Effective as of: September 6, 2022
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 TOASTTAB IRELAND LTD (“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, “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 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 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:
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.
2.1. 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 behalf of Merchant, 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 (as defined in the GDPR) in relation to 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 is authorized to contact Merchant or Employees, including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Merchant.
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 the 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.
4.1. 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; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) 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; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with Toast's provisioning of the Services (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); (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the Toast Platform or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or Toast’s network; or (i) 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 fulfill all of its obligations to each Customer for which Merchant submits a transaction and will resolve any consumer dispute or complaint directly with Customer; (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.
4.3. Merchant will use the Services and the Payment Provider Services only for its management and operation of its own business, and not for any business, services or offerings of 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 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.
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 and its beneficial owners, including persons having greater than a 25% ownership stake and/or control persons having significant responsibility to control, manage or direct a legal entity customer, authorize Toast to obtain, and will provide to Toast upon request, identity-verifying information about Merchant and its beneficial owners from time to time, including documentation as necessary, consumer reports on Merchant and beneficial owners including information relative to criminal history, or any other information necessary to comply with the requirements of the European Union anti-money laundering directives and relevant national transposing / implementing Applicable Law and Rules and Sanctions. 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; 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; (b) any communications provided to Customers as part of the Services (e.g. marketing, enrollment in a loyalty program) who desire to receive marketing material, enroll 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 by applicable law; 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; (c) 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, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced); (f) if Merchant is located in Canada and its loyalty program includes points used by guests to purchase goods or services from Merchant, Merchant may 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 Laws 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 the 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.
5.1. As between the parties, Toast (and/or its licensors) owns or has license to all rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, 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), and Professional Services provided under the Agreement, all of which shall and is expressly intended to remain vested in Toast and/or its licensors. Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to Toast, Inc., 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 non-exclusive, 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. 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 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 and marketing collateral, 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.
6.1. Merchant will pay all Fees set forth in each Order, including any document cross-referred to in that Order. All Fees are non-cancellable and non-refundable, except as otherwise expressly provided for herein. Merchant will pay all Fees in Euros or in such other currency as agreed to in writing by the parties.
6.2. 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/or processing rates 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 and/or processing rates, 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 rate change under this sub-Section 6.2, then Merchant may terminate this Agreement by providing Toast written notice prior to the effective date of such Fee and/or rate 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 rates for Services provided through the date of Merchant’s notice of termination.
6.3. Merchant authorizes and instructs Toast to instruct Payment Provider on Merchant’s behalf to withhold from each Settlement any applicable Fees, amounts based on agreed processing rates, 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 the Merchant’s intent. Merchant acknowledges that Toast may rely on all instructions given to Toast by the 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, amounts based on agreed processing rates, 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 5 days of it being issued to Merchant.
6.4 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 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. You authorize and instruct Toast to instruct Payment Provider on your 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 the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to Toast under, in connection to, or pursuant to this Agreement.
6.5. All Fees are exclusive of Taxes (and specifically excluding Taxes payable by Toast based on Toast's income). Toast is not obligated to, nor will Toast determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Merchant is solely responsible for payment of, and Merchant agrees to pay, all applicable Taxes regardless of whether such Tax amounts are listed on an Order.
6.6.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.
7.1. The Payment Provider Terms and Conditions are located at the hyperlink set forth in Section 18 in the definition thereof. Certain other terms relevant to payment processing are set forth at Annex A.
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) and the then-current version of the Merchant Agreement will automatically renew for successive one (1) year 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 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.
8.2. Toast may suspend Merchant's username and password, Toast Account and access to the Services, and/or may terminate the Agreement, and you authorize Toast to instruct Adyen 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, (f) 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 (f) 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 for Services provided by Toast through the date of Termination. Additionally, Merchant shall incur and pay an early termination fee equal to either i) the remaining Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, (“Early Termination Fee”), and 2) 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 4.8, Section 5 (Ownership; Merchant Data, Customer Data & Trademarks), rights to any payments of 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 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.
9.1. 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; and (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.
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 LAWS 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 LAWS 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 LAWS AND RULES, THE SERVICES AND THE PAYMENT PROVIDER SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.
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 defense 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 (i) designs, specifications, or modifications originated or requested by Merchant, (ii) 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, (iii) Merchant’s failure to install an update provided by Toast at no additional charge, where same would have avoided or mitigated such claim, (iv) allegations of infringement made by a non-practicing entity, (v) 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 (vi) any claims that are attributable to Merchant’s gross negligence or willful 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 willful 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 noncompliance with any Applicable Law and Rules by Merchant or its Employees expressly including any claims by Payment Provider arising out of such noncompliance, (f) any non-compliance with Section 13 of this Agreement, (g) Merchant’s, or any Employees’, breach or nonperformance 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.
12.1. 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 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 (v) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (w) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (x) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (y) 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 (i) to its 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; (ii) as required by law (in which case each party shall, if permitted by Applicable Law and Rules, provide the other 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); and (iii) 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.
13.2 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.
14.1. 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 Merchants use of the Services or our websites, shall be resolved exclusively through 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. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement. In any event, any action or proceeding by Merchant against Toast relating to any dispute must commence within one year after the cause of action accrues.
14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by Applicable Law and Rules, Merchant and Toast agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both 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 favor 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. 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 such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to Toast should be sent to Toast at 401 Park Drive, Suite 801, Boston, MA 02215, Attn: General Counsel. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Toast and Merchant do not resolve the claim 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.
14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and Applicable Law and Rules. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Toast and Merchant agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Merchant’s claim is for €10,000 or less, Toast agrees that Merchant may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in- person hearing as established by the AAA Rules. If Merchant’s claim exceeds €10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
14.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
14.6. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
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.
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.
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, 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.
17.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts or choice of law provisions, and controlling U.S. federal law. Except as set forth in Section 14, the parties agree that the federal or state courts in the city of Boston shall have exclusive jurisdiction to hear and determine any dispute between them. 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. With the exception of Fee and rate changes described in Section 6.2, 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 Laws and Rules. If any provision of this Agreement is held by 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.
“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, or attachment to any of the foregoing that is incorporated by reference therein or herein. “Agreement” does not include the Payment Provider Terms and Conditions.
“Applicable Data Protection Laws” has the meaning given to it in the Merchant Data Processing Addendum.
“Applicable Law and Rules” means all national, European Union, federal, state, provincial, 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, any applicable tax laws and regulations, all requirements of the European Union anti-money laundering directives and relevant national transposing / implementing measures, 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. For the purposes of this Agreement, Applicable Law and Rules includes Data Privacy, Sanctions and Security Laws.
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.
“Chargeback” has the meaning set forth in the Payment Provider Terms and Conditions.
“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, enrolls 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.
“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 (“KDS”), switch, router, card, cable, wall mount, printer or other item of physical hardware, as made available by Toast, and rented under an Order. For clarity, Hardware does not include the Payment Provider Terminals.
“Location(s)” means the actual number of locations for which Merchant is agreeing to purchase and/or license, as applicable, the Toast Hardware, Services and/or Professional Services, as reflected in an Order.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, database rights laws, 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.
“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 of Settlement.
“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 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 Sub-Merchant established and held by Payment Provider in Sub-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. 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, rented and/or licensed hereunder, 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 is Adyen N.V.; Simon Carmiggeltstraat 6-50, 1011 DJ Amsterdam, The Netherlands.
“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 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;
2. The terms and conditions for a service allowing Settlement per sales day;
3. The terms and conditions for prohibited and restricted products and services (the “Payment Provider Prohibited and Restricted Services and Products”); and
4. The terms and conditions for payment terminals provided by Payment Provider (the “Payment Provider Terminal Services”).
“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.
“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), and contractors.
“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 and European Union 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 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.
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, which would not require Toast to be regulated as a payment service provider under Directive 2015/2366 EU.
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 and has reviewed each such document, including (i) the general terms and conditions for the Payment Provider Services, available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms and (ii) the Payment Provider Prohibited and Restricted Services and Products, available at https://www.adyen.com/legal/list-restricted-prohibited.
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, amounts based on agreed processing rates, other amounts pursuant to Annex A and any other amounts as agreed in any Order Form, and for Merchant to receive any Settlements. 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 30 days. If Merchant fails to instruct Toast to instruct Payment Provider to pay out such funds within 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 you authorize Toast to instruct Payment Provider on your 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), you authorize Toast to, or to instruct Payment Provider on your 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, you authorize 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. You also authorize Toast to instruct Payment Provider on your 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 favor 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, you authorize Toast to instruct Payment Provider on your 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, you authorize Toast to, or to instruct Payment Provider on your 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, you authorize Toast to fund, or to instruct Payment Provider on your 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. Merchant will execute any additional documentation required for Toast to perfect its security interest in any funds in the Reserve. This security interest survives 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 you authorize 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 you authorize Toast to instruct Payment Provider on Merchant’s behalf to deduct, the amount of any Chargeback and any associated 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. 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.
12. 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.