“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.