Effective as of: 7 May 2025
BY EXECUTING AN ORDER FORM AND/OR MASTER SERVICES AGREEMENT, IN EACH CASE THAT INCORPORATES THIS MERCHANT AGREEMENT BY REFERENCE (THE “AGREEMENT” OR “MERCHANT AGREEMENT”), BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY TOAST AUSTRALIA PTY LTD (“TOAST”), MERCHANT (AS IDENTIFIED IN THE ORDER FORM) AGREES TO BE BOUND BY AND COMPLY WITH THE FOLLOWING: THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALL ORDER FORMS, THE TOAST MASTER SERVICES AGREEMENT (IF APPLICABLE), THE TOAST PRIVACY STATEMENT 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, THE “ADDITIONAL TERMS”) AND THE PAYMENT PROVIDER AGREEMENT, AS APPLICABLE TO THE SPECIFIC SERVICES MERCHANT USES.
IF THIS AGREEMENT IS BEING ACCEPTED ONLINE BY CLICKING A BOX, THE INDIVIDUAL CLICKING THE BOX ACKNOWLEDGES THAT HE, SHE OR THEY IS ENTERING INTO THIS AGREEMENT ON BEHALF OF MERCHANT AND REPRESENTS AND WARRANTS THAT HE, SHE OR THEY HAS THE AUTHORITY TO BIND MERCHANT TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT ACCEPT THIS AGREEMENT ON BEHALF OF MERCHANT.
IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ANY OF THE 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 THIS AGREEMENT, INCLUDING IN SECTION 17 (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.
MERCHANT ACCESS TO AND USE OF THE PAYMENT PROVIDER SERVICES: MERCHANT ACKNOWLEDGES AND AGREES THAT BY EXECUTING AN ORDER FORM AND/OR MASTER SERVICES AGREEMENT WITH TOAST: (1) MERCHANT CONFIRMS ITS ORDER FOR THE PAYMENT PROVIDER SERVICES, (2) MERCHANT IS ENTERING INTO A SEPARATE PAYMENT PROVIDER AGREEMENT SOLELY WITH THE PAYMENT PROVIDER (AS DETAILED IN ANNEX A OF THIS AGREEMENT), INCLUDING ANY APPLICABLE TERMS AND CONDITIONS INCORPORATED THEREIN AND (3) MERCHANT UNDERSTANDS AND AGREES THAT PAYMENT PROVIDER, NOT TOAST, IS SOLELY RESPONSIBLE FOR THE PROVISION OF THE PAYMENT PROVIDER SERVICES AND THE CONTENT THEREOF. PAYMENT PROVIDER SERVICES MAY ONLY BE USED FOR BUSINESS PURPOSES IN AUSTRALIA.
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 in Australia. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees and Customers to place orders and process Payments; (b) providing Merchant with access to the Payment Provider Services (includes but not limited to payments processing and Settlement by Payment Provider to the Merchant` 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 or Merchant’s Payment Provider Account.
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 16.7 below), non-sublicensable, non-exclusive, revocable licence during the Term to permit Employees to access and use the Services solely and exclusively for Merchant’s internal business purposes in Australia. The Services are licensed, not sold, and Merchant acknowledges that it does not acquire any licence to use the Services in excess of the scope and duration of the licence to the Services specified in the Agreement. This licence 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, Payment Provider Terminals 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 Furthermore, regarding Hardware and Payment Provider Terminals being purchased by Merchant under an Order Form, Merchant agrees that change of title and ownership shall transfer to Merchant at the point of shipment by Toast. Risk transfers to the Merchant on delivery of goods (Hardware Payment Provider Terminals) to the Merchant`s nominated location.
2.4. 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 (inclusive of its Schedule 1 - Country Specific Terms Australia provisions) on their own behalf or on behalf of Merchant, as applicable, which protects Toast’s rights in the Services and allows use of the applicable Toast App only for the purposes of Merchant (including its Employees) accessing and using the Services in accordance with this Section 2 and Section 4 below; and ensure that its Employees read and acknowledge the Privacy Statement which contains information about how Toast carries out processing of Personal Information as a Processor (as defined in the GDPR) in relation to Employees.
2.5. 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, Payment Provider Terminals 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.
3.1. 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 in 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.
4.1. Neither Merchant nor its Employees will, 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 reasonable operating procedures or requirements regarding Merchant’s use of the Services that are notified by Toast to Merchant (including as posted on or through the Toast Platform or otherwise provided or made available to Merchant), including, without limitation, any action or inaction taken contrary to the requirements of PCI DSS; (g) alter, distribute, licence, 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 interface of the Platform.
4.2. Merchant represents, warrants and covenants that with respect to the Services and the Payment Provider Services (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 and Merchant is duly licensed and qualified to carry out its business operations and perform its obligations hereunder; (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; (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, the Payment Provider Terminals and Merchant’s obligations under this Agreement. Merchant acknowledges and agrees that Merchant is solely responsible for its own compliance with Applicable Law and Rules. Except as otherwise permitted by Toast in writing, the Services and the Payment Provider Services may only be used in Australia; provided, that Toast reserves the right to restrict Merchant`ability to accept certain card payments in Australia states or territories.
4.3. Merchant will use the Services and the Payment Provider Services only for its management and operation of its own business, and not for any business, services or offerings of non-affiliated 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 or the Payment Provider Services to handle, process or transmit funds for any third party and may only use the Payment Provider Services to accept payment for products and services sold by Merchant itself to the Customer and only for the type of products and services Merchant described in its application. Merchant is also prohibited from using the Services to process cash advances.
4.4. Toast will review the information that Merchant submits via the Order Form, in connection with Merchant’s request to sign up for the Services and the Payment Provider Services, and Toast will forward such information on to the Payment Provider. Merchant hereby agrees that Toast may share information about Merchant and the Merchant Bank Account with the Payment Provider for the purpose of providing the Services (and in the case of the Payment Provider the Payment Provider Services) to Merchant or with other third parties for validation purposes. Once Merchant submits its Order Form, which includes the merchant application and related data, Toast or the Payment Provider may conclude that Merchant is not permitted to use the Services (and in the case of the Payment Provider the Payment Provider 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 by notice to Merchant. Merchant shall ensure any information it has provided, including information regarding its Merchant Bank Account, is up to date at all times, shall notify Toast immediately of any changes thereto and authorizes and instructs Toast to share any such changes with its Payment Provider.
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 or by Payment Provider). Merchant acknowledges that, at times, this information may be requested and collected by Toast on behalf of the Payment Provider, including to enable the Payment Provider to comply with ‘know your customer’ and similar requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated rules and regulations, as amended, modified or replaced from time to time. Merchant authorizes and instructs Toast to share any such information with Payment Provider.
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 endeavor to provide the Merchant with reasonable prior notice of any planned maintenance and minimize the interruption caused by such maintenance. 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.
4.7 Merchant may access the Services and the Payment Provider Services only through devices identified by Toast (or by the Payment Provider pursuant to the Payment Provider Agreement) as compatible with and capable of accessing or supporting the Services and the Payment Provider Services using a wired or wireless connection to the internet. The Services and the Payment Provider Services do not function with every mobile device and may only be used on approved Toast` Hardware and Payment Provider Terminals. Toast may alter which Hardware and Payment Provider Terminal is approved as compatible with the Services and the Payment Provider Services in Toast’s discretion from time to time, provided that Toast will give Merchant reasonable notice unless such change is at the direction of the Payment Provider or regulator or due to a change in Applicable Law or Rules. Merchant is solely responsible for (a) the payment of any fees that may be imposed by its internet and/or data provider and (b) its use of the Services and the Payment Provider Services accessed via the internet which is subject to the terms of any agreements in place with such internet and/or data provider and availability and uptime of those services and wireless equipment. Toast does not warrant, endorse, guarantee, or assume responsibility or liability for any product or service advertised or offered by a third party.
4.8. 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) with respect to 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 Service, Customers must have provided their contact information as part of the Services and have consented to such communications as required by Applicable Law and Rules; 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; (d) if Merchant operates a loyalty program it must comply with all Applicable Law and Rules in relation to the implementation, operation and, if applicable, termination, of that loyalty program, including the Australian Consumer Law; and (e) Merchant is solely responsible and liable for marketing, selling, pricing, labelling, maintaining, packaging and provision of any products or services offered to Customers through the Services (and the Payment Provider Services), all in compliance with Applicable Law and Rules. Merchant acknowledges and agrees that Toast is not in any way responsible for, and makes no representation or warranty regarding, whether Merchant holds any required or applicable permit, license, registration or other credential for its business, whether representations by Merchant to its Customers or any third party are true or accurate, or whether Merchant complies with Applicable Law and Rules, and Toast is not responsible for any of the foregoing or the quality of the products or services provided by Merchant to a Customer or any other third party. 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.
4.9 Merchant will abide by Toast’s Community Philosophy. Toast will not tolerate threats, harm, or intimidation tactics towards Toast employees - whether actual, veiled, or implied – including without limitation, derogatory or degrading language, threats, bullying, harassment, and/or intimidation.
4.10 Where applicable, Merchant will hold an active Software subscription license for all Hardware devices. In the event that Merchant does not have an active Software subscription license for all Hardware devices, Toast shall have the right, in its sole discretion, to deactivate such devices.
4.11 Where Toast or Payment Provider becomes aware of and/or receives any notice of a potential exposure to a fine or sanction from the Payment Networks related to Merchant’s behaviour, Merchant will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, including by engaging with the applicable Payment Network and consulting regularly with Toast regarding any alleged violation, notwithstanding all other rights and remedies of Toast in such situation as per the Agreement. If fines are applied for the Merchant’s violations, Merchant shall fully indemnify and hold Toast harmless from any fines applied by the Payment Networks to the extent resulting from Merchant’s breach of the terms of this Agreement and related incurred reasonable legal and other costs.
4.12 Digital Ordering Channels.
4.12.1 Merchant may purchase a subscription to or utilize certain Digital Ordering Channels which: (i) enable Merchant` Customers to place orders for food, beverages and other products and services provided by Merchant (each, a “Purchase”) and (ii) facilitate payment to Merchant by the Customer for those Purchases with a permitted payment method (“Payment Method”) (each, a “Payment Transaction”). Toast facilitates the Purchase process and the Payment Transaction(s) on behalf of Merchant pursuant to the terms of this Agreement.
4.12.2 Purchases and Payment Transactions that a Customer submits through any of the Digital Ordering Channels are transactions between Customer and Merchant, and not with Toast or any of our affiliates. Toast is not the seller of any product or service offered by Merchant and is not a party to any Payment Transaction facilitated through a Digital Ordering Channel. Toast is a third-party service provider facilitating Payment Transactions for Merchant, and is not acting for or on behalf of a Customer in a Payment Transaction.
Toast (i) is not responsible for and does not control any aspect of the products or services sold by Merchant or the description of the products or services offered through the Digital Ordering Channels; and (ii) is not responsible for and does not control whether a Customer will complete a purchase or payment for products or services to Merchant through any Digital Ordering Channel. Merchant may only use the Digital Ordering Channels for its own business purposes and not for personal purposes or the purposes of any other user or merchant.
4.12.3 Alcoholic beverage product purchases are not included in the Digital Ordering Channels as of the date of this Agreement.
4.13 Merchant will abide by: (i) the Toast AI Terms available at https://pos.toasttab.com/ai-terms-aus; and (ii) the Toast Acceptable Use Policy available at https://pos.toasttab.com/toast-acceptable-use-policy-aus which are hereby incorporated by reference and made part of this Agreement. For the purposes of this Agreement the following terms in these AI Terms and the Acceptable Use Policy are changed as follows: “Toast, Inc.” references are replaced with “Toast Australia Pty Ltd” and “Merchant Agreement” means this Agreement.
4.14 Toast, in its sole discretion, may add or remove any of the free of charge Toast` Digital Ordering Channels to a Merchant’s Toast Account or cause Merchant’s business to appear on its platform, including, for example, on its Local App, Toast Local website, and on other Toast owned and controlled websites and surfaces. For the avoidance of doubt, Toast in its discretion may elect to list or not to list Merchant on the Local App.
4.15 Toast may, in Toast’s sole discretion, run promotional offerings, including without limitation offering discounts to Customers on purchases at Merchant Location(s), subject to any terms that Toast establishes on a per-promotion basis (collectively, “Promotions”). In the event that such Promotions include promotional discount(s), Merchant acknowledges and agrees that any money that Toast owes to Merchant pursuant to any Promotion will be credited to Merchant’s Toast Account on the statement for the month following the Promotion or as otherwise communicated by Toast to Merchant. In the event that Toast enables Merchants to facilitate their own promotions, any related features will appear in the Toast discount tool(s) and loyalty program tools that Merchant may use for Digital Ordering Channels. Merchant agrees to comply with and honor the terms of any Promotions, including without limitation the start and end times, and to conduct all promotions in accordance with Applicable Law and Rules.
5.1. As between the parties, Toast (and/or its licensors) retain all rights, title, interest, copyright and all worldwide Intellectual Property Rights in and to the Hardware, Services, and Professional 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 provided under the Agreement. Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns and, to the extent any such assignment cannot be made at present, will assign and transfer all right, title, interest and all worldwide Intellectual Property Rights in and to the Feedback to Toast, 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, Hardware or Professional 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 and its affiliates a non-exclusive, royalty-free, fully paid up, perpetual and worldwide licence and right to use, disclose copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Services including the development of potential offerings or other future Services under consideration by Toast (whether developed independently by Toast or through a third party). 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 (and has made any disclosures) necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used, held or shared, as applicable, by Toast (and its affiliates) as permitted by this Agreement. Merchant will not upload or store any data or materials containing any such information in violation of this Section. To the extent Merchant Data constitutes Personal Information, the Parties’ respective obligations are set out in the Merchant Data Processing Addendum.
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. Merchant shall be solely responsible for compliance with its own legal obligations in relation to such collection, storage, disclosure and use of Customer Data pursuant to Applicable Law and Rules, including 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. Further, the Merchant represents, warrants and covenants that it has all rights (and has made any disclosures) necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used, held or shared, as applicable, by Toast (and its affiliates) as permitted by this Agreement. To the extent Customer Data constitutes Personal Information, the Parties’ respective obligations are set out in the Merchant Data Processing Addendum.
5.4. Notwithstanding anything to the contrary in the Agreement, Toast may create anonymized or aggregated data from Merchant Data, Customer Data and/or Personal Information that does not identify Merchant, any of Customers or Employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across Toast, its 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 products or services 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 licence to use and display Merchant’s Marks on its website, marketing collateral and other public disclosures, 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, 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.
6.1. Merchant will pay all Fees set forth in each Order, including any document cross-referred to in that Order. All Fees are non-cancellable and non-refundable, except as otherwise expressly provided for herein. Merchant will pay all Fees in Australian Dollars or in such other currency as agreed to in writing by the parties.
6.2. Merchant’s Fees for Software subscription(s) will remain unchanged during the Initial Term of this Agreement. Toast reserves the right to change (i) Card processing rates and other non-Software Fees at any time during the Term upon sixty (60) days’ prior written notice to Merchant, and (ii) any Fees at the beginning of, or at any time during, a Renewal Term upon sixty (60) days’ prior written notice to Merchant. In each case, such notice will include the effective date of the change(s). If Merchant does not accept such change(s) made pursuant to this Section 6.2, then Merchant shall provide Toast with written notice, prior to the effective date of such change(s), that Merchant has elected to terminate this Agreement. If Merchant does not provide written notice pursuant to the immediately foregoing sentence, or if Merchant otherwise continues to use the applicable Services (and Payment Provider Services as applicable) subsequent to the effective date of any change in Fees and/or Card processing rates, then Merchant shall be deemed to have accepted such change(s). In the event of a termination by Merchant pursuant to this Section 6.2, the Early Termination Fee under Section 8.4 shall not apply (other than the processing fee for Software financing). In the event Merchant elects to terminate this Agreement, pursuant to Section 6.2, any amounts prepaid by Merchant as of the date of such termination shall be non-refundable and Merchant shall only be liable to Toast for the payment of Fees and/or card processing rates for Services (and Payment Provider Services) provided through the date of such termination.
Notwithstanding anything to the contrary in this Section 6.2, in the event that Toast permits Merchant to modify an Order to remove a product, service or module at any time during the Term (other than in connection with a price increase by Toast as set forth in the immediately foregoing paragraph), Toast shall have the right to propose updated pricing across the Merchant’s remaining products, services or modules, which would then be agreed as part of the modified Order.
6.3. Toast may, and Merchant authorizes and instructs Toast to instruct Payment Provider on Merchant’s behalf to withhold from each Settlement any applicable Fees, amounts based on agreed Card processing rates, other amounts pursuant to Annex A and/or any other amounts as agreed in any Order Form, in whole or in part, and pay such amounts to Toast in satisfaction of the Merchant`s payment obligations for the same. Merchant shall ensure that any instructions provided to Toast in connection with this Agreement are complete, clear and accurate, and correctly reflect the Merchant’s intent. Merchant acknowledges that Toast may rely on all instructions given to Toast by the Merchant and relay any such instructions to Payment Provider. Merchant acknowledges and agrees that Payment Provider is authorized to withhold from each Settlement Chargebacks, Refunds, fines and/or other amounts pursuant to the Payment Provider Agreement, without limitation of Toast’s right to authorize Payment Provider to withhold any applicable Fees, amounts based on agreed Card processing rates, other amounts pursuant to Annex A and amounts as agreed in an Order Form. Without limitation of Toast’s other rights hereunder, Merchant acknowledges and agrees that, to the extent any Settlement is insufficient to cover any such withholdable amounts Toast may instruct the Payment Provider on Merchant`s behalf to withhold such amounts from any subsequent Settlement and to pay such amounts to Toast in satisfaction of the Merchant`s payment obligations for the same or Toast may invoice Merchant separately for the balance thereof, which invoice is due and payable within 5 days of it being issued to Merchant. For clarity, Toast in its discretion may elect to collect any Fees or other amounts due to Toast by electronic or tangible draft pursuant to an invoice or other ordinary commercial arrangement in lieu of or supplemental to Toast’s right to instruct Payment Provider to withhold such Fees or such other amounts from Settlement (without any right of double recovery).
6.4 All amounts invoiced hereunder are due and payable as specified in the applicable Order, including any document cross-referred to in that Order. In the event that Toast inadvertently did not provide Merchant with an invoice, the invoice provided by Toast reflected incorrect amounts owed by Merchant, 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 and Payment Provider Services provided. Unpaid Fees that are not the subject of a written good faith dispute are subject to a late payment interest charge of 8% per year above the cash rate set by the Reserve Bank of Australia 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. Merchant authorizes and instructs Toast to instruct Payment Provider on its behalf to withhold such invoices (including finance charges and expenses specified in such invoices) from the deposit of any Settlement under Section 6 of Annex A. Without prejudice to any right to set-off which Toast may be entitled to as a matter of law, Toast may set-off any amounts due to Merchant (excluding amounts promptly disputed in good faith by the Merchant), including by instructing Payment Provider on Merchant’s behalf to set-off for Toast’s benefit amounts due to Merchant in respect of any Settlement, against any amounts owed or other liabilities of the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to Toast under, in connection to, or pursuant to this Agreement.
6.5. Taxes. Except where the context suggests otherwise, terms used in this Section 6.5 have the meanings given to those terms by the GST Act (as amended from time to time).
GST exclusive
Any consideration or amount payable under this Agreement (including non-monetary consideration and all Fees) are exclusive of any Taxes including any value-added tax, goods and services tax (“GST”) or similarly-related taxes, assessments or charges. Merchant will be responsible for, and agrees to pay, all applicable sales, use, excise, personal property, services, value added taxes, GST, and taxes of a similar nature, and final withholding taxes (excluding personal property and capital taxes on items owned and used by Toast and excluding taxes based on Toast’s net income all of which shall be borne by Toast), imposed by any governmental authority having jurisdiction on any items, goods and/or Services (and Payment Provider Services) being paid for by Merchant hereunder.
GST gross up
If GST is or becomes payable on the Services, Hardware, Payment Provider Terminals and Professional Service made under or in connection with this Agreement, an additional amount (“Additional Amount”) is payable by the Merchant providing the consideration for the Services, Hardware, Payment Provider Terminals and Professional Service equal to the amount of GST payable on the Services, Hardware, Payment Provider Terminals and Professional Service as calculated by Toast making the supply in accordance with the GST Law. The Additional Amount payable under this Section 6.5 is payable without set off or deduction at the same time and in the same manner as the consideration for the supply. Toast must provide the Merchant with a tax invoice as a pre-condition to payment of the Additional Amount.
Toast may charge Taxes, as required by law, which Merchant agrees to pay, unless Merchant provides Toast with valid exemption documentation satisfying applicable legal requirements of the Australian Tax Office (ATO), as the relevant tax authority. Tax exemption will only apply from and after the date Merchant provides exemption documentation satisfactory to Toast. Taxes shall not be deducted from the payments to Toast, except as required by law, in which case Merchant shall increase the amount payable as necessary so that after making all required deductions and withholdings, Toast receives and retains (free from any Tax liability) an amount equal to the amount it would have had no such deductions or withholdings been made.
Merchant is responsible for determining and fulfilling its obligations under Applicable Law and Rules to report, collect, and remit any applicable Taxes, duties, or other governmental fees on the sale of Merchant’s products and services, payments received, or any other transactions arising from or out of Merchant’s use of the Services and the Payment Provider Services. Toast makes no representation or warranty that the Services, Hardware, Payment Provider Terminals Professional Services or the Payment Provider Services will enable Merchant to meet the tax requirements applicable to Merchant in a specific jurisdiction.
Toast may be obligated under Applicable Law and Rules, including tax laws, to report Required Tax Reporting to tax authorities and/or with respect to Merchant’s use of the Services. Upon request, Merchant shall provide Toast with the necessary information, or other reasonable assistance as appropriate to the request, so that Toast can comply with all applicable tax compliance or reporting requirements. Merchant acknowledges that Toast will report to the applicable tax and revenue authorities the Required Tax Reporting. Merchant agrees to cooperate in good faith in response to any tax authority inquiry, audit, controversy, and/or examination for purposes of substantiating and documenting Taxes collected and remitted pursuant to sales under this Agreement.
6.6. If Merchant financed its original license 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 being billed monthly in advance.
6.7 Merchant shall provide Toast with a method of payment for debits (charges), and a method of receiving payments for credits (reimbursements), associated with Fees or other amounts owing for Services in a form acceptable to Toast, which includes a bank account, as detailed in the Order Form. Merchant authorizes Toast to store bank account information and payment card information provided by Merchant for any use authorized by Merchant, as permitted by this Agreement, or as permitted by any other agreement as between Merchant and Toast. Merchant represents that the payment method provided is owned by the Merchant, established and used for business purposes, and is held by a financial institution in the Merchant's country and denominated in the local currency. Merchant may update or cancel this authorization any time as set forth in the Order Form. This authorization will remain in effect until updated or canceled. The withdrawal of any authorization does not affect the validity of the storage or use by Toast of bank account or payment card information prior to the withdrawal of the authorization.
6.8 Where the Merchant integrates the Services with services or platforms from third parties or if the Merchant permits Toast to refer it to a third party service provider, Toast may receive a commission or other payment from that third party. If Merchant has been referred to Toast by a third party, we may also pay that third party a commission or other amount.
7.1. In order to provide Merchant with access to the Payment Provider Services, Merchant acknowledges and agrees that it is entering into a separate Payment Provider Agreement with the Payment Provider as more fully described at Annex A of this Agreement. Merchant further acknowledges and agrees that Merchant’s participation in the Payment Provider Services is subject to the Payment Provider Agreement.
7.2 Certain other terms relevant to the services provided by Toast to the Merchant to support the Merchant’s use of the Payment Provider Services are set forth at Annex A of this Agreement.
8.1. The initial term of this Agreement 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 the 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) shall automatically renew for successive one (1) year periods (each a “Renewal Term”) unless either party gives the other party written notice of its intent not to renew at least sixty (60) days before the end of the Initial Term, or before the end of the relevant Renewal Term. Toast will notify the Merchant at least sixty (60) days before the end of the Initial or Renewal Term. Collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”. Provided, however, that upon commencement of a Renewal Term, any special terms or promotions (that do not have prescribed end date) previously offered by Toast to Merchant shall no longer be valid. If the Agreement is not renewed, the Merchant shall be liable to Toast for the payment of Fees and/or rates for Services (and Payment Provider Services) provided through the date of expiry.
8.2. Toast may suspend Merchant's username and password, Toast Account and access to the Services, and/or may terminate the Agreement, and Merchant authorize Toast to instruct the Payment Providerto suspend Merchant’s access to Merchant’s Payment Provider Account and access to the Payment Provider Services and/or to terminate the Payment Provider 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 a reminder from Toast; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the Toast Account or Payment Provider Services registration requirements; (c) Toast reasonably determines that Merchant is incurring excessive Chargebacks, as a function of Merchant’s total number of Chargebacks and total number of Card transactions; (d) Merchant violates a material provision of Sections 2, 4, 7 or 12 or any material provision of the Merchant Data Processing Addendum and, where such a provision is capable of remedy, that violation is not remedied within 7 days; (e) the Payment Provider Agreement, or any agreement between Merchant and Payment Provider forming a part thereof, has been terminated for any reason or has otherwise expired and/or an event permitting a termination by Payment Provider under any such agreement occurs; (f) any agreement between Toast and Payment Provider terminates or expires, (g) if (1) any change to, clarification or interpretation by a regulatory authority or Payment Network of, or enactment of any Applicable Law and Rules, would render any portion of the Services illegal, otherwise have a material adverse effect upon the Services or a party, or pose unreasonable risk to Toast or (2) Toast is directed to terminate the Agreement or the Services by a regulatory authority, Payment Provider or a Payment Network or (h) for any reason upon ninety (90) days’ prior written notice to Merchant provided that any pre-paid Fees paid by the Merchant are refunded on a pro-rated basis to the extent they are related to the period after the effective date of termination. As determined it its sole discretion, Toast 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). Where Toast exercises its rights to suspend accounts and/or access to the Services, Toast will reinstate such accounts and/or access promptly once the underlying issue is resolved. Where practical, Toast will also endeavour to provide advance notice of a proposed suspension and/or an opportunity to resolve the issue without such suspension.
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 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. Upon the Effective Date, Merchant agrees to pay Toast all 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 Term. Unless otherwise agreed to by Toast, Merchant acknowledges and agrees that it may terminate this Agreement at any time following the Effective Date, provided that Merchant shall remain responsible for payment of all Fees for Services (provided by Toast) and Payment Provider Services (provided by Payment Provider) through the effective date of termination, and any pre-paid fees are non-refundable. Additionally, Merchant shall incur and pay an early termination fee equal to: 1) the remaining Fees for Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term (“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 17 (Definitions), Section 2.2, Section 4 (Usage Restrictions), Section 4.8, Section 5 (Ownership; Merchant Data, Customer Data & Trademarks), rights to any payments of Fees or Settlements earned up to the date of termination, Section 9 (Disclaimer of Warranties), Section 10 (Limitation of Liability), Section 12 (Confidential Information), Section 16.2 (Arbitration), Section 14 (Notices) and Section 16 (General Provisions). If applicable, the Merchant Data Processing Addendum shall also survive such termination if and to the extent that Toast continues to process Personal Information on behalf of Merchant. Annex A shall survive termination or expiration of this Agreement to the extent necessary to effectuate any remedies of Toast following termination or expiration of this Agreement. 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 except for Card data. Merchant hereby authorizes Toast to notify Payment Provider of any termination or expiration of an Order and/or this Agreement. Subject to Annex A of this Agreement, 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 Merchant Bank Account until all amounts due under this Agreement are paid in full.
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 undertakes to Toast that (a) it is eligible to register and use the Services (and the Payment Provider Services) and has the right, power and ability to enter into and perform under this Agreement; (b) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (c) the information provided in connection with the Services (and the Payment Provider Services), including its legal name or business name and any ACN, ABN or other identifier Merchant provides for its business, accurately and truthfully represented the Merchant` business under which Merchant sells goods and/or services; (d) the taxpayer identification number identified by Merchant is its legal taxpayer identification number; and (e) its use of the Services will be in compliance with this Agreement.
9.3. Limited Warranty and Return Policy. Toast represents, warrants and undertakes to Merchant that, during the Term, the 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”). Subject to Section 9.6, 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. If any update to the Specifications is to the material detriment of the Merchant, the Merchant may, within 30 days of that update, terminate this Agreement in accordance with Section 8.4 provided that the Early Termination Fee under Section 8.4 shall not apply (other than the processing fee for Software financing).
Any Hardware (and Payment Provider Terminal(s)) sold by Toast to Merchant hereunder pursuant to an Order Form) is covered by the Limited Warranty Policy and Return 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 use the Services on a compatible third party device, will be compatible with all third party devices or carriers. Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with its third party 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. All third party hardware and other products included with the Services (subject to Toast prior written approval) but purchased by Merchant directly from a third party manufacturer are provided solely according to the warranty and other terms specified by such third party manufacturer who is solely responsible for service and support for its hardware product. For service, support, or warranty assistance, Merchant will contact the third party manufacturer directly.Toast does not endorse any product advertised or offered by a third party through the Services or any hyperlinked website or service, or featured in any banner or other advertising, and Toast will not be a party to or in any way monitor any transaction between Merchant and third-party providers of products. For the avoidance of doubt, the terms of this Section 9.4 do not apply to the Payment Provider Terminals.
9.5. SUBJECT TO SECTION 9.6, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND RULES, TOAST AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE PAYMENT PROVIDER SERVICES AND THE SERVICES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES, CONDITIONS, TERMS, REPRESENTATIONS, STATEMENTS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE OR OTHERWISE (INCLUDING IMPLIED UNDERTAKINGS OF SATISFACTORY QUALITY, FITNESS FOR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY), ALL OF WHICH ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND RULES 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 PAYMENT PROVIDER SERVICES OR THE RESULTS MERCHANT MAY OBTAIN BY USING THE SERVICES OR THE PAYMENT PROVIDER 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 OR THE PAYMENT PROVIDER SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES OR THE PAYMENT PROVIDER 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 AND THE PAYMENT PROVIDER 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, AND TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND RULES, THE SERVICES AND THE PAYMENT PROVIDER SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.
9.6 Nothing in this Agreement excludes, restricts or modifies any warranty, term, guarantee, representation or condition, or any right or remedy, implied or imposed by any Applicable Law and Rules which cannot lawfully be excluded, restricted or modified. If any warranty, term, guarantee, representation or condition is implied into this Agreement and cannot be excluded (Non-excludable Provision), and Toast is able to limit Merchant’s remedy for a breach of such a Non-excludable Provision, then the liability of Toast for breach of such Non-excludable Provision will be limited to one of the following at Toast’s option: (i) in the case of goods, the replacement of the goods or the supply of equivalent goods or the repair of the goods; or (ii) in the case of services, the supplying of the services again.
Further, our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract. For the purposes of this clause, ‘you’ means the Merchant; and ‘us’ means Toast; and a ‘major failure’ has the meaning given in the Australian Consumer Law.
10.1. To the maximum extent permitted by Applicable Law and Rules and subject to Section 10.3, in no event will Toast be liable to the Merchant: (a) for any indirect, exemplary, incidental, special or consequential losses or damages; (b) for any loss of use, inaccuracy, cost of procurement of substitute goods, services or technology, loss of profits, loss of data or business interruption; or (c) for any matter beyond its reasonable control,arising under or in relation to this Agreement, whether or not foreseeable, even if Toast was aware of the possibility that such loss or damage might be incurred by Merchant.
10.2. To the maximum extent permitted by Applicable Law and Rules, subject to Section 10.1 and 10.3, each party`s total aggregate liability in respect of any Losses incurred by that party under or in relation to this Agreement, including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence) and breach of statutory duty shall be limited to an amount equal to the total Fees actually paid by Merchant to Toast in the twelve (12) months immediately preceding the date of the applicable claim.
10.3 Nothing in this Agreement will operate so as to (i) exclude or limit the liability of either party to the other for fraud, death or personal injury arising out of negligence; (ii) exclude or limit the Merchant` payment obligations related to the Services, Payment Provider Services and other amounts for which it is liable under this Agreement; or (iii) any other liability that cannot be excluded or limited by law.
11.1. 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, fines imposed by the Payment Networks or by regulatory authorities, costs 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 or the Payment Provider Services, other than those attributable to Toast’s gross negligence or willful misconduct, (b) Toast acting in accordance with this Agreement on behalf of Merchant with respect to the Payment Provider Services and processing activitites as set forth at Annex A of this Agreement, (c) any sales transaction conducted by Payment Provider on behalf of Merchant in accordance with this Agreement and the Payment Provider Agreement, (d) any noncompliance with any Applicable Law and Rules by Merchant or its Employees expressly including any claims by Payment Provider arising out of such noncompliance, (e) any non-compliance with Section 13 of this Agreement, (f) Merchant’s, or any Employees’, breach or nonperformance of any provision of this Agreement; (g) any Tax assessment or (h) any claims against Toast related to the use by Toast of any Merchant Data or any of Merchant’s intellectual property in accordance with this Agreement.
11.2 Toast will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by Merchant, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of any claims against Merchant related to the use by Merchant of the Toast’s intellectual property in accordance with this Agreement.
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; (b) not to use such Confidential Information except to exercise its rights or perform its obligations under this Agreement ; and (c) not to disclose to any third person any such Confidential Information other than as expressly permitted in this Agreement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to any Confidential Information that the Receiving Party can document (i) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (ii) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (iv) 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 or potential 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 Merchant shall, if permitted by Applicable Law and Rules, provide Toast 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); or (iii) otherwise 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.
13.1. The parties acknowledge that the Personal Information of Merchant, Merchant’s Employees and Customers will be Processed as part of the Services. For the purposes of any Personal Information Processed under this Agreement, the terms of the Merchant Data Processing Addendum found at https://pos.toasttab.com/privacy/merchantdpa shall apply. The Merchant Data Processing Addendum forms part of and is incorporated into this Agreement by reference. Merchant agrees to post and maintain on its websites a consumer privacy policy describing the Personal Information Processed under this Agreement.
13.2 For certain Services, Toast will act as a Processor and will Process Personal Information on Merchant` behalf. For example, Toast Processes (i) the Personal Information of Merchant Employees in connection with Services that relate to the management and administration of Employees on behalf of the Merchant, and (ii) the Personal Information of Customers in connection with certain Services that allow the Merchant to communicate with and provide offerings directly to their Customers, including loyalty, gift card, guestbook and marketing products. Additional details on each party’s obligations can be found in the Merchant Data Processing Addendum.
13.3 Merchant acknowledges and understands that Payment Provider shall act as a Controller of Merchant’s Personal Information that is collected, Processed and retained as part of Payment Provider’s self-hosted on-boarding process. Toast will provide a web link for Merchant to use to complete Payment Provider’s on-boarding process. Payment Provider’s Privacy Statement (https://www.adyen.com/policies-and-disclaimer/privacy-policy) and terms and conditions (https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms-2022) control this relationship and its on-boarding process, including the Processing of Personal Information.
13.4 Each Party is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with its respective obligations under this Agreement and the provision of the Services. For the avoidance of doubt, this includes access controls and ensuring that Personal Information or other data collected as part of the Services is not improperly disclosed. In all cases, this obligation shall not limit Merchant’s obligations regarding the implementation of any security measures required under the Applicable Data Protection Laws.
Except as provided in Section 16.2, Toast may give notice applicable to Toast's general customer base by means of a general notice on the Services portal, and may also send notices specific to Merchant to the mailing address, email address, telephone number, Merchant’s account on any electronic platform Merchant uses to access Toast’s services, and any other contact information Toast has on file for Merchant. It is Merchant’s responsibility to maintain the accuracy of Merchant’s contact information, and Merchant must notify Toast immediately of any change. Any communication Toast sends to the contact information Toast has on file for Merchant before Merchant notifies Toast of any change, and Toast has an opportunity to act on such change, shall be considered received by Merchant.
Notices to Toast must be sent via registered mail, postage prepaid, return receipt requested, to Toast Australia Pty Ltd ℅ Mcburney & Partners Pty Ltd, Level 10, 68 Pitt Street, Sydney NSW 2000, Australia Attn: General Counsel.Copies of all notices may be sent via email at legal@toasttab.com. However, a notice will not be taken to have been delivered or received by email until delivery is effected as required under this paragraph.
Neither party shall be in default of its obligations under this Agreement to the extent its performance is 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 (each a “Force Majeure Event”). 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.
16.1. Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with laws of New South Wales. Subject to Section 16.2, the parties agree to submit any dispute arising out of or in connection with this Agreement to the exclusive jurisdiction of the courts of New South Wales (including any dispute or claim relating to non-contractual obligations).
16.2.1 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 Merchant’s use of the Services or our websites (including any dispute or claim relating to non-contractual obligations), shall be resolved in accordance with the ACICA Arbitration Rules and this Section 16.2. 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, subject to any applicable laws, any action or proceeding by a party against the other relating to any dispute must commence within three years after the cause of action accrues.
16.2.2 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 contacting Toast’s support team at Toast Central located at central.toasttab.com. If such efforts prove unsuccessful, a party who intends to commence arbitration proceedings 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 c/- Mcburney & Partners Pty Ltd, level 10 , 68 Pitt Street , Sydney NSW 2000, 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 or dispute, despite good faith attempts, within sixty (60) calendar days after the Notice is received, Merchant or Toast may commence an arbitration proceedings in accordance with Section 16.2.3 below. 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.
16.2.3 Arbitration Procedures.The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. If there is any inconsistency between any term of the ACICA Arbitration Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will be binding unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. 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 ACICA. The hearings in any arbitration where the value of all claims or counterclaims cumulatively amount to less than AU$100,000 will take place virtually unless Toast and Merchant agree otherwise or the arbitrator directs that the hearing be held in a different manner, including in person, to preserve procedural fairness. 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.
16.2.4 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the ACICA Arbitration Rules, unless otherwise provided in this Arbitration Agreement. Any payment of legal fees will be governed by the ACICA Arbitration Rules.
16.2.5 Confidentiality. Except as may be required by law, all aspects of the arbitration proceedings (including its existence), and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
16.2.6 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement 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.
16.3. 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.
16.4. Entire Agreement. This Agreement, together with all exhibits, attachments, and addenda incorporated by reference herein and in any Orders and/or Toast Master Services Agreement supersede all prior and contemporaneous agreements and understandings (written or oral). Nothing in this Section 16.4 will exclude or restrict the liability of either party in connection with any representations or other communications (whether oral or written) made prior to the date of this Agreement where such liability cannot be excluded (including under section 18 of the Australian Consumer Law) or arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
16.5 Modification to this Agreement. This Agreement may be amended only by written agreement signed by the parties, except that Toast may update this Agreement at any time via a general notice to its customer base by providing reasonable notice. The modified Agreement is effective from the date stated in the notice. If any update to the Agreement is to the material detriment of the Merchant, the Merchant may, within 30 days of that notice, terminate this Agreement in accordance with Section 8.4, provided that the Early Termination Fee shall not apply (other than the processing fee for Software financing). By continuing the use of the Services after the effective date of any modification of this Agreement, Merchant agrees to be bound by the modified Agreement. For the avoidance of doubt, this clause 16.5 also applies to any changes contemplated under clause 9.5 of the Merchant Data Processing Addendum, with any such changes being effective from the date stated in the general notice above.
16.6 Severability. If any provision of this Agreement is held by an arbitrator or 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.
16.7. Assignment. Merchant may not assign this Agreement without the prior written approval of Toast, such approval not to be unreasonably withheld or delayed. Any purported assignment in violation of this Section 16.7 will be null and void and without force or effect.
16.8. 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 or a process that otherwise requires typing your name and acknowledging it as an electronic signature, or electronically indicating assent, acknowledgement or acceptance of an agreement, document or other writing, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of a live signature on paper. Any transactions or services resulting from the Merchant’s instructions which Toast receives in the Merchant’s name or under the Merchant’s credentials, including any electronic signature, shall be deemed to have been “a writing” and authenticated by the Merchant “in writing” for purposes of any law in which a writing or written signature is needed or required. All electronic signatures and records maintained by Toast of transactions under the Merchant’s or its authorized users’ credentials shall be deemed to have been “signed” and will further constitute an “original” when printed from records established and maintained by Toast or its agent in the normal course of business. Records and “signed” documents, if introduced as evidence on paper in any judicial or other proceedings, will be admissible to the same extent and under the same conditions as other documentary business records.This Agreement may be executed using electronic signature and the receiving party may rely on the receipt of the document as if the original had been received.
16.9. Representatives. Each party shall be primarily responsible for each of its respective Representatives’ compliance with this Agreement.
16.10. Third Party Rights. A person who is not a party to this Agreement may not enforce any of its provisions.
“Agreement” means collectively: (i) this Merchant Agreement, (ii) the Toast Master Agreement (only if applicable), (iii) any Order(s), (iv) the End User License Agreement, (v) Toast`s Limited Warranty, , (vi) the Privacy Statement, and any other exhibit, addendum, annex, schedule, or attachment to any of the foregoing that is incorporated by reference therein or herein. “Agreement” does not include the Payment Provider Agreement.
“Applicable Data Protection Laws” has the meaning given to it in the Merchant Data Processing Addendum.
“Applicable Law and Rules” means all national, federal, state, provincial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to Merchant and/or Merchant’s business, including without limitation, any applicable tax laws and regulations, all requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated rules and regulations, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI DSS”), and the Operating Regulations. For the purposes of this Agreement, Applicable Law and Rules includes Applicable Data Protection Laws, Sanctions and security laws.
Merchant shall refer to the websites of the PCI DSS and the Payment Networks for applicable PCI DSS and Payment Network requirements, as may be updated from time to time, including:
PCI DSS: https://www.pcisecuritystandards.org
Visa’s AIS program: https://corporate.visa.com/en/resources/security-compliance.html
Mastercard’s SDP program: https://www.mastercard.com/sdp
“Card” has the meaning set forth in the Payment Provider Agreement.
“Chargeback” has the meaning set forth in the Payment Provider Agreement.
“Community Philosophy” means Toast’s Community Philosophy framework of expectations for conduct for interactions between Toast employees and customers, partners, vendors, etc. and process for addressing conduct that does not align with our standards and values, available at the Toast Investor Relations webpage at https://investors.toasttab.com.
“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and (ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to Recipient that contain, or are based on, in whole or in part, any of the information described in this definition.
“Controller” means the entity that determines as a legal person alone or jointly with others the purposes and means of the Processing of Personal Information. For the purposes of this Agreement, “Controller” includes similarly defined terms under the Applicable Data Protection Laws, including, but not limited to, a “Business.”
“Customers” refers to Merchant’s customers or guests who purchase goods and services from the Merchant, where such purchase is facilitated by the Services.
“Customer Data” means data and information, which may include Personal Information, collected by Merchant and/or Toast via the Services, such as when a Customer enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) Card information; (iv) Customer purchase history; and (v) location information.
“Effective Date” means the date as defined in the Order Form or Toast Master Agreement, as applicable.
“Employees” means Merchant’s employees, agents and contractors who are authorized by Merchant to use the Services.
“End User License Agreement” or “EULA” means the additional terms of service (inclusive of its Schedule 1-Country Specific Terms Australia provisions) applicable to Merchant’s and its Employees’ use of the Services, including without limitation, the Toast App, available at http://pos.toasttab.com/end-user-license-agreement .
“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services, Professional Services and Hardware.
“Fees” means any fees of any kind whatsoever (whether denominated as “fees,” “charges,” “rates,” or otherwise) set forth in an Order or otherwise owed to Toast by Merchant in connection with the Agreement, including without limitation, fees for Software subscription(s), Hardware, Payment Provider Terminals, Professional Services and the Card payment processing.
“Force Majeure Event” has the meaning ascribed to it in Section 15.
“Go-Live Date” means the actual date upon which Merchant begins using the Services and is capable of processing Card payments in a live production environment using the Payment Provider Services (if applicable).
“GST” means the tax that is the subject of the GST Act, and includes any additional tax, penalty tax, fine interest or other charge relating thereto.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Hardware” means any terminal, tablet, kitchen display screen (“KDS”), switch, router, card, cable, wall mount, printer or other item of physical hardware, as made available by Toast, and purchased under an Order. For clarity, Hardware does not include the Payment Provider Terminals.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, database rights laws, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future, including without limitation any applications, registrations, extensions and renewals related to the foregoing.
“Location(s)” means the actual number of locations for which a Merchant is agreeing to purchase and/or license, as applicable, the Hardware, Services and/or Professional Services, Payment Provider Terminals and Payment Provider Services as reflected in the relevant Order.
“Loss” or “Losses” means any and all losses, liabilities, charges, costs, damages, fines, penalties, interest and all reasonable legal and other professional fees and expenses including, in each case, all related taxes.
“Merchant” means the contracting entity listed on the applicable Order Form or Toast Master Agreement, as applicable.
“Merchant Bank Account” means the bank account (or accounts) Merchant designates on the Order Form or Toast Master Services Agreement, as applicable, for the facilitation of transactions, for receipt or facilitation of Settlement (by the Payment Provider) and/or payment of Fees to Toast hereunder.
“Merchant Data” means any files, graphics, images, text, emails, data or other information submitted by Merchant in the course of using the Hardware, Payment Provider Terminals and Services and/or collected by Toast, including without limitation Merchant’s name, address, contact information, Employee information, products, loyalty program information, logos, promotional information, advertisements, transaction details and other information or material submitted by Merchant to Toast through the Services, excluding Customer Data. Merchant data may include Personal Information, whether from Merchant’s Employees, existing customer information or otherwise.
“Merchant Data Processing Addendum” means the data processing addendum available at https://pos.toasttab.com/privacy/merchantdpa which is incorporated into and forms part of this Agreement, as updated by Toast from time to time.
“Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to Toast for use with the Services.
“Merchant’s Payment Provider Account” means the account of the Merchant established and held by Payment Provider in Merchant’s name on the Payment Provider Platform for holding amounts in respect of Settlement (among other amounts as may be agreed between Merchant and Payment Provider) but prior to the application of withholdings or the disbursement of Settlement to the Merchant Bank Account.
“Operating Regulations” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Payment Networks as may be amended or supplemented over time, including but not limited to the Payment Card Industry Data Security Standards, the VISA Account Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by a Card brand or Payment Network. Significant portions of the Operating Regulations are made available to the public at the following online websites:
Visa: https://www.visa.com.au/
Mastercard: https://www.mastercard.com.au
EFTPO:https://www.auspayplus.com.au/wp-content/uploads/2023/11/eftpos_Scheme_Rules_v3-12.pdf
PCI DSS: http://www.pcisecuritystandards.org/
Visa’s AIS program: https://corporate.visa.com/en/resources/security-compliance.html
Mastercard’s SDP program: https://www.mastercard.com.au/en-au/business/merchants/safety-and-security/security-recommendations/site-data-protection-and-pci.html
American Express: https://www.americanexpress.com/content/dam/amex/us/merchant/new-merchant-regulations/Regs_EN.pdf
“Order” or “Order Form” means the relevant Toast ordering document (including any online order or quote), specifying the description and price of the Services, Hardware, the Payment Provider Terminals, and Professional Services purchased, or licensed hereunder, and the applicable Card processing rates (in respect of the Payment Provider Services), as mutually agreed to, executed by Merchant and accepted by Toast. The Order may also contain the merchant application and related data.
“Payments” means a “Transaction” as defined in the Payment Provider Agreement.
“Payment Network” has the meaning ascribed to “Card Scheme” in the Payment Provider Agreement.
“Payment Provider” means one or more third party banks or other third party payment processing providers as Toast may designate from time to time with or without notice to Merchant. As of the Effective Date, the Payment Provider is, collectively, Adyen Australia Pty Limited, a company registered in Australia under company number ABN 55 162 682 411 whose registered office is at Level 1, 10-14 Waterloo Street, Surry Hills, NSW 2010, Sydney, Australia; and Adyen N.V. a public company registered in the Netherlands under company number 34259528 whose registered office is at Simon Carmiggeltstraat 6-50, 1011 DJ, Amsterdam, the Netherlands.
“Payment Provider Platform” means the Payment Provider payment processing and acquiring platform used by Payment Provider to provide the Payment Provider Services to the Merchant.
“Payment Provider Services” has the meaning ascribed to “Services” in the Payment Provider Agreement including, for avoidance of doubt, any services described in any agreement that forms a part of the Payment Provider Agreement. Payment Provider Services does not include the Services (as defined in this Agreement).
“Payment Provider Terminal” means a “Payment Terminal” as used in the Payment Provider Agreement, and purchased by Merchant from Toast under an Order.
“Payment Provider Agreement” means the following agreements entered as between Merchant and Payment Provider, each of which is available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms-2022 (including documents hyperlinked therein provided by Payment Provider), each of which is provided solely by Payment Provider, not Toast, and does not form part of this Agreement, and as each may be amended or updated from time to time by Payment Provider in accordance with its terms, including:
The general terms and conditions for the Payment Provider Services (https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms-2022 );
The terms and conditions for a service allowing Settlement per sales day (https://www.adyen.com/legal/afp-sales-day-pay-out);
The terms and conditions for prohibited and restricted products and services (https://www.adyen.com/legal/list-restricted-prohibited, the “Payment Provider Prohibited and Restricted Services and Products”); and
The terms and conditions for payment terminals provided by Payment Provider https://www.adyen.com/legal/payment-device-terms-of-service, the “Payment Provider Terminal Services Terms”).
“Personal Information” means any information relating to an identified or identifiable individual. Personal Information may include, but is not limited to, a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses, and location-based information, but excludes aggregated or anonymized information that does not identify an individual. Personal Information shall include any information that constitutes “Personal Information”, “Sensitive Information” or “Personal Data” under the Applicable Data Protection Laws.
“Privacy Statement” means the then-current version of Toast’s Privacy Statement available at https://pos.toasttab.com/privacy.
“Processor” has the meaning provided under the Merchant Data Processing Addendum.
“Process” or “Processing” means any operation or set of operations performed on Personal Information or sets of Personal Information, whether or not by automated means, including, but not limited to, the collection, access, use, alteration, disclosure, or deletion of Personal Information.
“Professional Services” means any implementation services and/or training provided by Toast to Merchant pursuant to an Order.
“Refund(s)” has the meaning set forth in the Payment Provider Agreement.
“Representatives” means a party’s respective officers, employees, directors, related bodies corporate, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), contractors and third-party service providers.
“Required Tax Reporting“ means information that Toast is required to provide to certain tax authorities under Applicable Law and Rules.
“Reserve” or “Reserve Account” means an amount of Merchant funds designated by Payment Provider that must be held and maintained by Payment Provider, or by Merchant if directed by Toast, in order to protect Toast or Payment Provider from risks related to Merchant’s acts or omissions as more fully described in Section 9 of Annex A of this Agreement.
“Sanctions” means all applicable economic or trade sanctions, or export controls laws and regulations, or anti-terrorism laws or measures, as may be updated from time to time.
“Services” means Toast’s websites, Software, the Toast Platform, Toast Apps, Digital Ordering Channels, supported integrations with third parties, customer support, and the Toast` support services in respect of the Payment Provider Services (as such support services are described in Annex A of this Agreement) or any other current or future services offered by Toast. The Services do not include the Payment Provider Services.
Settlement” has the meaning set forth in the Payment Provider Agreement.
“Software” means Toast’s point-of-sale restaurant, hospitality and retail management system made available to Merchant via the Toast Platform, including both online and offline components, products, services, features, content, and updates related thereto. For clarity, Software does not include the “Software” as defined in the Payment Provider Agreement.
“Specifications” means the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by Toast to Merchant.
“Taxes” means taxes, levies, or duties imposed by taxing authorities.
“Term” shall have the meaning provided in Section 8.1.
“Toast Account” means Merchant’s account with Toast.
“Digital Ordering Channels” means any products, software and services made available by Toast to Merchant, that enable Merchant` Customers to make purchases from Merchant, including but not limited to Online Ordering, the Local by Toast mobile application (formerly known as Toast TakeOut) and related websites and services, the name of which may change from time-to-time (“Local App” or “App”), Toast Delivery Services, Order & Pay at Table and other products and services. Certain Digital Ordering Channels may or may not be available to Merchant depending on where Merchant is located.
“Toast Platform” means Toast’s proprietary online and offline Software either installed on Hardware, or made available for download by Merchant online, that enables Employees and Customers to interface with, access and use the Services. The “Marketplace Platform” as defined in the Payment Provider Agreement is a component of the Toast Platform.
“Toast Apps” means, collectively, mobile applications made available by Toast as part of the Toast Services, for download by Merchants, Employees or Customers, as applicable, that enable Merchants, Employees and Customers to interact with, access and use the Services.
“Toast Master Agreement” means a master services agreement that Toast may enter into with select merchants that contains certain terms, conditions, and/or fees or other arrangements agreed upon by such merchant and Toast.
Payment Provider Services
1. Payment Provider Agreement. Merchant acknowledges and agrees that:
by executing an Order Form and/or Master Services Agreement with Toast, Merchant confirms its order for the Payment Provider Services;
Merchant is entering into a separate binding Payment Provider Agreement solely with the Payment Provider, and the Payment Provider, not Toast, is solely responsible for the provision of the Payment Provider Services and the content thereof;
Merchant has taken notice of and accepts the terms and restrictions of each document referenced in the definition of Payment Provider Agreement and has reviewed each such document, including (i) the general terms and conditions for the Payment Provider Services, available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms-2022 and (ii) the Payment Provider Prohibited and Restricted Services and Products, available at https://www.adyen.com/legal/list-restricted-prohibited;
Payment Provider Services may only be used for business purposes in Australia;
Toast is not considered by the parties to be a payment processor, this Agreement does not contemplate the provision of payment processing services by Toast, and Payment Provider shall be the sole provider of payment processing services to Merchant (as among Merchant, Toast and Payment Provider) as part of the Payment Provider Services under the Payment Provider Agreement. The parties intend that Toast will act as technological service provider supporting the provision by Payment Provider of the Payment Provider Services, without entering at any time into possession of the funds to be transferred;
Toast is the “Marketplace” and the provider of the “Marketplace Platform” as those terms are used in the Payment Provider Agreement.
Merchant designates Toast as an authorized representative of Merchant towards Payment Provider with respect to the use by Merchant of the Payment Provider Services. As such, Toast is authorized by Merchant to access and use the data of Merchant processed on the Payment Provider Platform. Merchant agrees that any notices, requests, requirements, demands, instructions, directions and any other communication from Payment Provider transmitted by Payment Provider to Merchant through the Toast Platform shall be deemed received by Merchant. Merchant hereby authorizes Toast to access any such communication or Payment data to provide support to Merchant at the level of individual Payments and to technically manage user settings of the Merchant with respect to the Payment Provider Services on Merchant’s behalf;
All valid activities performed by Toast with respect to Merchant on the Payment Provider Platform in accordance with the Agreement, including this Annex A, will be deemed to be performed by Toast as authorized representative of Merchant including, for example, any settings of Merchant configured by Toast on the Payment Provider Platform. Toast may treat any instruction Merchant provides to Toast to do or refrain from doing any activity as authorization to instruct Payment Provider on Merchant’s behalf to do or refrain from doing such activity, and any instruction relating to Merchant transmitted by Toast to Payment Provider contemplated hereunder shall be deemed to be authorized by Merchant and transmitted on Merchant’s behalf. All instructions or other communications contemplated by this Agreement or the Payment Provider Agreement that may or are required to be provided by Merchant to Toast or Payment Provider shall be provided through the Toast Platform, except to the extent expressly agreed otherwise by Toast or Payment Provider, as applicable;
Merchant’s use of the Payment Provider Services is subject to approval by Payment Provider in its sole discretion and Merchant’s application to use the Payment Provider Services may be rejected as the result of the review of the application;
Merchant will not use the Payment Provider Services for the sale of any product or service that: i. violates any Applicable Law and Rules; ii. appears in the Payment Provider Prohibited and Restricted Services and Products (unless an express waiver is agreed to by Payment Provider for products or services in the “restricted” category).
2. Exclusivity and Merchant Authorization. Merchant agrees to utilize Toast in Toast’s capacity as the “Marketplace” under the Payment Provider Agreement as Merchant’s exclusive provider of access to payment processing services. Merchant hereby authorizes Toast to act as Merchant’s authorized representative for the limited purposes of (i) instructing Payment Provider to hold, receive, and disburse funds on Merchant’s behalf; (ii) accessing the Merchant Bank Account to effectuate payment to Toast (pursuant to the direct debit authorization provided by Merchant) of any applicable Fees, other amounts pursuant to this Annex A, and any other amounts owed as agreed to in any applicable Order Form; (iii) directing the Payment Provider to withhold from Settlements, payment(s) to Toast, or a third party of any other amounts contracted for between Merchant and Toast or Merchant and such other third party to the extent expressly directed by Merchant, including, by way of example only (a) in connection with a Hardware lease program, or (b) a loan through a lending program for which Toast or its affiliate may be a servicer if Toast were to offer access to such a program. Merchant’s authorization permits Toast to instruct Payment Provider on Merchant’s behalf to generate a tangible draft or an electronic funds transfer. Merchant’s authorization herein will remain in full force and effect during the Term of this Agreement.
3. Settlement Timing. Merchant acknowledges and agrees that Payment Provider will settle available Settlements to the Merchant Bank Account on the basis of either (i) payment triggers instructed by Merchant based on such triggers as Toast may make available or (ii) a preferred fixed regime (daily, weekly, monthly) instructed by Merchant based on such regimes as Toast may make available. It is Merchant’s responsibility to initiate Settlement of its payments in a timely manner through the Payment Provider Services accessed through the Services. Merchant acknowledges and agrees that the Payment Provider is responsible for Settlement. Merchant’s failure to initiate Settlement of its payments in a timely manner may result in higher processing rates charged by the Payment Networks and Toast reserves the right to recoup such charges from Merchant, including by offsetting such amounts against Settlements. Merchant authorizes Toast to instruct Payment Provider to submit transactions to and receive Settlements from one or more Payment Networks, on Merchant’s behalf. Merchant shall ensure any information it has provided, including information regarding its Merchant Bank Account, is up to date at all times, shall notify Toast immediately of any changes thereto and authorizes and instructs Toast to share any such changes with Payment Provider. Notwithstanding the above, Settlement of funds for processed Payments may be delayed or withheld by the Payment Provider or Toast, in their reasonable discretion in relation to suspected fraud, chargebacks, refund requirements or similar. The Settlement will be completed as soon as possible once any associated investigation or enquiry is completed, subject to any adverse finding.
4. Aged Settlements. Merchant acknowledges and agrees that any Settlement funds to which Merchant is entitled must be paid out to the Merchant Bank Account within 30 days. If Merchant fails to instruct Toast to instruct Payment Provider to pay out such funds within 30 days and does not give proper justification satisfactory to Toast and Payment Provider for its failure to instruct (which could be justified because Merchant did not yet provide the goods or services sold to the Customer), Payment Provider is authorized to push, and Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to push settlement of such aged funds to the Merchant Bank Account.
5. Use and Return of Payment Provider Terminals. Merchant agrees that Merchant shall be solely responsible for operating and using the Payment Provider Terminals in compliance with Section 6 of the Payment Provider Terminal Services Terms. Upon termination of this Agreement or the applicable Order Form, and/or in case the Payment Terminals will permanently no longer be used by Merchant, Merchant shall, as soon as reasonably possible return all affected Payment Terminals in its possession to Payment Provider or, at Toast’s direction, Toast, for proper disposal.
6. Adjustments. If Merchant has not provided goods or services consistent with this Agreement and the Payment Provider Agreement with respect to a particular transaction(s), Merchant authorizes Toast to, or to instruct Payment Provider on Merchant’s behalf to: (i) withhold Settlement and/or pay a Refund to any Customer from the Merchant Bank Account, (ii) adjust the Settlement due in any period to compensate Toast for any Chargebacks, calculation errors, Merchant employee fraudulent use, and any Refunds paid to Customers in accordance with this Agreement, whether or not related to the period on which such adjustment is made, or to offset against such Settlement any other claim Toast may have arising hereunder, as more fully set forth in Section 9 of this Annex A.
7. Investigations. Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to defer payout or restrict access to Merchant funds as required by Applicable Law and Rules or court order, or if otherwise requested by law enforcement or government entity. Additionally, Merchant will assist Toast when reasonably requested, at Merchant’s expense, to investigate any of Merchant’s Payments processed through the Payment Provider Services. To that end, and in accordance with Section 10 below, Merchant permits Toast to share and authorizes Toast to instruct Payment Provider on Merchant’s behalf to share information about a Chargeback with Customer, Payment Provider, 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, and Merchant agrees to provide such information as promptly as possible and in accordance with any timing reasonably specified by Toast or as required under Applicable Law and Rules. If a Chargeback dispute is not resolved in Merchant’s favor by the Payment Network or issuing bank or Merchant chooses not to contest the Chargeback, Toast may instruct Payment Provider on Merchant’s behalf to recover the Chargeback amount and any associated fees as described in the Agreement. Merchant acknowledges that its failure to assist Toast in a timely manner when investigating a Payment, including providing necessary documentation within the time period reasonably specified in Toast’s request, may result in an irreversible Chargeback. Toast will charge a fee for mediating and/or investigating Chargeback disputes (as set out in the Order Form or otherwise agreed in advance with the Merchant), in addition to any other Chargeback fee(s) set forth in an Order Form, if applicable. Additionally, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to decline to authorize or settle any Payment that Merchant submits to Payment Provider if (i) Toast reasonably believes that the Payment is in violation of any agreement between Toast or Payment Provider, on the one hand, and Merchant on the other, or (ii) the Payment exposes Merchant, other Toast users, Payment Provider or Toast to harm as a result of fraud, a violation of individual or proprietary rights, and other criminal acts. Merchant gives Toast express authorization to share, or to instruct Payment Provider on Merchant’s behalf to share, information about Merchant, Merchant’s Toast Account and Merchant Bank Account, and any of Merchant’s transactions with law enforcement or regulatory authorities if Toast reasonably suspects that Merchant’s Toast Account or Merchant Bank Account has been used for an unauthorized, illegal, or criminal purpose.
8. Merchant Bank Account Activity. Except as required by Applicable Law and Rules or Toast`express obligations under the Agreement, Merchant is solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with the Merchant Bank Account and Merchant’s use of the Services or the Payment Provider Services, and (b) reconciling all transactional information that is associated with Merchant Bank Account. If Merchant believes that there is an error or unauthorized transaction activity associated with the Merchant Bank Account, Merchant will contact Toast as soon as practicable.
9. Merchant Reserves. Merchant authorizes Toast to, or to instruct Payment Provider on Merchant’s behalf at any time to: (i) temporarily suspend or delay payments to Merchant where Toast is permitted to do so in accordance with the Merchant Agreement, (ii) designate an amount of Merchant funds that Toast or Payment Provider must maintain in order to protect against anticipated risks as described herein, and/or (iii) require that Merchant maintain a certain amount of funds in its Merchant Bank Account to secure the performance of Merchant’s obligations under the Merchant Agreement. Toast, in its sole reasonable discretion, may require a Reserve, in order to protect Toast from potential losses or other risk associated with Chargebacks (or anticipated Chargebacks), excessive Refunds, liens, garnishments, credit risk based on Merchant’s processing history, or other indications of performance problems related to Merchant’s acts or omissions for which Toast may be liable (including under its arrangement with the Payment Provider). The Reserve will be in an amount as reasonably determined by Toast and/or Payment Provider having due regarding to such anticipated risk exposure for which Toast may be liable as a result of the Merchant`s payment processing activities. The Reserve may be raised, reduced, or removed at any time by Toast, in its reasonable discretion as required to protect against such anticipated risks 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 and/or Payment Provider may reasonably determine or require having regard to such anticipated risks. If Merchant does not have sufficient funds in its Merchant Bank Account, Merchant authorizes Toast to fund, or to instruct Payment Provider on Merchant’s behalf to fund, the Reserve from the Merchant Bank Account or any funding source associated with Merchant’s Toast Accounts, including any funds (a) transferred by Merchant, (b) due to Merchant, or (c) available in the Merchant Bank Account, or other payment instrument registered with Toast or Payment Provider. Merchant grants Toast a security interest in and a lien on any and all funds held in any Reserve, and also authorizes Toast to, or to instruct Payment Provider on Merchant’s behalf to, make any withdrawals or debits from the Reserve, the Merchant Bank Account, or any bank account linked to any of Merchant’s Toast Accounts, without prior notice to Merchant, to collect amounts that Merchant expressly owes Toast under this Agreement, and such authorization survives termination of this Agreement for so long as such amounts remain due and owing. Merchant will execute any additional documentation required for Toast to perfect its security interest in any funds in the Reserve. This security interest survives termination of this Agreement for as long as Toast holds funds in the Reserve. Any Reserve will be held by Toast for such a period of time as is consistent with Toast’s liability for the potential risks described above, in accordance with Applicable Law and Rules. Toast and Payment Provider may (but are not required to) apply funds in the Reserve toward the satisfaction of any amounts which are or may become due from Merchant pursuant to this Merchant Agreement. Funds in the Reserve will not bear interest and may be commingled with other funds. Upon (i) satisfaction of all of Merchant’s obligations under this Merchant Agreement; and (ii) Merchant’s execution of documents reasonably requested by Toast and/or Payment Provider in connection with the return of any Reserve funds, Toast and/or Payment Provider will pay to Merchant any funds then remaining in the Reserve. Upon notice of termination of this Merchant Agreement, Toast and/or its Payment Provider may estimate the aggregate dollar amount of anticipated Chargebacks, Refunds, fines, fees, penalties, or other risks and the like that Toast and/or Payment Provider reasonably anticipates subsequent to termination, and Merchant agrees to immediately deposit such amount in its Merchant Bank Account, or Toast may withhold, or may instruct Payment Provider on Merchant’s behalf to withhold, such amount from Settlement funds in order to establish a Reserve pursuant to and governed by the terms and conditions of this Merchant Agreement. Promptly following confirmation of any eventuation or otherwise of such risks, and in any event within 12 months, Toast will return to Merchant any remaining amounts in the Reserve. Notwithstanding anything to the contrary, if the Merchant at any time is not comfortable with the Reserve or Toast’s exercise of its rights under this section, including any increase to the Reserve, the Merchant may terminate this Agreement in accordance with Section 8.4 provided that the Early Termination Fee under Section 8.4 shall not apply (other than the processing fee for Software financing).
10. Chargebacks. Merchant must use all reasonable endeavours to not incur excessive Chargebacks. If Toast determines that Merchant is incurring excessive Chargebacks, Toast will notify the Merchant and provide Merchant with thirty (30) days to remediate any acts or omissions within Merchant’s reasonable control that have caused or contributed to such excessive Chargebacks. Where excessive Chargebacks, Toast may, and Merchant authorizes Toast to, establish controls or conditions governing Merchant’s Toast Account designed to address this Chargeback risk, or to instruct Payment Provider on Merchant’s behalf to establish such controls or conditions governing Merchant’s Payment Provider Account, including without limitation, by (a) establishing new processing fees, (b) creating or instructing Payment Provider on Merchant’s behalf to create a Reserve in accordance with Section 9 of this Annex A, (c) instructing Payment Provider on Merchant’s behalf to delay Settlement payouts, and/or (d) terminating this Agreement, as applicable. Notwithstanding anything to the contrary, if the Merchant at any time is not comfortable with Toast’s exercise of its rights under this section and paragraphs (a) to (c) herein, the Merchant may terminate this Agreement in accordance with Section 8.4 provided that the Early Termination Fee under Section 8.4 shall not apply (other than the processing fee for Software financing).
Notwithstanding Section 9 of this Annex A, for any Payment that results in a Chargeback, Toast may instruct Payment Provider on Merchant’s behalf to withhold the Chargeback amount and any associated fees. Toast may deduct, and Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to 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 Payment Provider Account or the Merchant Bank Account (including without limitation any Reserve), or any proceeds or amounts due to Merchant. If Merchant has pending Chargebacks, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to delay payouts to the Merchant Bank Account. Further, if Toast reasonably believes that a Chargeback is likely with respect to any disputed Payment, Merchant authorizes Toast to instruct Payment Provider on Merchant’s behalf to withhold the amount of the potential Chargeback from Settlements or other payments otherwise due to Merchant under the Agreement until such time that: (a) a Chargeback is assessed, in which case Toast may instruct Payment Provider on Merchant’s behalf to retain the funds; (b) the period of time under Applicable Law and Rules by which Customer may dispute the Payment has expired; or (c) Toast determines that a Chargeback on the transaction will not occur, in which case Toast will promptly instruct Payment Provider on Merchant’s behalf to release the withheld funds back to Merchant. If Toast is unable to recover funds related to a Chargeback for which Merchant is liable, Toast may instruct Payment Provider on Merchant’s behalf to deduct the full amount of the applicable Chargeback from the Merchant Bank Account in accordance with the Agreement or, if Toast is unable to do so, Merchant shall pay Toast promptly upon demand that amount. 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 or Merchant’s Payment Provider Account deficit balances that are unpaid by Merchant. The payment obligations under this Section are not subject to any limitation or exclusion of liability under the Agreement. The terms and conditions of this Section 10 will survive termination of this Agreement.
11. Compliance. The Payment Networks require that Merchant and Toast comply with all Applicable Law and Rules. Applicable Law and Rules may prohibit or impose additional conditions or restrictions on Merchant, including without limitation assessing a surcharge for the use of a Card in connection with any transaction. Further, Toast may prohibit or otherwise restrict Merchant's ability to use the Services in connection with the sale of certain products or services, or certain transaction types, that Toast, or Payment Provider, in their respective discretion deem to pose undue risk to Toast or Payment Provider, as applicable. Without limitation of the foregoing, a list of certain prohibited or restricted transactions may be found at the list of Payment Provider Prohibited and Restricted Services and Products, available at https://www.adyen.com/legal/list-restricted-prohibited.
12. Errors. Toast will employ commercially reasonable efforts to rectify, or to cooperate with Payment Provider to rectify, payment processing errors that Merchant processes incorrectly if and when Merchant notifies Toast of such an error. Merchant’s failure to notify Toast of a payment 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.
13. Offline Payments. Merchant acknowledges that in case of connectivity issues to a Payment Network or the issuer of a Card, it may choose to accept Payments offline as described in the Payment Provider Terminal Services Terms. If Merchant chooses to accept Payments offline, Merchant accepts any and all risks, responsibilities and liabilities as described in the Payment Provider Terminal Services Terms.
14. Surcharging. If Merchant charges any Payment Method Surcharge using the Toast Platform, the following shall apply on an ongoing basis:
Merchant acknowledges and agrees that assessing a Payment Method Surcharge is optional for Merchant. If Merchant chooses to assess a Payment Method Surcharge, Merchant shall disclose such Payment Method Surcharge to its Customers as a fee imposed only by Merchant, and not by Toast, Payment Provider, a Payment Network or any other third party.
Merchant in charging a Payment Method Surcharge shall comply with all of its obligations under Applicable Law and Rules including the Reserve Bank of Australia’s Standard No 3 of 2016: Scheme Rules Relating to Merchant Pricing for Credit, Debit and Prepaid Card Transactions (a copy of which is hereby provided by reference to this link) and the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (each as amended, supplemented or superseded from time to time, and each taken together with applicable regulatory rules or guidance thereunder, “Standard No. 3” and the “ACL,” respectively). Merchant represents and warrants that it has read and understands Standard Number 3 and the ACL. Merchant acknowledges and agrees that, as between Toast and Merchant, Merchant shall bear any liability resulting from a breach of Standard Number 3 or the ACL that results directly or indirectly from any Payment Method Surcharge charged by Merchant, regardless of whether Toast from time to time provide tools, products, guidance materials or other Toast Services to assist Merchant with the charging of a Payment Method Surcharge or Merchant’s compliance responsibilities with respect thereto. Merchant shall take all steps necessary to ensure compliance of any Payment Method Surcharge, including by taking any steps requested by Toast, Payment Provider or a Payment Network in connection therewith.
Merchant will not, and will not attempt to, use any Toast Services to assess any Payment Method Surcharge other than such Toast Services as Toast may make available and expressly designate from time to time for such purposes.
“Payment Method Surcharge” means a “Surcharge” as defined in Standard No. 3, as applied to a Payment by a Customer.