Merchant and Toast hereby agree as follows:
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. Merchant shall make no alteration to the Hardware or the Payment Provider Terminals and shall not remove any existing component (or components) from the Hardware or the Payment Provider Terminals without the prior written consent of Toast or Payment Provider, as applicable. Merchant shall not, without the prior written consent of Toast, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Hardware or the Payment Provider Terminals and shall not use the Hardware or the Payment Provider Terminals for any unlawful purpose. Merchant acknowledges that Toast shall not be responsible for any loss of or damage to the Hardware or the Payment Provider Terminals including any arising out of or in connection with any negligence by Merchant, or misuse or mishandling of the Hardware or the Payment Provider Terminals by Merchant or otherwise caused by Merchant or in each case its Employees, agents and contractors, and Merchant shall indemnify Toast in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Toast arising out of, or in connection with any failure by Merchant to comply with the terms of this Agreement.
2.3. Merchant agrees: (a) not to sell, charge, let or part with possession of the Payment Provider Terminals; (b) not to remove the Payment Provider Terminals from the premises where it was originally installed without Toast's or Payment Provider’s prior written consent, as applicable; (c) not make any modification or additions to the Hardware or the Payment Provider Terminals without Toast's prior written consent; (d) to use the Payment Provider Terminals in accordance with the manufacturer's, Toast’s and/or Payment Provider’s instructions, as applicable; and (e) to take proper care of the Payment Provider Terminals. Merchant will ensure that the Payment Provider Terminals are maintained in good operating order. Any alterations, repairs, maintenance and replacements necessary (including of consumables) as permitted under this Agreement shall be made at Merchant’s expense. If any parts or accessories are missing, or if there is any damage to the Payment Provider Terminals, then Merchant shall notify Toast and Merchant will be liable for any costs Toast incurs in restoring it back to good operating order.
2.4. 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.
2.5. 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.
2.6. 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 licence 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 ACH 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.
8.6. When the Agreement expires or is terminated for any reason, Merchant must, at its risk and expense, uninstall the Hardware and ship it freight/ transport prepaid to Toast within thirty (30) days. Merchant shall cause the Hardware returned for any reason under this Agreement to be in the same condition as when delivered to Merchant, ordinary wear and tear excepted.
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.
11.1. 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
13.2 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.