Effective: October 29, 2020
BY EXECUTING AN ORDER FORM AND MERCHANT APPLICATION AND/OR MASTER SERVICES AGREEMENT THAT INCORPORATES THIS MERCHANT AGREEMENT (THE “AGREEMENT” OR “MERCHANT AGREEMENT”) OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY TOAST, INC. (“TOAST”), MERCHANT AGREES TO BE BOUND BY AND COMPLY WITH THE FOLLOWING: THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PAYMENT PROCESSING TERMS, THE TOAST PRIVACY STATEMENT, THE TOAST TAKEOUT TERMS OF SERVICE, AND ALL OTHER TERMS, CONDITIONS, AND POLICIES PERTAINING TO THE SERVICES AS DESCRIBED HEREIN, ALL OF WHICH ARE INCORPORATED INTO THIS MERCHANT AGREEMENT BY REFERENCE (COLLECTIVELY, “ADDITIONAL TERMS”), AS APPLICABLE TO THE SPECIFIC SERVICES MERCHANT USES.
IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ANY ADDITIONAL TERMS, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY TOAST SERVICES, SOFTWARE OR HARDWARE. CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN SECTION 18 (DEFINITIONS). WHERE APPLICABLE, CERTAIN REFERENCES TO TOAST MAY ALSO BE DEEMED TO INCLUDE TOAST’S BANK PARTNERS AND/OR PAYMENT PROVIDER(S), WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE TO MERCHANT. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS MERCHANT HAS AGAINST TOAST TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TOAST ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Merchant and Toast hereby agree as follows:
The Agreement applies to and governs Merchant's access to and use of the Services, Hardware, and Professional Services ordered by Merchant under an Order. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees to place orders and process 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. Furthermore, regarding Hardware being shipped to the Merchant, Merchant agrees that change of title and ownership, and risk of loss, shall transfer to Merchant at the point of shipment.
2.3. As part of the Services, Toast may provide access to the Toast Platform, including certain Toast Apps. When Employees download or use the Toast Platform or any Employee-facing Toast App, Merchant must ensure its Employees read and agree to the End User License Agreement, which protects Toast’s rights in the Services and allows use of the applicable 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.
2.4. As part of the Services, Toast may from time to time communicate with Merchant using the contact methods provided by Merchant at the time of application and/or during Merchant’s use of the Services, Hardware or Professional Services. Merchant expressly agrees that if it or any of its Employees provide a mobile phone number or email address to Toast, Toast is authorized to contact Merchant or Employees, including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Merchant.
3. 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 (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the Toast Platform or other aspects of the Services); (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the Toast Platform or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or Toast’s network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user Platform.
4.2. Merchant represents, warrants and covenants that (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; and (h) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant’s obligations under this Agreement. 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 via an Order Form, in connection with Merchant’s request to sign up for the Services, and Toast will forward such information on to its payment provider(s). Merchant hereby agrees that Toast may share information about Merchant and Merchant’s Bank Account with its payment provider(s) for the purpose of providing the Services to Merchant. Once Merchant submits its Order Form, which includes the merchant application, Toast or its payment provider(s) may conclude that Merchant is not permitted to use the Services, in which case Toast may decide in its sole discretion to discontinue entering into an Agreement with Merchant, or if an Agreement has already been formed, may immediately terminate this Agreement.
4.5. Merchant will provide information requested by Toast, in connection with Merchant’s application or ongoing business thereafter, within five (5) business days following such request (unless required sooner under Applicable Law and Rules), including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also provide Toast with access to inspect Merchant’s business location(s) upon request. Merchant and its beneficial owners, including persons having greater than a 25% ownership stake and/or control persons having significant responsibility to control, manage or direct a legal entity customer, authorize Toast to obtain, and will provide to Toast upon request, identity-verifying information about Merchant and its beneficial owners from time to time, including documentation as necessary, consumer reports on Merchant and beneficial owners including information relative to criminal history, or any other information necessary to comply with the requirements of the Bank Secrecy Act, as amended by the US PATRIOT Act of 2001, or as otherwise amended, modified, or replaced from time to time, as well as requirements of the Office of Foreign Assets Control.
4.6. Toast may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. Toast will not be liable for any such interruptions, delays, errors or bugs. Toast may contact Merchant in order to assist Toast with the Services and obtain information needed to identify and fix any errors. The Services do not function with every mobile device and may only be used on approved Toast Hardware. Toast may alter which Hardware is approved as compatible with the Services in Toast’s discretion from time to time, subject to reasonable notice.
4.7. Merchant will comply with the following requirements in connection with its use of the Services: (a) with respect to each Customer who requests the delivery of transaction receipts via text message or email, such Customer must individually enter his or her Customer Data in the appropriate space displayed on the applicable device; Merchant and/or Employees are NOT permitted to add or modify any Customer Data (including but not limited to phone number and email address) on behalf of a Customer unless requested by the Customer; (b) any communications provided to Customers as part of the Services (e.g. marketing, enrollment in a loyalty program) who desire to receive marketing material, enroll in a loyalty program, or otherwise receive communications from Merchant as part of the Services, must have provided their contact information as part of the Services and have consented to these communications as required by applicable law; Merchant and/or Employees are NOT permitted to add or modify a Customer's consent indication on his or her behalf unless specifically requested by Customer; (c) Merchant shall not send any communications, including transactional or commercial messages, to Customers in violation of Applicable Law and Rules, including without limitation the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act (2003) and Canada's anti spam legislation contained in An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced); (f) if Merchant is located in Canada and its loyalty program includes points used by guests to purchase goods or services from Merchant, Merchant may not terminate the points under such program by the passing of time alone unless the goods or services obtained through such points are, individually, worth less than $50 Canadian; (g) to the extent required by Applicable Law and Rules, if Merchant amends or terminates its loyalty program, Merchant will provide reasonable notice of such change or termination of its loyalty program to guests; and (h) to the extent required by Applicable Law and Rules, if Merchant terminates its loyalty program, Merchant will not reinstate its loyalty program within a year of such termination unless it has retained sufficient information to reinstate the points of any prior participant in its terminated program. Merchant agrees to send any communications, including transactional or commercial messages, to Customers in a manner consistent with the purposes for which the Customer has provided consent or has provided their information.
5. Ownership: Merchant Data, Customer Data & Trademarks
5.1. As between the parties, Toast (and/or its licensors) owns or has license to all rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, Services (including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of Toast), and Professional Services provided under the Agreement, all of which shall and is expressly intended to remain vested in Toast. 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 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.
5.3 Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both Toast and Merchant will collect, store and use Customer Data. To the extent Merchant’s use of the Customer Data is outside the scope described in this Agreement or within Toast’s Privacy Statement, Merchant shall be solely responsible for putting in place any additional controls (e.g. notice, consent) and governance in relation to such use. Each Party’s use of Customer Data shall be in compliance with the Applicable Law and Rules.
5.4. Notwithstanding anything to the contrary in the Agreement, Toast may create anonymized or aggregated data from Merchant Data, Customer Data and Personal Information that does not identify Merchant, any of your users or Employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across Toast, our Merchant customers and partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Hardware or Services, the development of new Services or Hardware or otherwise. Upon creation, as between Merchant and Toast, Toast shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to Merchant or restriction of any kind.
5.5. Merchant hereby grants Toast a nonexclusive, royalty free right and license to use and display Merchant’s Marks on its website and marketing collateral, or to otherwise identify Merchant as a customer of Toast. Toast obtains no rights in the Merchant Marks except for the limited right described in this sub-Section 5.5., and Merchant retains all right, title and interest in and to the Merchant Marks. All use of the Merchant Marks by Toast will inure to Merchant.
5.6. Merchant agrees and acknowledges that any use or display by Merchant of a trademark or other mark owned by the Payment Network(s) shall comply with the rules and regulations issued by such Payment Network and shall cease use of and remove all such trademark(s) from display upon termination of this Agreement.
6. 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. However, Toast reserves the right to change any other Fees and/or processing rates upon thirty (30) days’ prior written notice to Merchant. Such notice will include the effective date of the change(s). Merchant’s continued use of the Services subsequent to any change in Fees and/or processing rates, as applicable, will be deemed acceptance of such changes unless Merchant closes its Toast Account prior to the effective date of such change and ceases all access to and use of the Services. If Merchant does not accept such Fee and/or rate change under this sub-Section 6.2, then Merchant may terminate this Agreement by providing Toast written notice prior to the effective date of such Fee and/or rate change, and in such event the Early Termination Fee under sub-Section 8.4 shall not apply (other than the processing fee for Software financing), and Merchant shall only be liable to Toast for the payment of Fees and/or rates for Services provided through the date of Merchant’s notice of termination.
6.3. All amounts invoiced hereunder are due and payable as specified in the applicable Order. In the event that Toast inadvertently did not provide Merchant with an invoice, or Merchant did not otherwise receive an invoice from Toast, Merchant is still responsible for paying any Fees and/or other amounts due based on Services provided. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month (or 19.56% annually) on any outstanding balance, or the maximum permitted by Applicable Law and Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys’ fees and costs. Such unpaid invoices, finance charges and expenses may be deducted from the deposit of any Net Sales Proceed under Section 5 of the Payment Processing Terms.
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 receives for each month in the applicable calendar year. Such criteria and thresholds noted above may vary, depending on applicable state law. Merchant further acknowledges and agrees that Toast may take action in accordance with Applicable Law and Rules, including initiating backup withholding, when appropriate.
6.6. If Merchant financed its original purchase of the Software during the Initial Term, then upon the first Renewal Term and for each Renewal Term thereafter, Merchant’s payment terms for Software Fees shall revert to billed monthly in advance, which Toast shall collect via ACH debit from Merchant’s Bank Account.
6.7. If Merchant elects to purchase Services through a Pay-as-you-go Subscription, Merchant acknowledges that the Fee offered will constitute and be comprised of Software Subscription Fees and Card processing rates, except as otherwise disclosed in this Agreement or in other applicable terms. Pay-as-you-go subscriptions may be subject to an inactivity Fee, which will be assessed in the event Merchant fails to meet required Card processing minimums. Pay-as-you-go subscriptions do not constitute an offer of credit, nor do they constitute an equipment lease or loan for goods or services provided. Except as otherwise provided in this Agreement, or expressly stated in any other applicable terms, Toast shall enforce Merchant’s liability for Pay-as-you-go Platform Fees consistent with sub-Section 6.3 herein, and shall not seek recourse against Hardware purchased in a Pay-as-you-go Order.
7. Payment Processing
7.1. Payment Processing Terms are located at the link set forth in the Definitions Section.
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 this Agreement. The initial term of an Order will commence upon the earlier of: (i) the Contract Start Date (as defined in the Order), or (ii) the Go- Live Date and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for remainder of the initial term outlined in the Order (the “Initial Term”). Thereafter, the term of this Agreement with respect to such applicable Order(s) and the then-current version of the Merchant Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”; collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”); provided, however, that either party may terminate an Order, 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; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the Toast Account registration requirements, as determined in Toast’s sole discretion; (c) Toast determines that Merchant is incurring excessive Chargebacks; (d) Merchant violates Sections 2, 4, 7 or 12; or (e) for any reason upon ninety (90) days’ prior written notice to Merchant. As determined it its sole discretion, Toast, its payment provider(s), and/or one or more Payment Network(s) may terminate this Agreement immediately and without notice for any suspected issues that could potentially cause a violation of this Agreement, the Payment Network rules, any law or regulation, or may impose a potential security threat, data breach, fraud or other crime, or damage to the Payment Network(s).
8.3. In the event of a material breach of this Agreement by either party, the non-breaching party will have the right to terminate the applicable Order(s), and/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 date of termination, to the extent such Software Fees have been paid in advance.
8.4. By executing an Order and/or Toast Master Agreement, Merchant agrees to pay Toast all Hardware and Software Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Locations indicated therein, and for the entire duration of the then-current Term. Unless otherwise agreed to by Toast, Merchant acknowledges and agrees that it may terminate this Agreement and any applicable Order(s) at any time during the Term, provided that Merchant shall remain responsible for payment of all Fees for Services provided by Toast through the date of Termination. Additionally, Merchant shall incur and pay 1) an early termination fee equal to either i) the remaining Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, or ii) for a Pay-as-you-go subscription, one-hundred and fifty dollars ($150.00) multiplied by the number of months remaining in the then-applicable Term, as applicable (“Early Termination Fee”), and 2) any applicable processing fee related to Software financing.
8.5. Upon any termination or expiration of an Order and/or this Agreement, Merchant's right to access and use the Services covered by the applicable Order(s) will terminate. Upon any such termination or expiration, all Sections of this Agreement which by their nature should survive termination or expiration will survive, including without limitation, the following Sections: Section 18 (Definitions), Section 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 (Arbitration), 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, to the extent Merchant is otherwise unable to access the information itself, Toast will permit Merchant to access the Services solely and exclusively to the extent necessary for Merchant to retrieve a copy of Merchant Data, Customer Data, and any other data, materials, and information collected by the Merchant as part of the Services and contained in Merchant’s Toast Account. Subject to the Payment Processing Terms, 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. Merchant represents, warrants and covenants to Toast that (a) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; and (b) the name identified by Merchant when Merchant registered is its legal name or business name under which it sells goods and/or services.
9.3. Limited Warranty. Toast represents, warrants and covenants to Merchant that, during the Term, the Software Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by Toast to Merchant, as the same may be updated by Toast from time to time in the ordinary course of business (together the “Specifications”). Merchant’s sole and exclusive remedy for Toast’s breach of this limited warranty is limited to Toast correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Section 8.3 above. 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.
9.4. 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 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
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.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, TOAST’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO TOAST IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
11.1. Toast Indemnification. Toast will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party claims brought against Merchant by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes the copyright or misappropriates the trade secret rights of such third party, and Toast will pay all costs (including reasonable attorneys’ fees) and damages finally awarded against Merchant by a court of competent jurisdiction as a result of any such claim or payable by Merchant pursuant to a settlement agreement to which Toast agrees in writing in settlement of such claim; provided, that Merchant (a) promptly gives written notice of the claim to Toast; (b) gives Toast sole control of the defense and settlement of the claim; and (c) provides to Toast, at Toast's cost, all reasonable assistance. If the Services become, or in Toast’s opinion are likely to become, the subject of an infringement or misappropriation claim, Toast may, at its option and expense, either (i) procure for Merchant the right to continue exercising the rights made available hereunder; (ii) replace or modify the Services so that they become non-infringing or non-misappropriating; or (iii) refund to Merchant the portion of subscription fees paid in advance by Merchant for any unused portion of the then-current term of the Services, if any, whereupon Toast may terminate this Agreement upon written notice to Merchant. Notwithstanding the foregoing, this Section 11.1 shall not apply to any infringement or misappropriation claims arising from (i) designs, specifications, or modifications originated or requested by Merchant, (ii) the combination of the Hardware, Software, and/or Services with other equipment, software or products not supplied by Toast if such infringement or misappropriation would not have occurred but for such combination, (iii) Merchant’s failure to install an update provided by Toast at no additional charge, where same would have avoided or mitigated such claim, (iv) allegations of infringement made by a non-practicing entity, (v) the failure of Merchant to follow any instructions given by Toast to Merchant in relation to such claim, suit, action, or proceeding brought against Merchant, where the instruction would have avoided or mitigated the same, or (vi) any claims that are attributable to Merchant’s gross negligence or willful misconduct. This Section 11.1 represents the sole and exclusive remedy of Merchant and the entire liability and obligation of Toast with respect to infringement and misappropriation.
11.2. Merchant Indemnification. Merchant will indemnify, defend and hold harmless Toast and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities 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 non-compliance with Section 13 of this Agreement, (g) Merchant’s, or any Employees’, breach or nonperformance of any provision of this Agreement; (h) Merchant’s or its Employee’s reliance on any report or other information generated through the Services; (i) any Tax assessment or (j) any claims against Toast related to the use by Toast of any Merchant Data or any of Merchant’s intellectual property.
12. Confidential Information
12.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business under this Agreement. For the avoidance of doubt, Toast’s Confidential Information includes the Services, Hardware, and Customer Data, and any information relating thereto. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information, in each case except as expressly permitted in Section 5, Section 7 or under the Privacy Statement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that the Receiving Party can document (v) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (w) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (x) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (y) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records.
12.2. Notwithstanding any provision of this Agreement to the contrary, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its Representatives who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential, consistent with the terms of this Agreement; (ii) as required by law (in which case each party shall, if permitted by Applicable Law or Rules, provide the other with prior written notification thereof and the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure in each case to the extent permitted by applicable law, and (iii) in accordance with Toast’s Privacy Statement. The Receiving Party will remain primarily responsible for any breach of this Section 12 by any of its Representatives with whom it shares the other party’s Confidential Information as permitted by this Section 12.2.
13. Data Privacy & Security
13.1. As part of this Agreement and Merchant’s use of the Services (including the provision and use of Merchant Data and Customer Data), Merchant shall comply with all applicable Data Privacy and Security Laws, and not by any act or omission, put Toast in breach of the applicable Data Privacy and Security Laws.
13.2. Toast will collect, process and retain Personal Information pursuant to Toast’s Privacy Statement, which describes what Personal Information Toast collects and manages as part of providing our Services. Merchant and its Employees are encouraged to read the Privacy Statement carefully, as it forms a binding part of this Agreement and contains important information about individuals’ rights and how Toast manages Personal Information.
13.3. Merchant agrees that it will collect, store and use Personal Information collected as part of this Agreement and the Services in a manner consistent with the applicable Data Privacy and Security Laws and the practices described in Toast’s Privacy Statement. If Merchant elects to use Personal Information beyond the scope of Toast’s Privacy Statement, Merchant is solely responsible for its compliance with the applicable Privacy and Data Security Laws and any compliance obligations associated with the collection, use or processing of that Personal Information.
13.4. Where requested by Toast, Merchant shall provide Toast with reasonable assistance and cooperation in relation to Toast’s compliance with the applicable Data Privacy and Security Laws, including but not limited to support with individual rights requests or notifications from any governmental, regulatory or law enforcement authority pertaining to Toast and our provision of the Services and use of Personal Information as described in this Agreement. In the event Merchant receives any such request or notification, unless otherwise prohibited by law, Merchant shall notify Toast and shall not respond to the party making the request.
13.5. Merchant is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant’s obligations under this Agreement. For the avoidance of doubt, this includes access controls and ensuring that only those individuals that need access to Customer Data are provided with such access. In all cases, this obligation shall not limit Merchant’s obligations regarding the implementation of any security measures required under the Data Privacy and Security Laws.
13.6. If Merchant (whether directly or through a third party) discovers or becomes aware of a Security Incident, Merchant shall promptly notify Toast and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement. This includes complying with all applicable requirements of the Agreement as well as cooperation with the investigation of the Security Incident. Merchant shall provide reasonable support with remedying a Security Incident when Customer Data is involved. To the extent any Security Incident is attributable to the acts or omissions of the Merchant, Merchant shall bear all costs associated with remedying the Security Incident and complying with its legal obligations under the applicable Data Privacy and Security Laws.
13.7. To the extent permitted under this Agreement, if Merchant utilizes any third parties outside of those engaged by Toast to perform processing or services related to the Services or Customer Data, Merchant shall ensure that the third-party relationship is subject to a written agreement that contains at least the same level of privacy and security-related obligations imposed on Merchant under this Agreement. In all cases, Merchant shall remain responsible for any acts or omissions of such third parties to the same extent as if such acts or omissions were performed by Merchant.
13.8. As part of this Agreement, Toast shall, with reasonable notice, have the right to perform an audit of Merchant’s facilities, systems and personnel to verify Merchant’s compliance with this Section if it has a reasonable suspicion of a breach or potential breach of the terms of this Agreement. Merchant will provide full cooperation to Toast and its representatives in connection with any such audit.
14.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Except where prohibited by Applicable Law and Rules, Merchant agrees that any and all disputes or claims that have arisen or may arise between Merchant and Toast, whether arising out of or relating to this Agreement or in connection with Merchants use of the Services or our websites, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, 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. In any event, any action or proceeding by Merchant against Toast relating to any dispute must commence within one year after the cause of action accrues.
14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by Applicable Law and Rules, Merchant and Toast agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and Toast agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
14.3. Pre-Arbitration Dispute Resolution. Toast is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by contactingToast’s support team at Toast Central located at central.toasttab.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to Toast should be sent to Toast at 401 Park Drive, Suite 801, Boston, MA 02215, Attn: General Counsel. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Toast and Merchant do not resolve the claim within sixty (60) calendar days after the Notice is received, Merchant or Toast may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Toast or Merchant shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Merchant or Toast is entitled.
14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. 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, unforeseen vendor issues, pandemic or any other similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.
17. 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. Except as set forth in Section 14, the parties agree that the federal or state courts in the city of Boston shall have exclusive jurisdiction to hear and determine any dispute between them. The Uniform Computer Information Transactions Act, and the United Nations Convention on the International Sale of Goods, shall not apply to this Agreement.
17.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement. The Section headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement. No joint venture, partnership, employment, or agency relationship exists between Toast and Merchant as a result of this Agreement or use of the Services.
17.3. Entire Agreement. This Agreement and all Order(s), together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties' entire understanding relating to the Services and the subject matter hereof and thereof, and supersede any prior or contemporaneous, conflicting, or additional communications, whether written or verbal, and will control over any different or additional terms of any non-Toast ordering document, and no terms included in any such purchase order or other non-Toast ordering document will apply to the Services or Hardware. The exchange of a fully-executed Order by fax or electronic signature will be sufficient to bind the parties to the Merchant Agreement and such Order. With the exception of fee and rate changes described in Section 6.2, this Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable, then such provision(s) will be deemed to be restated and construed to reflect the original intentions of the parties in accordance with Applicable Law and Rules with respect to the invalid or unenforceable provision(s), and with all other provisions of this Agreement remaining in full force and effect.
17.4. Assignment. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of the assets or shares of the assigning company related to this Agreement. Any purported assignment in violation of this Section 17.4 will be null and void and without force or effect.
17.5. Electronic Signature. Signatures transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSign, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.
17.6. Representatives. Each party shall be primarily responsible for each of its respective Representatives’ compliance with this Agreement.