party to the Merchant Agreement excludes or limits its liability under the Merchant Agreement for intent, gross negligence, death, fraud or personal injury. 

12. Indemnification  

If any claims for damages, costs and expenses are asserted against Merchant by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of Processor, Processor shall indemnify Merchant without delay from these thirdparty claims, including Merchants reasonable costs of its legal defence, and offer Merchant the necessary assistance in its legal defence. 

Merchant shall indemnify and hold Processor harmless from any claim (including legal fees) brought against Processor by any third party (expressly including Scheme Owners and Acquirers and their claims for payments of Fines) as a result of Merchant’s breach of the terms of the Merchant Agreement, applicable laws and/or the Scheme Rules applying to the Payment Methods used by Merchant. 

13. General Provisions 

13.1 Transfer 

Processor shall be entitled, at any time, to assign, novate or otherwise transfer the Merchant  Agreement to another company in the Processor Group, i.e., a company with at least 50% the 

same shareholders, without the prior consent of the Merchant by providing written notice to Merchant of such transfer.  

13.2 Null Provisions 

In the event that any provision in the Merchant Agreement (including these Terms and Conditions) is declared null and void or inapplicable, said provision shall be deemed nonexistent, and all other provisions of the Merchant Agreement (including these Terms and Conditions) shall remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable. 

13.3 Entire Agreement 

The Merchant Agreement contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Merchant Agreement shall be of any force or effect unless expressly reduced to writing and repeated in the Merchant Agreement, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Merchant Agreement, expressly excluded to the fullest extent permitted by law. 

13.4 Changes to the Terms and Conditions 

Processor may revise these Terms and Conditions from time to time by giving at least 30 days written notice to the Merchant via Marketplace. If the change has a material adverse impact on Merchant and Merchant does not agree to the change, Merchant may terminate the Merchant Agreement by giving at least one month written notice to Processor (such termination notice to be sent at the latest 60 days after Merchant received notice of the change). Merchant is not entitled to object to and shall not have the rights set out in this clause for any change which Processor implements in order to comply with applicable law, regulations or requirements imposed by the relevant Acquirers and/or Scheme Owners or financial regulators. For such imposed changes shorter notice periods may be applied by Processor as is need to comply with the relevant requirement. 

13.5 Online Contracting – written confirmation 

In case Merchant has concluded the Merchant Agreement with Processor via Marketplace’s website or via any other online means, Processor may at any time request that Merchant reconfirms its acceptance of the terms of the Merchant Agreement (including these Terms and Conditions) by means of a written document signed by an authorised representative of the Merchant. If Merchant does not comply with such request within 5 working days after receiving a request by Processor to do so (which request may be issued to Merchant via the contact email address submitted by Merchant when concluding the Merchant Agreement), Processor reserves the right to suspend part or all of the Services until Merchant has complied with such request. 

13.6 Translations 

The terms of the Merchant Agreement, including these Terms and Conditions are made available to you in English. Any other terms or disclosures made available to you regarding this Merchant Agreement in any non-English language do not form part of our agreement and are for informational purposes only.  

14. Settlement of disputes 

14.1 Dispute Handling 

The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Merchant Agreement. This Article 14.1 is without prejudice to a party's right to seek interim relief against any other party (such as an injunction) through the competent courts to protect its rights and interests, or to enforce the obligations of any of the other parties. 

14.2 Applicable Law and Jurisdiction 

The Merchant Agreement and these Terms and Conditions are solely governed by Dutch law, excluding the Convention on Contracts for the International Sale of Goods. In the absence of an amicable agreement, any dispute relating to the validity, interpretation or fulfilment of the Merchant Agreement shall be submitted to the exclusive jurisdiction of the competent courts of Amsterdam the Netherlands. 

15. Europe specific terms 

15.1 Applicability of Payment Services Directive 

Title 7B of Book 7 of the Dutch Civil Code (Burgerlijk Wetboek) and other laws and regulations implementing Directive (EU) 2015/2366 (“PSD2”) or its predecessor, Directive 2007/64/EC ("PSD"), are not applicable to the extent it is permitted to deviate from relevant provisions in relationships with non-consumers, in accordance with Article 38 and 61 PSD2 (or Article 30 and 41 PSD).  

Where Processor provides payment services for the Merchant within the European Economic Area ("EEA") and where the shopper's payment service provider is located in the EEA, the parties hereby agree and confirm in accordance with article 62(2) of PSD2 that the Merchant shall pay the charges levied by Processor and the shopper shall pay the charges levied by his payment service provider (i.e. the ‘SHA’ (shared) principle).  

16. Canada specific terms 

16.1 Canadian regulatory disclosures 

The mandatory Canadian regulatory disclosures under this agreement are available at https://www.adyen.com/platform/licenses/canada-information-summary-box. 

16.2 English Language 

It is the express will of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volunté expresse des parties que cette convention et tousles documents s’y rattachant, y conpris les avis et les autre communications, soient rédigés et signés en anglais seulement.   

17. Australia specific terms 

17.1 Australian disclosures 

Merchant is advised to read and consider the Combined Financial Services Guide and Product

Disclosure Statement before acquiring or using the Service. The safeguarding requirements of The Dutch Central Bank (De Nederlandsche Bank) referred to in clause 2.7 above shall not apply to Transactions processed in Australia.  

17.2 Surcharging on Payment Methods in Australia 

Merchant in Australia will not impose a surcharge or any other fee on the relevant Payment Methods that exceeds the amount the Merchant pays for that Payment Method as a percentage of the total price.   

18. Singapore specific terms 

18.1 Singapore Safeguarding 

Services that are regulated under the Singapore Payment Services Act 2019 shall be provided by Adyen SG only. Funds which Adyen SG has received as settlement for processed payment transactions for Merchant from the relevant third party Acquirers or Scheme Owners in respect of the Service(s) that are not Settled to Merchant or any other party by the end of the same business day (“Relevant Funds”), will be deposited in bank accounts maintained with a licensed bank in Singapore held in the name of Adyen SG on trust for and on behalf of Merchant. Relevant Funds held in such trust accounts are segregated from Adyen SG's own funds and will be commingled with similar funds belonging to other merchants and held on an omnibus basis. The risks of such commingling include a shortfall attributable to such trust account (if any) being shared rateably among the merchants. Nevertheless, Adyen SG will in each case remain responsible to settle the Relevant Funds to the Merchant in accordance with the Merchant Agreement. If the licensed bank were to become insolvent, in accordance with Singapore banking laws, Merchant would rank as general unsecured creditors for any amounts owing to them. For the avoidance of doubt, the safeguarding requirements of The Dutch Central Bank (De Nederlandsche Bank) referred to in clause 2.7 above shall not apply to Transactions processed in Singapore.