Effective: March 1, 2018
BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS MERCHANT AGREEMENT (THE “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).
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:
1.1 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, 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.
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.
If Merchant orders any Professional Services under an Order, then promptly after the effective date of this Agreement
Merchant will provide Toast with any information, resources and assistance required by Toast to enable the
implementation 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. If and to the extent of any default or breach
on the part of Toast under this Agreement, 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 and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ 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.
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 Laws 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.
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
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
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) or otherwise send any commercial messages in violation of Applicable Law and
Rules, including without limitation the Telephone Consumer Protection Act of 1991 (“TCPA”), 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 LAWS 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 LAWS AND RULES.
5. Ownership; Merchant Data, Customer Data & Trademarks
5.1 Toast 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 or improvements thereof), and Professional Services
provided under the Agreement. 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 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.
5.3 Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both Toast and
responsible for putting in place a separate policy governing such use of Customer Data for its Customers.
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 the performance, provision, and operation of the Services 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
5.5 Merchant hereby grants Toast a nonexclusive 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 & Payment
6.1 Merchant will pay all Fees set forth in each Order, and if applicable, in the lease agreement. 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. 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, (excluding taxes based on
Toast's income) (“Taxes”). 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 Laws 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 reclaim such charges from Merchant.
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 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 Laws and 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, 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 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
(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 7.9. 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
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 assessing a surcharge for the use of a Card in connection with
any transaction. Customer agrees to pay all such surcharges.
7.13 Customer agrees that 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 financial institution, as well as the
applicable Card issuing banks. 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, (d) to conduct Toast's
risk management process, and (e) for use in connection with a Merchant’s related financing, lending or rental
agreement, if applicable.
7.14 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
7.15 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 & 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 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 detail. 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
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: 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 14
(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
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 (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 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
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
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 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.
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 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, 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 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 such claim, (iv) allegations of infringement made by a
non-practicing entity, or (v) the failure of Customer 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
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 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 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 of Merchant, (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.