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Merchant Agreement

 

BY EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS AND CONDITIONS OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY TOAST, INC. (“TOAST”), MERCHANT (AS DEFINED IN THE ORDERING DOCUMENT) AGREES TO THESE STANDARD TERMS AND CONDITIONS. IF MERCHANT DOES NOT AGREE WITH THESE STANDARD TERMS AND CONDITIONS, MERCHANT MAY NOT USE SUCH SERVICES, SOFTWARE OR HARDWARE.

Merchant and Toast hereby agree as follows:

1. Scope

1.1 These Standard Terms and Conditions apply to Merchant's use of Toast's point-of-sale and restaurant, hospitality and retail management system, packaged professional services, report generator, content, Toast App (as defined below), products and offline components ("Services") and hardware (“Hardware”) ordered by Merchant under an ordering document (including any online order) specifying the Services and Hardware to be provided hereunder ("Order"). The Services include (a) mobile and web applications for use by Merchant’s authorized employees, agents and contractors ("Employees") to place orders and process payments, including through use of payment Cards (as defined below) on behalf of Merchant’s customers (“Customers” and such payments, "Payments"); (b) making payment to Merchant of monies from Customer Payments ("Net Sales Proceeds"), less Fees (as defined below); (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 account with Toast (the “Toast Account”).

1.2 These Standard Terms and Conditions, all Orders and the privacy policy made available at pos.toasttab.com/privacy (the “Privacy Policy”; collectively referred to as this "Agreement") represent the parties' entire understanding regarding the Services and will control over any different or additional terms of any purchase order or other 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. In the event of a conflict between this Agreement and an Order, the terms of the Order will control. All capitalized terms not defined herein will have the meanings attributed in the Order.

 

2. Right to Use the Services

2.1 Subject to the terms and conditions of this Agreement, Toast grants to Merchant a nontransferable (except in accordance with Section 16.5 below), nonexclusive, worldwide right during the Term (as defined below) to permit Employees to access and use the Services.


2.2 Merchant will be (a) responsible for maintaining the security of its equipment and access passwords to the Toast Account and (b) liable for all acts and omissions of its Employees.


2.3 As part of the Services, Toast may make available certain software either installed on hardware provided by Toast or for download directly or through a third party and/or a website for use of the Services by Employees (collectively, the “Toast App”). When Employees download or use any Toast App, they will be required to agree to End User Terms of Use, made available at pos.toasttab.com/terms-of-service, which will protect Toast’s rights in the Toast App and allow use of the Toast App only for the purposes of the Services.

 

3. Implementation

In the event that Merchant orders, and Toast agrees to provide, any implementation or training services under the Order, promptly after the effective date of this Agreement, Merchant will provide Toast with information, resources and assistance as necessary or useful to enable Toast to implement the Services for Merchant’s purposes as described on the Order and to provide training to the Employees.

 

4. Usage Restrictions 

4.1 Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or Toast App; (b) modify, translate, or create derivative works based on the Services or Toast App; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Toast App; (c) use or access the Services or Toast App to build or support and/or assist a third party in building or supporting, products or services competitive to Toast; (d) remove any proprietary notices or labels from the Services or Toast App; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with Toast's provision of the Services; or (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 App or otherwise provided or made available to Merchant.


4.2 Merchant covenants that (a) any sales transaction submitted by Merchant will represent a bona fide sale of goods or services by Merchant; (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 all federal, state, local and foreign laws, rules and regulations applicable to Merchant and/or Merchant’s business, including any applicable tax laws and regulations, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the by-laws, operating regulations and/or all other rules, policies and procedures of VISA, MasterCard, Discover and/or other Card (as defined below) networks as in effect from time to time (collectively, “Applicable Law and Rules”); (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; and (f) Merchant’s use of the Services will be in compliance with this Agreement. Without limiting the foregoing, Merchant acknowledges and agrees that Merchant’s use of Customer information obtained in connection with the Services may be subject to Applicable Laws and Operating Rules, and Merchant is solely responsible for knowing such Applicable Law and Rules. The payment processing portion of the Services may only be used in the United States of America. Merchant may not export or otherwise make available the payment processing portion of the Services directly or indirectly, outside of the United States , and Merchant acknowledges that the Services may be subject to export restrictions imposed by Applicable Law and Rules, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII).


4.3 Merchant will use the Services and Toast App only for its management and operation of its own business, and not for any business, services or offerings of third parties. Without limiting the foregoing, Merchant will not act as a payment intermediary, aggregator or service bureau or otherwise resell the Services on behalf of any third party. This means that Merchant may not use the Services to handle, process or transmit funds for any third party. Merchant also may not use the Services to process cash advances.


4.4 Toast will review some or all of the information that Merchant submits in connection with Merchant’s request to sign up for the Services. Toast may forward such information on to its processor. In order to be eligible to use the Services, Merchant must agree that Toast may share information about Merchant and the Bank Account with its processor. After Merchant submits its application, Toast or its processor may conclude that Merchant will not be permitted to use the Services, in which case Toast may immediately terminate this Agreement.


4.5 Merchant will provide any additional information reasonably requested by Toast within five (5) business days following request, including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also permit Toast to inspect its business location(s). Merchant and its principal owners authorizes Toast to obtain identity-verifying information about Merchant from time to time, including consumer reports on Merchant and its principal owners.


4.6 Toast may perform maintenance on the Services from time to time, which may result in service interruptions, delays, or errors. 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. Toast may alter which devices are approved as compatible with the Services in Toast’s discretion from time to time.


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 personally enter his or her phone number or email address in the appropriate space displayed on the applicable device; Merchant and/or Employees are NOT permitted to add or modify any Customer information (including but not limited to phone number and email address) on behalf of a Customer; (b) with respect to each Customer who desires to receive marketing material or other communications from Toast and/or Merchant via text message or email, such Customer must check the appropriate consent check box displayed on such device; Merchant and/or Employees are NOT permitted to add or modify a Customer's consent indication on his or her behalf; (c) Merchant and/or Employees may only send marketing materials or other communications to Customer's provided phone number, street address and/or email address if Customer has specifically consented by checking (himself or herself ) the applicable box displayed on the applicable device. NOTWITHSTANDING THE CAPABILITY OF THE SERVICES TO COLLECT AND STORE CUSTOMER INFORMATION AND TO ALLOW MERCHANT CUSTOMERS TO ELECT TO RECEIVE MARKETING MATERIALS FROM MERCHANT, APPLICABLE LAWS AND OPERATING RULES MAY LIMIT THE USE OF SUCH INFORMATION ONCE COLLECTED, EVEN IF CUSTOMER HAS PROVIDED CONSENT, AND/OR DISCLOSURE OF SUCH INFORMATION TO THIRD PARTIES.

 

5. Ownership; Merchant Data & Trademarks

5.1 Toast owns or has rights to use all intellectual property rights in and to the Services (including all derivatives or improvements thereof). Toast will be free to use, disclose, reproduce and otherwise exploit any and all suggestions, enhancements requests, feedback, recommendations or other input provided by Merchant or any other party relating to the Services as Toast sees fit, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Toast.


5.2 Merchant owns any data, information or material originated by Merchant that Merchant submits or provides in the course of using the Services ("Merchant Data"). Merchant hereby grants to Toast a non-exclusive, royalty-free, fully paid up, and worldwide license to copy, modify (including the right to create derivative works of), display and use Merchant Data solely in connection with performing the Services. The Merchant Data will be owned by Merchant, and Merchant will be solely responsible for the accuracy, quality, content and legality of Merchant Data, the means by which Merchant Data is acquired and the transfer of Merchant Data outside of the Services. Except to the extent Merchant or any Employees make any Merchant Data accessible to other users or the public through the Services, Merchant Data will be deemed to be Merchant Confidential Information pursuant to Section 12 below. Notwithstanding anything else in this Agreement, Toast may monitor Merchant's and its Employees’ and Customers’ use of the Services and use Merchant Data in an aggregated and anonymous manner, compile statistical and performance information related to the provision and operation of the Services and may make such information publicly available, provided that such information does not incorporate and/or identify Merchant's Confidential Information. Toast retains all intellectual property rights in such information.


5.3 Merchant represents and warrants 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 as part of the Services. Merchant will not upload or store any data or materials containing any such information described in this section.


5.4 Merchant hereby grants Toast a nonexclusive right and license to use and display Merchant’s name, logo and similar indicia (“Merchant Marks”) on its website and marketing collateral identifying Merchant as a customer of Toast. Toast obtains no rights in the Merchant Marks except for the limited right described in the preceding sentence, and Merchant retains all right, title and interest in the Merchant Marks. All use of the Merchant Marks by Toast will inure to Merchant.

 

6. Billing & Payment 

6.1 Merchant will pay all fees set forth in each Order (“Fees”) and in the lease agreement, if applicable. All Fees are non-cancelable and nonrefundable. Merchant will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.


6.2 Merchant’s subscription Fees to access and use the Services will remain unchanged during the initial Term of this Agreement. Toast reserves the right to increase any third-party pass-through processing fees during the Term to the extent they are increased by such third parties. Merchants continued use of the services after the beginning of the new term or an increase in pass-through fees will be deemed acceptance of such changes unless Merchant closes its Toast Account prior to the effective date of such change.


6.3 All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Applicable Law and Operating Rules, whichever is lower, plus all reasonable expenses of collection. Such unpaid invoices, finance charges and expenses may be deducted from the deposit of any Net Sales Proceed under Section 7.4 below.


6.4 All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Merchant will be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Toast's income) (“Taxes”), even if such amounts are not listed on an Order. 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 will be solely responsible for payment of, and Merchant agrees to pay, all Taxes.


6.5 If in a given calendar year Merchant receives (a) more than $20,000 in net Card Payments and (b) more than 200 Payments, Toast will report annually to the Internal Revenue Service as required by Applicable Laws and Operating Rules, Merchant’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the Payments Merchant receives in a calendar year, and the total dollar amount of the Payments Merchant receive for each month in a calendar year.

 

7. Payment Processing 

7.1 Merchant hereby authorizes Toast to hold, receive and disburse funds on its behalf and to access the Bank Account (as defined in the Order) to effectuate payment and to receive any Fees. Merchant’s authorization permits Toast to generate a paper draft or an electronic funds transfer to process each payment transaction that Merchant authorizes. Merchant’s authorizations will remain in full force and effect until its Toast Account is closed or terminated.

7.2 Toast works with any U.S.-issued and most non-U.S. issued credit and debit cards with a Visa, MasterCard, Discover or American Express logo (“Cards”). From time to time, Toast may support additional Cards at its discretion. Toast will only process Cards that receive an authorization from the applicable Card processing network or Card issuer.

7.3 Once Merchant’s Bank Account information is verified, Toast will automatically deposit the Net Sales Proceeds collected (less any applicable Fees and other amounts owed) to Merchant’s Bank Account via direct deposit. This deposit will normally appear in the Bank Account within 1-2 business days after payment settlement is initiated. It is Merchant’s responsibility to initiate settlement of its payments in a timely manner through the Services. Optionally, Merchant may request that Toast automatically initiate settlement of Merchant payments at 4:30 AM ET for the previous day's activity. If Merchant chooses to utilize this optional service, Toast is not responsible for any loss in gratuities caused by settlement before the gratuity adjustment was made. Not settling Merchant’s payments in a timely manner can result in higher processing rates charged by the card processing networks. Toast reserves the right to reclaim such charges from Merchant.

7.4 If Merchant has not provided goods or services consistent with this Agreement, Toast will have the right to refuse to pay any Net Sales Proceeds and/or to pay a refund to any Customer from the Bank Account. Toast reserves the right to adjust the Net Sales Proceeds due for any period to compensate Toast for any Chargebacks (as defined below), 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 Net Sales Proceeds any other claim Toast may have arising hereunder. 

7.5 Should Toast need to conduct an investigation or resolve any pending dispute related to Merchant’s Bank Account, Toast may defer payout or restrict access to Merchant’s funds for the entire time it takes for Toast to do so. Toast also may defer payout or restrict access to Toast funds as required by Applicable Law or Rules or court order, or if otherwise requested by law enforcement or governmental entity.


7.6 When a payment is made to Merchant’s Bank Account, Toast will update Merchant’s Bank Account reporting through the Toast App. Reporting of Merchant’s Bank Account activity by Toast is available through the Toast App for up to one year of 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 Bank Account and Merchant’s use of the Services, and (b) reconciling all transactional information that is associated with Merchant’s Bank Account. If Merchant believes that there is an error or unauthorized transaction activity is associated with the Bank Account, Merchant will contact Toast immediately.


7.7 The amount of a transaction may be reversed or charged back to the Bank Account (a "Chargeback") if the transaction (a) is disputed, (b) is reversed for any reason by the Card processing networks, Toast’s processor or a Customer or Toast’s financial institution, (c) was not authorized, or (d) is unlawful, suspicious or in violation of the terms or conditions of this Agreement.


7.8 At any time and from time to time, Toast may temporarily suspend or delay payments to Merchant in accordance with Section 8.2 below and/or designate an amount of funds that Merchant must maintain in its Toast Account or in the Bank Account (a "Reserve") to secure the performance of its payment obligations under this Agreement. Toast may require a Reserve for any reason, including if Merchant has a high rate of Chargebacks, refunds or other indications of performance problems related to its use of the Services. The Reserve will be in an amount as reasonably determined by Toast to cover anticipated Chargebacks, unfulfilled products or services or credit risk based on Merchant’s processing history or such amount designated by Toast’s processor. The Reserve may be raised, reduced or removed at any time by Toast, in its sole 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 or its processor may determine or require.


7.9 For any transaction that results in a Chargeback, Toast may withhold the Chargeback amount in a Reserve. Toast may deduct the amount of any Chargeback and any associated Fees, fines, or penalties listed in each Order or assessed by a third party, from Merchant’s Toast Account or Bank Account (including without limitation any Reserve), any proceeds due to Merchant or other payment instrument registered with Toast. If Merchant has pending Chargebacks, Toast may delay payouts from Merchant’s Toast Account. Further, if Toast reasonably believes that a Chargeback is likely with respect to any transaction, Toast may withhold the amount of the potential Chargeback from payments otherwise due to Merchant under this Agreement until such time that: (a) a Chargeback is assessed due to a Customer's complaint, in which case Toast will retain the funds; (b) the period of time under Applicable Laws and Operating Rules by which Customer may dispute that the transaction has expired; or (c) Toast determines that a Chargeback on the transaction will not occur. If Toast is unable to recover funds related to a Chargeback for which Merchant is liable, Merchant will pay Toast the full amount of the Chargeback immediately upon demand. Merchant will pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred by or on behalf of Toast in connection with the collection of all Toast Account deficit balances unpaid by Merchant.


7.10 Merchant will not incur excessive Chargebacks. If Toast determines that Merchant is incurring excessive Chargebacks, Toast may establish controls or conditions governing Merchant’s Toast Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by Toast to cover anticipated Chargebacks and related fees, and (c) delaying payouts.


7.11 Merchant will assist Toast when requested, at Merchant’s expense, to investigate any of Merchant’s transactions processed through the Services. To that end, Merchant permits Toast to share information about a Chargeback with Customer, 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. If the Chargeback is successfully contested, Toast will release the reserved funds to the Bank Account. If a Chargeback dispute is not resolved in Merchant’s favor by the Card network or issuing bank or Merchant chooses not to contest the Chargeback, Toast may recover the Chargeback amount and any associated fees as described in this Agreement. Merchant acknowledges that its failure to assist Toast in a timely manner when investigating a transaction, including providing necessary documentation within the time period specified in Toast’s request, may result in an irreversible Chargeback. Toast reserves the right, upon notice to Merchant, to charge a fee for mediating and/or investigating Chargeback disputes.


7.12 Toast may decide not to authorize or settle any transaction that Merchant submits to Toast if Toast believes that the transaction is in violation of any Toast agreement, or exposes Merchant, other Toast users, Toast processors or Toast to harm. Harm includes fraud and other criminal acts. If Toast reasonably suspects that Merchant’s Toast Account or Bank Account has been used for an unauthorized, illegal, or criminal purpose, Merchant gives Toast express authorization to share information about Merchant, Merchant’s Toast Account and Bank Account, and any of Merchant’s transactions with law enforcement.


7.13 The card processing networks require that Merchant and Toast comply with all Applicable Law and Rules. Significant portions of the Rules are made available to the public at usa.visa.com and www.mastercard.com. Toast may modify this Agreement to comply with and as a result of amendments to Applicable Law or the Rules. Applicable Law and Rules may prohibit or impose conditions on Merchant assessing a surcharge for the use of a Card in connection with any transaction.


7.14 Toast is permitted to contact and share information, documents instruments related to or about Merchant and any Orders, and the Bank Account with Merchant’s bank or other financial institution. This includes sharing information (a) about Merchant’s transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Services, (c) to create and update their customer records about Merchant and to assist them in better serving Merchant, and (d) to conduct Toast's risk management process., and (e) for use in connection with a Merchant’s related financing, lending or rental agreement.


7.15 Merchant may use the Services from time to time to conduct point-of-sale activities offline; transactions initiated offline will be queued and submitted for authorization when Internet connectivity to the Services is restored. However, Merchant assumes any and all risk, responsibility and liability associated with any transaction that Merchant chooses to conduct while the Services are used offline.


7.16 Toast will attempt to rectify processing errors that Toast discovers. If the error resulted in Merchant’s receipt of less than the amount to which Merchant was entitled, Toast will credit Merchant’s Bank Account for the difference. If the error results in Merchant’s receipt of more than the amount to which Merchant was entitled, Toast will debit the express funds from Merchant’s Bank Account. Toast will only correct transactions that Merchant processes incorrectly if and when Merchant notifies Toast of such an error. Merchant’s failure to notify Toast of a processing error within thirty (30) days of when it first appears on its electronic transaction history will be deemed a waiver of any right to amounts owed to Merchant for such error.

 

8. Term & Termination; Suspension; Survival

8.1 The initial term of this Agreement will commence on the earlier of (i) the Start Date set forth in an Order and (ii) the Activation Date and, unless earlier terminated as set forth below, will remain in effect for the period set forth in the applicable Order. Thereafter, the term of this Agreement with respect to such Order will automatically renew for successive one (1) year periods (collectively, the “Term”); provided, however, that either party may terminate this Agreement with respect to an Order as of the end of the corresponding initial Term or any renewal Term thereon upon thirty (30) days’ notice prior to the end of the then relevant Term.

8.2 Toast may suspend Merchant's password, Toast Account and access to the Services upon written notice to Merchant if (a) Merchant fails to make any payment due within thirty (30) days after Toast has provided Merchant with notice of such failure; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the Toast Account registration requirements; (c) Toast determines that Merchant is incurring excessive Chargebacks; or (d) Merchant violates Sections 2, 4 or 12. Any suspension by Toast of the Services under the preceding sentence will not relieve Merchant of its payment obligations under this Agreement.

8.3 In the event of a material breach by either party, the non-breaching party will have the right to terminate the applicable Order, multiple Orders or this Agreement for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail. If Toast terminates an Order or this Agreement for Merchant's material breach, Merchant will remain responsible for processed transaction, including Chargebacks and all Fees.

8.4 Upon any termination or expiration of an Order or this Agreement, Merchant's right to access and use the Services covered by that Order or all Orders if termination or expiration of this Agreement, 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, accrued rights to payment, use restrictions, confidentiality obligations, warranty disclaimers and limitations of liability. 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, Toast will permit Merchant to access the Services solely to the extent necessary for Merchant to retrieve a file of Merchant Data then in Toast's possession. 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. 

  

9. Representations, Disclaimer of Warranties 

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


9.2 Toast further represents and warrants to Merchant that the Services 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. Merchant’s sole and exclusive remedy for breach of this representation and warranty will be limited to Toast correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Section 8.2 above. Any Hardware sold by Toast to Merchant hereunder will be covered by Toast’s Limited Warranty Policy made available at pos.toasttab.com/limited-warranty.


9.3 Merchant further represents and warrants 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 is its name or business name under which it sell goods and services.


9.4 Toast does not warrant that the 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, will apply.


9.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TOAST AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. 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 RESULTS MERCHANT MAY OBTAIN BY USING THE 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 WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE 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 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, THE SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.

 

10. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT AND DAMAGES ARISING FROM A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID IN THE PRECEDING 12 MONTHS (the “GENERAL CAP”).  IN NO EVENT will toast’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH A SECURITY BREACH (AS DEFINED BELOW), ITS CONFIDENTIALITY OBLIGATIONS, merchant DATA OR ANY VIOLATION OF ANY APPLICABLE lawS and operating ruleS that is privacy related, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EXCEED 2,000,000 U.S. DOLLARS (“mERCHANT dATA CAP”). ALL DAMAGES, COSTS AND OTHER AMOUNTS PAID BY TOAST TOWARDS TOAST’S GENERAL CAP WILL BE COUNTED TOWARDS THE MERCHANT DATA CAP AND ALL DAMAGES, COSTS AND AMOUNTS PAID BY TOAST TOWARDS THE MERCHANT DATA BREACH CAP WILL BE COUNTED TOWARDS TOAST’S GENERAL CAP. 

 

11. Indemnification

11.1 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 alleging 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, Toast will have no obligation under this Section 11.1 or otherwise with respect to any infringement or misappropriation to the extent that it is based upon the use, operation or combination of the Services with software programs, data, equipment, materials or business processes not provided by Toast, if the claim would have been avoided by the use of the Services without such software programs, data, equipment, materials, or business processes. 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 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 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, 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) Toast’s processing activities on behalf of Merchant, (c) the business of Merchant, (d) any sales transaction conducted by Toast on behalf of Merchant, (e) any noncompliance with any Applicable Laws and Operating Rules by Merchant or its Employees, (f) any alleged or actual compromise, unauthorized access, disclosure, theft or unauthorized use of a Card or Customer information, regardless of cause, on Merchant's systems, (g) any infiltration, hack, breach or violation of the processing system of Merchant or any other third-party processor or system, (h) Merchant’s, or any Employees’ or Customers’, breach or nonperformance of any provision of this Agreement, (i) Merchant’s or its Employee’s reliance on any report or other information generated through the Services; or (j) any Tax assessment.

 

12. Confidential Information

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). 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 Policy. The Disclosing Party agrees that the foregoing will not apply with respect to Confidential Information after five (5) years following the termination of this Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by Applicable Laws and Operating Rules.

 

13. Security; Data Incidents 

Each party will use reasonable measures, as are consistent with Applicable Law and Rules and industry data security practices applicable to Merchant Data, to prevent the loss, theft or unauthorized use or disclosure of any Merchant Data in its possession (each a “Security Breach”).  Each party (the “Security Breach Party”) will notify the other party within two (2) business days (unless Applicable Law and Rules would require notification more promptly) after becoming aware of any facts or circumstances indicating that a Security Breach has or may have occurred and will provide the other party a detailed description of the Security Breach, the Merchant Data accessed, the identity of affected third parties, if any, and such other information as the other party may reasonably request concerning the Security Breach.  The Security Breach Party will (a) mitigate the effects of the breach, (b) commence a forensics investigation of the breach and provide the results thereof to the other party, and (c) correct and identified deficiencies.  Unless prohibited by Applicable Law and Rules, the Security Breach Party will also notify the other party of any third-party legal process relating to any Security Breach of which it becomes aware including, but not limited to, any legal process initiated by any governmental entity (foreign or domestic) and provide the results of any forensic conducted by or on behalf of the Security Breach Party within five (5) days of completion of the audit.  

 

14. Notices 

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 information or by written communication sent by first class mail or pre-paid post to Merchant's address on record in Merchant’s Toast Account information. If Merchant has a dispute with Toast, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Merchant will promptly send written notice to Toast at 401 Park Drive, Suite 801, Boston, MA 02215. Attn: Counsel.

 

15. Force Majeure

Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, embargo, riots, sabotage, utility or transmission disruption, fire 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 such party continues to attempt to recommence performance or observance to the greatest extent possible without delay.

 

16. General Provisions; Arbitration 

16.1 Any action, claim, or dispute related to this Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement.


16.2 Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrators will award to the prevailing party, if any, as determined by the arbitrators, all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees and attorneys’ fees.


16.3 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. The section headings are provided merely for convenience and will not be given any legal import. No joint venture, partnership, employment, or agency relationship exists between Toast and Merchant as a result of this Agreement or use of the Services.


16.4 This Agreement and all Order(s), represent the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully-executed Order by fax or electronic signature will be sufficient to bind the parties to the Standard Terms and Conditions and such Order. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.


16.5 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 of the assigning company related to this Agreement. Any purported assignment in violation of this Section 16.5 will be void.

 

These terms are valid for merchant agreements executed after June 22nd, 2015.

 

Click here to view the terms for agreements signed on or before June 22, 2015.