Effective: September 18, 2019
BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS MERCHANT AGREEMENT (THE “AGREEMENT” OR “MERCHANT AGREEMENT”) OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY TOAST, INC. (“TOAST”), MERCHANT AGREES TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, MERCHANT MAY NOT USE ANY TOAST SERVICES, SOFTWARE OR HARDWARE. CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN SECTION 18 (DEFINITIONS). MERCHANT ALSO AGREES TO ANY ADDITIONAL TERMS SPECIFIC TO SERVICES MERCHANT USES, WHICH ARE INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
- Toast TakeOut Merchant Agreement Addendum: These terms apply to Merchant’s use of the Toast TakeOut mobile application.
THE TERMS OF THE TOAST TAKEOUT MERCHANT AGREEMENT ADDENDUM SHALL GOVERN IF AND TO THE EXTENT THAT CONFLICTING TERMS EXIST.
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 include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees to place orders and process Customer Payments; (b) Toast’s processing of Payments and remitting payment of Net Sales Proceeds to Merchant’s 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.
2. Right to Use the Services
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, non-transferable, 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 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.
2.3. As part of the Services, Toast may provide access to the Toast App. When Employees download or use any Toast App, Merchant must ensure its Employees read and agree to the End User License Agreement, which protect Toast’s rights in the Services and allow use of the Toast App only for the purposes of Merchant and its Employees accessing and using the Services in accordance with this Section 2 and Section 4 below.
3. Implementation and Professional Services
3.1. If Merchant orders any Professional Services under an Order, then, upon request from Toast, Merchant will promptly provide Toast with any information, resources and assistance required by Toast to enable the implementation of the Services or ongoing provision of the Services for Merchant’s purposes as described on the Order and, if applicable, to provide training to 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. Usage Restrictions
4.1. Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; 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; (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; (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 network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface. Services, including without limitation, the structure, sequence or organization of the user interface.
4.2. Merchant represents, warrants and covenants that (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; (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; and (g) 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 Law and Rules, and Merchant is solely responsible for knowing and complying with such Applicable Law and Rules as related to Merchant’s business, its use of Customer Data, and its use of the Services. Except as otherwise permitted by Toast in writing, the payment processing portion of the Services may only be used in the United States of America. As such, 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 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 to handle, process or transmit funds for any third party. Merchant is also prohibited from using the Services to process cash advances.
4.4. Toast will review the information that Merchant submits in connection with Merchant’s request to sign up for the Services and Toast will forward such information on to its processor. Merchant hereby agrees that Toast may share information about Merchant and Merchant’s Bank Account with its processor for the purpose of providing the Services to Merchant. Once Merchant submits its application, Toast or its processor may conclude that Merchant is not permitted to use the Services, in which case Toast may immediately terminate this Agreement and Merchant.
4.5. Merchant will provide any additional information requested by Toast, in connection with Merchant’s application, within five (5) business days following such request (unless required sooner under Applicable Law and Rules), including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also permit reasonable access to Toast to inspect its business location(s) upon request. Merchant and its principal owners authorize Toast to obtain identity-verifying information about Merchant from time to time, including consumer reports on Merchant and its principal owners as required under the Bank Secrecy Act, as the same may be amended, modified, or replaced from time to time.
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 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 personally 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; (b) with respect to each Customer who desires to receive marketing material, enroll in a loyalty program, or receive other communications from Merchant via the Services, such Customer must indicate such affirmative consent via the Toast App; 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 not send unsolicited commercial emails (“UCE”) in violation of the CAN-SPAM Act (2003), as the same may be amended, modified, or replaced, or otherwise send any commercial messages in violation of Applicable Law and Rules, including without limitation the Telephone Consumer Protection Act of 1991 (“TCPA”), as the same may be amended, modified, or replaced, and may only send marketing materials or other communications through the Services to Customers who have provided their contact information via the Toast App in accordance with this Section 4.7. NOTWITHSTANDING THE CAPABILITY OF THE SERVICES TO COLLECT AND STORE CUSTOMER INFORMATION AND TO ALLOW CUSTOMERS TO ELECT TO RECEIVE MARKETING MATERIALS FROM MERCHANT AND TOAST, APPLICABLE LAW AND RULES MAY LIMIT THE USE OF SUCH INFORMATION ONCE COLLECTED, EVEN IF CUSTOMER HAS PROVIDED CONSENT, AND THE DISCLOSURE OF SUCH INFORMATION TO THIRD PARTIES. CUSTOMER SHALL AT ALL TIMES COMPLY WITH SUCH APPLICABLE LAW AND RULES.
5. Ownership: Merchant Data, Customer Data & Trademarks
5.1. As between the parties, Toast 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. 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, and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with performing 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.
5.4. Notwithstanding anything to the contrary in the Agreement, Toast may capture data related to Merchant's, its Employees’, and Customers’ use of the Services and may aggregate, use, disclose, compile, distribute, and publish statistical or analytical data regarding Customers’ use of the Services and may aggregate, use, disclose, compile, distribute, and publish statistical or analytical data regarding the performance, provision, and operation of the Services, on an anonymized, aggregated basis, and may make such information publicly available, provided that such information does not directly identify Merchant's Confidential Information or Personal Information. Toast retains all Intellectual Property Rights in such anonymized, aggregated data.
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 identifying 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.
6. Billing and Payment
6.1. Merchant will pay all Fees set forth in each Order. All Fees are non-cancelable and non-refundable, except as otherwise provided for
herein. 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 Software subscription Fees to access and use the Services will remain unchanged during the Initial Term of this Agreement. Toast reserves the right to: (i) change, on a pass-through basis, any third-party fees at any point during the Term; and (ii) change any other Fees upon thirty (30) days’ prior written notice. Merchants continued use of the Services subsequent to any change in Fees 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. If Merchant does not accept such Fee change under sub-section 6.2(ii), then Merchant may terminate this Agreement by providing Toast written notice prior to the effective date of such Fee change, and in such event the Early Termination Fee under sub-section 8.4 shall not apply, and Merchant shall only be liable to Toast for the payment of Fees for Services provided through the effective date of termination.
6.3. All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees 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 Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys’ fees and costs. 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 (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.
6.5. If in a given calendar year Merchant receives (a) more than $20,000 in net Card Payments and (b) more than 200 Payments, Toast may report annually to the Internal Revenue Service as required by Applicable Law and 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 the applicable calendar year.
6.6. If Merchant financed its original purchase of the Toast Hardware and/or Services 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 monthly in advance, which Toast shall collect via ACH debit from Merchant’s Bank Account.
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 to Toast of any Fees, and for Merchant to receive any Net Sales Proceeds. 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 authorization under this Section 7.1 will remain in full force and effect during the Term.
7.2. Toast works with any 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 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. Merchant’s failure to settle payments in a timely manner may result in higher processing rates charged by the card processing networks and Toast reserves the right to recoup such charges from Merchant, including by offsetting such amounts against Net Sales .
7.4. If Merchant has not provided goods or services consistent with this Agreement with respect to a particular transaction(s), Toast will have the right to refuse to pay any Net Sales Proceeds to Merchant 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, 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 complete its investigation or resolve the dispute. Toast also may defer payout or restrict access to Merchant funds as required by Applicable Law or Rules or court order, or if otherwise requested by law enforcement or government 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 (1) 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. 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 require that Merchant must maintain a Reserve to secure the performance of its payment obligations under this Agreement. Toast, using its reasonable discretion, 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 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 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 or its processor may determine or require.
7.8. For any transaction that results in a Chargeback, Toast may withhold the Chargeback amount. 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 either Merchant’s Toast Account or Bank Account (including without limitation any Reserve), or 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 disputed 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, in which case Toast will retain the funds; (b) the period of time under Applicable Law and Rules by which Customer may dispute 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, Toast may deduct the full amount of the applicable Chargeback from Merchant’s Bank Account in accordance with Section 7, 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 deficit balances that are unpaid by Merchant.
7.9. 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 accordance with sub-section 7.8, and/or (c) delaying payouts.
7.10. 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 in accordance with Section 7.8. 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 will charge a fee for mediating and/or investigating Chargeback disputes.
7.11. Toast may decide not to authorize or settle any transaction that Merchant submits to Toast if Toast reasonably 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 without limitation fraud, a violation of individual or proprietary rights 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.
7.12. The card processing networks require that Merchant and Toast comply with all Applicable Law and Rules. Significant portions of such 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, including without limitation assessing a surcharge for the use of a Card in connection with any transaction.
7.13. Merchant, using its reasonable discretion, may use the Services from time to time to conduct point-of-sale activities offline (“Off-Line Mode”); transactions initiated in Off-Line Mode 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 in Off-Line Mode.
7.14. Toast will employ commercially reasonable efforts to rectify processing errors that Toast becomes aware of. 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 resulted in Merchant’s receipt of more than the amount to which Merchant was entitled, Toast will debit the excess funds from Merchant’s Bank Account without advance notice to Merchant. 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 Merchant’s electronic transaction history will be deemed a waiver of any right to amounts owed to Merchant for such error.
8. Term and Termination; Suspension; Survival
8.1. The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of the 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 the 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) 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, and 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 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 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; (d) Merchant violates Sections 2, 4, 7.11 or 12; or (e) for any reason upon ninety (90) days’ prior written notice to Merchant.
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(s), and/or 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 effective date of termination, to the extent such Software Fees have been paid in advance.
8.4. By executing an Order Form or Toast Master Agreement, Merchant agrees to pay Toast all Hardware and Software Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Initial Locations indicated therein, and for the entire duration of the then-current Term. Merchant acknowledges and agrees that it may terminate this Agreement and any applicable Order(s) at any time during the Term, subject to payment to Toast in an amount equal to all Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, plus any additional Fees for Services provided through the date of termination (e.g., Fees for professional services and Card processing).
8.5. Upon any termination or expiration of an Order 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 4 (Usage Restrictions), Section 5 (Ownership; Merchant Data, Customer Data & Trademarks), rights to any payments of Fees or Net Sales Proceeds earned up to the date of termination, Section 9 (Disclaimer of Warranties), Section 10 (Limitation of Liability), Section 12 (Confidential Information), Section 15 (Notices) and Section 16 (General Provisions). 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 and exclusively to the extent necessary for Merchant to retrieve a copy of Merchant Data then in Toast's possession. Subject to Section 7.6, 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. 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 8.2 above. Any Hardware sold by Toast to Merchant hereunder is covered by Toast’s Limited Warranty Policy available at https://pos.toasttab.com/limited-warranty, which is hereby incorporated by reference and made part of this Agreement.
9.3. Merchant further 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 is its name or business name under which it sells goods and/or 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, 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, TOAST AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPIED 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
10.1. 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, or (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.. 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 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 Law and 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 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 attributable to the acts and/or omissions and/or failure to act of Merchant, including without limitation any compromise of access credentials; (h) Merchant’s, or any Employees’, 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
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 and Customer Data, to prevent a Data Breach. Each party (the “Data Breach Party”) will notify the other party as soon as reasonably practicable under the circumstances (unless Applicable Law and Rules would require notification more promptly) after becoming aware of any facts or circumstances indicating that a Data Breach has or may have occurred and will provide the other party a detailed description of the Data Breach, the Merchant Data and/or Customer Data accessed (if any), the identity of affected third-parties, if any, and such other information as the other party may reasonably request concerning the Data Breach. The Data 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 when available, and (c) employ commercially reasonable efforts to correct any identified deficiencies. Unless prohibited by Applicable Law and Rules, the Data Breach Party will also notify the other party of any third-party legal process relating to any Data Breach of which it becomes aware including, but not limited to, any legal process initiated by any government entity (foreign or domestic) and provide the results of any forensic investigation conducted by or on behalf of the Data Breach Party within five (5) days of completion of the investigation.
14.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” 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, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Merchant may assert individual claims in small claims court, if Merchant’s claims qualify. 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.
14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. 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 emailing Toast’s support team at firstname.lastname@example.org. 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. (“Notice Address”). 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 the not limited to, issues relating to 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. 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.
16. Force Majeure
Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire or any other similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.
17. General Provisions
17.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts or choice of law provisions, and controlling U.S. federal law. 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. 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, 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 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.
17.5. Electronic Signature. Original signatures transmitted and received via electronic transmission of a scanned document (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.