Toast Advertising Pilot Agreement

1. Pilot Program; Account(s). 
2. Pilot Program. Merchant has been selected by Toast to participate in a test pilot conducted by Toast to enable Toast to use Merchant’s applicable Meta and/or Google (each an “Ads Partner”)  account(s)  (“Account(s)” ) to create advertising and marketing campaigns for Merchant (each a “Campaign”) and view key performance outputs, including, but not limited to, restaurant customer/guest acquisition cost and return on spend (the “Performance Data”) (collectively, the “Pilot Program”). Merchant agrees and acknowledges that Toast will own and/or, to the extent owned by an Ads Partner, hereby grants to Toast an unlimited, royalty free, sublicensable, worldwide license to all the Performance Data provided by such Ads Partner. Additionally, Merchant agrees and acknowledges that as between Merchant and Toast, Toast shall own and/or, to the extent owned by an Ads Partner or any other third party, Merchant hereby grants to Toast an unlimited, royalty free, sublicensable, worldwide license to the advertisements and accompanying materials associated with a Campaign, except with respect to any Merchant Marks included therein.
3. Toast as a service provider. Merchant understands and acknowledges that Toast is acting as a service provider with respect to the services outlined in this Agreement and the Pilot Program.
4. Merchant Instruction to send Data to Ads Partner(s). In connection with the Pilot Program, Merchant instructs  Toast to send to each Ads Partner certain information (including personal information, i.e., information relating to an identified or identifiable individual and otherwise defined in the Toast Merchant Agreement) that Toast processes and maintains in Merchant’s Toast account on Merchant’s behalf, including without limitation login credentials and related authentication information required to access the Ads Partner account, and guest names, email addresses, phone numbers, and transaction details (the “Data”). To the extent Toast sends the Data to Ads Partner or other downstream parties as applicable, Toast is acting as a processor/service provider as defined by Applicable Data Protection Laws pursuant to the terms of the Merchant Data Processing Addendum (found here).
5. Account(s). Merchant covenants and acknowledges that Toast will have unfettered access to and control of Merchant’s Account(s) that will, among other things, enable Toast to log in, access, and control the Account(s), share Data, review and download Performance Data, and independently create advertising and marketing campaigns using the Account(s), which advertising and marketing campaigns may be run on any channels, as determined by Toast.  Merchant understands and acknowledges that Merchant's Account(s) may be subject to applicable terms and agrees to be bound by such terms. Merchant shall enter into a separate agreement with Ads Partner(s) governing Merchant’s Account(s) and use of the applicable Ads Partner services. Merchant further understands and acknowledges that Toast may make modifications to any Campaign at any point. For illustrative purposes only, Toast may modify the ad copy drafted by Merchant with the goal of helping to optimize Campaign performance.
6. Beta Terms. The Pilot Program is subject to the Toast Beta Participation Agreement attached hereto as Exhibit A (the “Beta Agreement”) and Merchant hereby agrees to be bound by the terms thereof.
7. Conflicts Control. In the event of a conflict between the terms of this Agreement and any other agreement that applies to Merchant’s relationship with Toast, the terms of this Agreement will control.
8. Billing & Payment. 
   1. Fees applicable to this Pilot Program include, without limitation, (1) costs associated with the advertising services and spend on advertising campaigns managed through the Pilot Program (“Ad Spend”) and (2) any additional service fee(s) charged by Toast (“Toast Fees”). All amounts incurred are exclusive of any taxes. Applicable fees are subject to change at any time upon notice to Merchant. 
   2. On or about the seventh (7th) day of each month, Toast will issue an invoice to Merchant for the prior month’s combined Ad Spend and Toast Fees. Such invoices will be due and payable within two (2) days of receipt, and Toast will automatically be paid using the default payment method associated with Merchant’s Toast account in accordance with the authorization herein.
   3. Authorization. Merchant authorizes Toast  to initiate a payment from the default payment account with Toast on or about the seventh (7th) day of each month for the total amount owed for the prior month's ad campaigns, including applicable fees by Toast. Merchant understands that Merchant cannot cancel any payment after it has been initiated by Toast.
9. Term & Termination. 
   1. The estimated Pilot Program dates will be as communicated by Toast to Merchant from time to time.
   2. This Agreement will become effective as of the date of the last signature below (the “Effective Date”) and will continue through the pilot period as determined by Toast in its sole discretion (the “Pilot Term”). Toast may elect to terminate or extend this Agreement and/or Merchant’s access to the Pilot Program at any time by giving written notice to Merchant. 
   3. Toast may elect to modify, suspend or terminate the Pilot Program or any Campaign at any time with or without notice to Merchant. 
10. Merchant’s Responsibilities. 
    1. Merchant is solely responsible for the processing and/or lawful use of the Data by Ads Partner(s) and any compliance obligations associated with that processing (e.g., notices, consents, individual rights management, opt outs, etc.) related to Merchant’s Account(s) and the Pilot Program, including any information passed between Merchant’s Toast account and Ads Partner(s) for use with the Ads Partner services. Any obligations imposed on Merchant under Toast’s Merchant Agreement in relation to Merchant’s processing of personal information shall continue to apply here. 
    2. Merchant is responsible for setting up Campaigns and for providing all content, copy, creatives and other materials for such Campaigns (“Campaign Materials”). Merchant is responsible for the accuracy, quality, content and legality (including compliance with Applicable Law and Rules) of the Campaigns, advertisements and Campaign Materials.
11. Integration; API Terms.
    1. Integration. Merchant agrees and acknowledges that in order to enable the Pilot Program, Toast and/or Ads Partner(s) as the case may be may develop an application programming interface (“API”) integration to facilitate the services, including sharing of certain information with Ads Partner(s) in furtherance of this Agreement and the pilot initiative (the “Integration”).  Merchant will take affirmative steps to enable the Toast Pilot Program, for example by opting into the integration via Merchant’s Toast account, to the extent communicated by Toast.
    2. API Terms. The API Integration is governed by the Toast API Agreement (the “API Terms”) which is hereby incorporated by reference.
12. Media Center. 
    1. The Pilot Program may contain features that enable Merchant to upload content to a designated storage space for use in Campaigns (the “Media Center”). Merchant is solely responsible for all content, including ensuring that content complies with all Applicable Laws and Rules and the Terms. The Media Center is intended solely to facilitate the Pilot Program and related services and is not intended as a long-term storage solution. Toast may delete content from the Media Center at any time and for any reason without notice, including without limitation, if the content violates any of the Terms or is no longer needed to facilitate the Pilot Program or related services.
13. Confidentiality. For the avoidance of doubt, the terms and existence of this Agreement, including but not limited to the existence of the Pilot Program and Toast’s relationship with Ads Partner(s) shall be considered Confidential Information.
14. Representations & Warranties. 
    1. Each party warrants that it has the right and power to enter into this Agreement and to convey the rights granted herein.
    2. Merchant represents and warrants that the signatory hereto  has the authority to bind the Merchant to the terms of this Agreement.
    3. Merchant represents, warrants and covenants that it shall comply with all Applicable Law and Rules, including without limitation with respect to any Campaign, the content and copy of any advertisement and the Campaign Materials.  
    4. Merchant represents, warrants and covenants that it has all necessary rights to the Campaign Materials used or shared in connection with this Pilot Program.
15. Waiver of Liability. Merchant agrees and acknowledges that Toast shall have no liability to Merchant for any losses or damages Merchant suffers as a result, whether directly or indirectly, in connection with Toast’s control over the Account(s), performance of any Campaign, or the Pilot Program. Merchant further agrees and acknowledges that Merchant shall have no right to bring any claims in law or equity against Toast in connection with Toast’s actions or omissions in connection with this Agreement and the Pilot Program or pursuant to the Pilot Program and, except to the extent prohibited by law, expressly waives any such rights. Notwithstanding the foregoing, Merchant may be allowed to bring claims against Ads Partner(s) to the extent permitted by the applicable Ads Partner’s terms of service. Merchant agrees and acknowledges that Toast shall not be responsible or liable for providing notice to individuals that the Data is being used for the purposes of the Pilot Program, that the Pilot Program may not support individual opt-outs and other Merchant compliance obligations, and Merchant may need to independently manage such obligations outside of Toast (for example in Merchant’s Account(s)).
16. Indemnification. For the avoidance of doubt, Toast takes no responsibility for the compliance with any Applicable Law and Rules in relation to any Campaign, including without limitation with respect to any content and/or copy of any advertisement or Campaign Materials. Merchant shall indemnify, defend and hold harmless Toast, its affiliates and each of their respective officers, directors, shareholders, agents, representatives, contractors, and employees, and any third party Toast uses to provide the services described herein (including without limitation Ads Partner(s)) from and against claims, loss, damage, suits, actions, liabilities, losses, judgments, costs, and expenses (including, without limitation attorneys' fees and legal expenses) arising out of or relating to (a) Merchant’s participation in the Pilot Program or use of the Services, (b) the Integration, Merchant’s Account(s) or the Ads Partners’ advertising products, (c) any Campaign, (d) the content, copy or subject matter of any advertisement or Campaign Materials, (e) Merchant’s breach of this Agreement, and (f) Merchant’s actual or alleged violation of Applicable Law and Rules. For the avoidance of doubt, the indemnification provisions set forth herein are in addition to the terms of the Merchant Agreement.
17. Third-Party Beneficiary. Toast is a third-party beneficiary to any terms of service between the applicable Ads Partner and Merchant.

EXHIBIT A

1. Definitions. “Beta Products” means the Toast software, hardware, website, application, support, or other products and/or features made available to Merchant as a Beta Testing Program participant, which may not yet be available to the public or to other Toast Merchants in the normal course of business.  
2. License. Toast grants to Merchant a limited, non-exclusive, non-transferable, royalty-free, revocable license to access and use the Beta Products, solely for the purpose of participation in the Beta Testing Program. Merchant shall not use the Beta Products for any purpose beyond the scope of the Beta Testing Program, nor shall Merchant directly or indirectly allow access to and/or use of the Beta Product(s) by any third party. 
3. Restrictions on Use. Except as expressly permitted in this Beta Agreement, Merchant shall not, and shall not permit others to engage in any activity prohibited under Section 4.1 of the Toast Merchant Agreement. The Beta Products may be evaluated solely at the approved location (“Location”), and may be used only by Merchant and its employees.  Merchant shall not remove the Beta Products from the Location.
4. Data. As between the parties, Toast (and/or its licensors) owns or has license to all rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Beta Products provided under this Beta Agreement, all of which shall and is expressly intended to remain vested in Toast. Section 5 of the Toast Merchant Agreement shall govern the provision, ownership, and use of data associated with Merchant’s use of the Beta Products, including but not limited to any Feedback submitted by Merchant to Toast in the course of participation in the Beta Testing Program. Any rights not expressly granted herein are reserved by Toast.
5. Confidential Information. Confidential information shall be governed pursuant to the Toast Merchant Agreement, except as expressly stated in this Beta Agreement. Without limitation, Toast’s Confidential Information includes the Beta Products.  The receiving party acknowledges and agrees there may be no adequate remedy at law for breach of this section and that such breach may cause irreparable harm to the disclosing party; therefore, in the event of a breach or threatened breach of this section by the receiving party, the disclosing party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Beta Agreement. 
6. Disclaimer of Warranties. Merchant acknowledges and agrees that by their nature, Beta Products are still under development when made available to Merchant, and have not been commercially released for sale or subscription by Toast. Beta Products may not be fully functional, and may include design flaws, errors, bugs, or other problems, including problems that may impact the operation of Merchant’s existing Services. Merchant acknowledges and agrees that Beta Products may contain fewer features or different commercial terms than subsequent, generally available versions. Toast retains the right to alter, modify, suspend or cancel the Beta Products, the Beta Testing Program, and/or Merchant’s participation in it at any time, in its sole discretion. 
7. THE TOAST BETA PRODUCTS ARE PROVIDED “AS IS” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USE OR TRADE.  TOAST SHALL HAVE NO LIABILITY TO MERCHANT (OR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, OR PARTNERS) OR ANY THIRD PARTY RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.  IN NO EVENT WILL TOAST BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, COVER OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR REVENUE, LOST BUSINESS OPPORTUNITIES, LOST SAVINGS, LOST DATA, OR COMPUTER FAILURE, EVEN IF TOAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANOTHER LIMITED REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE.
8. Compliance with Applicable Laws. Merchant acknowledges and agrees that Merchant is solely responsible for its own compliance with Applicable Law and Rules, including without limitation its use of the Beta Products.
9. Term and Termination. This Beta Agreement shall commence on the date that Merchant demonstrates consent to these terms, and shall expire at the end of Merchant’s participation in the Beta Testing Program. This Beta Agreement will automatically terminate upon any material breach by Merchant of any of its obligations hereunder. If Merchant breaches this Beta Agreement, Toast may immediately remove Merchant from the Beta Testing Program and revoke Merchant’s access to any Beta Products.. If Toast determines that any Beta Products Merchant is testing will be released as a generally available part of the Toast Services, Merchant’s participation in the Beta Testing Program as to that Product shall expire as of the date that Product becomes generally available. Toast may terminate this Beta Agreement and Merchant’s participation in the Beta Testing Program at any time and for any reason in Toast’s sole discretion.