Marriott Property Agreement


Exhibit 1

Defined Terms

Exhibit 2

Description of POS SaaS Solution

Appendix 2-A

System Requirements

Appendix 2-B

Reports Guide

Appendix 2-C

User Guide

Exhibit 3


Exhibit 4


Appendix 4-A


Exhibit 5

POS Support Services

Exhibit 6

Service Level Agreement and Priority Levels

Exhibit 7


Exhibit 8

Charges and Rate Card

Exhibit 9


Appendix 9-A


Exhibit 10

Training Requirements

Exhibit 11

Information Security Requirements

Exhibit 12

Data Processing and Transfer Addendum

Exhibit 13

Marriott Human Rights Statements

Exhibit 14


Exhibit 15


Exhibit 16




Toast, Inc. (“Provider”) has entered into a Master Software as a Service Agreement dated May 16, 2023, with Marriott International Administrative Services, Inc. (“Marriott”) (“MSA”), pursuant to which Toast is approved to provide Property Owners with the right to access and use the Toast point of sale system (“POS”), Hardware and related services (collectively referred to as “Services”). Property’s access to and use of the POS is governed by the Order Form and the following terms and conditions, including any Exhibits or Appendices attached hereto (collectively the “Property Agreement”).  For the purposes of this Property Agreement, the owner, operator, franchisee, or other entity authorized to act on behalf of the property (“Property Owner”) is identified as Property.

This property agreement is entered into by and between Property Owner and Provider as of the date that Property executed this property agreement (“Effective Date”).


    1. Liability under a Property Agreement.  The Parties acknowledge and agree that Property Owner will have no liability to Provider (or any other party to a Property Agreement) for a breach by Marriott of the MSA.  The Parties further acknowledge and agree that Provider will not have any liability to Property Owner for a breach by Provider of the MSA and that Provider’s liability for breach of the MSA is exclusively to Marriott.

    2. Property Agreement Term.The term of each Property Agreement will begin on the contract start date set forth on the Order Form and will continue for a period of 36-months from the Property Go Live Date set forth on the Order Form (“Initial Term”). Thereafter, this Property Agreement will automatically renew, with no further action required by Property or Provider, for additional 12-month periods (“Renewal Term”) on the same terms and conditions unless terminated by Property upon notice to Provider at least thirty (30) days prior to the automatic renewal of this Property Agreement (such Initial Term together with any Renewal Terms, the “Property Agreement Term”). The Parties acknowledge that the Early Termination Fee (as defined below) shall not apply if a Property terminates this Property Agreement for convenience after the Initial Term and subsequent two (2) Renewal Terms. The pricing agreed upon in Exhibit 8, including the POS subscription fees to access and use the POS will remain unchanged during the Initial Term of this Property Agreement and will be subject to an automatic increase of three percent (3%) at the beginning of each Renewal Term.


    1. Provider hereby grants to Property and Users, including any third-party providers or suppliers authorized by Property solely for the benefit of Property’s internal business (“Third Party Providers”), a limited, non-exclusive, non-transferable, revocable right to access and Use the POS during the Property Agreement Term. Such rights include the right to access and use Documentation supplied to Property under this Property Agreement (and to copy such Documentation, subject to the limitations of the Property Agreement) solely for the purpose of and to the extent necessary for Property to receive and use the Services (“Use”). With respect to Third Party Providers, such access and Use is allowed solely to the extent needed for such Third Party Providers to perform the services that are solely for Property’s benefit and internal business purposes contracted between the Third Party Provider and Property. 

    2. Property will not: (a) access or use the Services in a manner that exceeds the scope of the rights granted in this Property Agreement; (b) copy or modify the POS or any part thereof; (c) sell, lease, transfer, sublicense or otherwise distribute the POS or any part thereof; (d) use the Services to provide service bureau, time sharing, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the POS or any part thereof available to third parties; (e) modify, disassemble, decompile, adapt or reverse engineer the POS or any part thereof, nor permit any third party to do so, or create derivative works based on the POS or any part thereof, except to the extent such restrictions are prohibited by law; (f) delete or in any manner alter the copyright, trademark, or other proprietary rights notices appearing in the Services and appearing in any Documentation, (g) 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; (h) use the Services for any fraudulent undertaking or in any unauthorized manner (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the POS or other aspects of the Services); or (i) violate or breach any operating procedures, requirements or guidelines regarding Property’s use of the Services that are posted on or through the POS or otherwise provided or made available to Property; or (j) conduct any penetration or vulnerability testing on the Service or Provider’s network. Provider reserves any and all rights and licenses in and to the Services that are not expressly granted to Property pursuant to this Property Agreement. 

    3. Property is (a) responsible for maintaining the security and control of its premises, equipment (including Hardware and associated firmware), and username(s) and access passwords to its account with Provider (“Toast Account”); and (b) liable for all activity of the Users whether authorized by Property or not.  Property agrees to promptly notify Provider if it becomes aware of any unauthorized activity or access to its Toast Account or POS and will cooperate with Provider to prevent any further unauthorized activity. Furthermore, regarding Hardware being shipped to the Property, Property agrees that change of title and ownership and risk of loss shall transfer to the entity that the Hardware is shipped to at the point of shipment.

    4. As part of the Services, Provider will provide access to Provider’s online and offline POS either installed on Hardware, or made available for download by Property online, that enables Users and customers to interface with, access and use the POS, including certain Toast Apps. When Users download or use the POS, Property must ensure the Users read and agree to the End User License Agreement, which protects Provider’s rights in the Services and allows use of the POS only for the internal purposes of Property and Users accessing and using the Services. To the extent the End User License Agreement contain terms and conditions that are in conflict with the negotiated provisions of this Property Agreement, the terms of this Property Agreement shall control.

    5. As part of the Services, Provider may from time to time communicate with Property using the contact methods provided by Property at the time of application and/or during Property’s use of the Services. Property expressly agrees that if it or any of its employees provide a mobile phone number or email address to Provider, Provider is authorized to contact the Property 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 Property.

    6. Property 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 data in the appropriate space displayed on the applicable device; Property and/or employees are NOT permitted to add or modify any Customer information (including but not limited to phone number and email address) on behalf of a Customer unless requested by the Customer; (b) Property shall not send any communications, including transactional or commercial messages, to Customers in violation of Law, including without limitation the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act (2003) and Canada's anti-spam legislation contained in An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced).


    1. Provision of Services.  Commencing on the Effective Date, Provider will perform the services, functions and activities described in this Property Agreement, including making available the POS in accordance with Exhibit 2 and any Professional Services (collectively, the “Services”).

    2. Scope of Professional Services; and Required Resources.  Any Services will be described in this Property Agreement (including the Service Levels).  Except as otherwise expressly provided in this Property Agreement, Provider will be responsible for providing the labor, materials, services, facilities, equipment, Software, technical knowledge, training, expertise and other resources necessary for Provider to properly perform its obligations in accordance with the requirements of this Property Agreement (including Service Levels), collectively, for the Charges that are set forth in Exhibit 8 and at no additional charge to Property.

    3. Reporting and Analytics.  Provider will provide to Property Owner the reports (A) described in this Property Agreement, including any reports identified in Appendix 2-B to Exhibit 2, at the frequency and in the format specified therein or in this Section and (B) offered by Provider as standard reports to all Provider customers (collectively, “Reports”).  All Reports will be provided at no additional charge to Property Owner.  Property Owner may request additional reports on an ad hoc basis as agreed upon by the Parties.  Unless otherwise specified in this Property Agreement, all periodic Reports will be provided  in an electronic format, unless otherwise requested by Property Owner and agreed upon by Provider.  In addition to providing Property Owner the foregoing reports, the POS will include functionality permitting Property Owner and Property Owners to run the functional reports described in Appendix 2-B to Exhibit 2.  

    4. User Guide. Throughout the Property Agreement Term, Provider will maintain a user guide in the form set forth in Appendix 2-C to Exhibit 2 (“User Guide”).    


    1. General.  The terms set forth in this Section will apply to any projects or project-based Professional Services performed by Provider under a Statement of Work that is not yet contemplated under this Property Agreement as of the Effective Date (each, a “Project”). Requests for new Projects will be made in accordance with Section 4.2.

    2. Statements of Work.  Provider will perform each Project pursuant to a mutually agreed upon statement of work that describes each Party’s obligations with respect to the applicable Project and sets forth the timeline for completing such Project and any other plan details appropriate based on the contemplated Project (each, a “Statement of Work”).  Within a commercially reasonable period of time after receiving a Project request from Property Owner or in connection with any Project proposed by Provider, Provider will prepare and submit an initial draft of a Statement of Work for Property’s review and approval and if requested by Property Owner and appropriate in view of the scope of the requested Professional Services, a detailed project plan.  Provider will cooperate with Property Owner in finalizing each Statement of Work (including incorporating Property’s reasonable comments), and any subsequent changes to a Statement of Work will be subject to both Parties’ written approval.  


    1. System Requirements.  The minimum Systems and environment configuration requirements necessary as of the Effective Date to properly access and use the POS in accordance with the requirements of this Property  Agreement are described in Appendix 2-A to Exhibit 2 (“System Requirements”). 


    1. Roadmap.   Provider may provide a copy of enhancements that Provider plans to make to the POS during the Term (the “Roadmap”) to a Property Owner upon its request.  Dates contained in any Roadmap presentation or documentation are estimates only and, for the avoidance of any doubt, Provider’s failure to meet any of such Roadmap items, including new versions of software features and hardware products (including those subject to availability as provided for herein), shall not constitute a breach of this Property Agreement nor shall it give rise to Property Owner’s ability to terminate this Property Agreement. Provider provides no assurances that it will introduce future products, features or enhancements described in any presentation containing Provider Roadmap information, and Provider assumes no responsibility to introduce such products, features or enhancements. Property Owner further acknowledges: (i) current purchasing decisions are not made based on the reliance on the timeframes or specifics outlined in the Roadmap information; and (ii) if Provider delays or fails to introduce future products, features or enhancements, Property Owner's current purchasing decisions would not be affected.  


    1. Service Levels; Methodology.  Provider will perform the Services in a manner that meets or exceeds the Service Levels in accordance with and subject to the terms and conditions set forth in Exhibit 6.  The Service Levels are designated as “Critical Service Levels” and “Key Performance Indicator” as so identified in Exhibit 6. In the event that Provider suffers a Service Level Failure with respect to a Critical Service Level, Provider will incur a Service Level Credit in accordance with Exhibit 6.  Key Performance Indicator (“KPI”) are Service Levels that measure performance aspects of the Services but that will not result in a Service Level Credit in the event of a Service Level Failure.

    2. Support Services.  Provider will (A) commencing on the Property Go Live Date provide the Support Services set forth in Exhibit 5 during the term of the Property Agreement.

    3. Training.  Provider will provide the training described in Exhibit 10.  


    1. Compliance with Laws.  Each Party will perform its obligations under this Property  Agreement in a manner that complies with all applicable Laws. 

    2. Specific Compliance Obligations.  Provide will provide Services in compliance with the human rights statement provided by Marriott attached in Exhibit 13.  Property Owner will abide by Provider’s Community Philosophy, attached hereto in Exhibit 13. Provider will not tolerate threats, harm, or intimidation tactics towards Provider employees- whether actual, veiled, or implied–including without limitation, derogatory or degrading language, threats, bullying, harassment, and/or intimidation.  


    1. Property Owner IP.  As between the Parties, all right, title and interest in and to the IP owned by Property Owner that Property Owner makes available to Provider under this  Property Agreement (“Property Owner IP”) will remain the exclusive property of Property Owner.  Property Owner hereby grants to Provider, solely for the purpose of providing the Services a non-exclusive, worldwide, nontransferable, fully paid up and royalty-free, limited right to Use the Property Owner IP, subject to the following: the rights granted to Provider hereunder will automatically expire upon the earlier of (1) the date upon which Provider ceases, for any reason, to provide the Services, and (2) the expiration or earlier termination of the Property Agreement.

    2. Provider IP.  As between the Parties, and except as expressly set forth in this Section, all right, title and interest in Provider IP will remain the exclusive property of Provider.  Provider hereby grants (and, if such Provider IP is licensed from a third party, will procure from the applicable third-party licensor the right to grant) to Property Owner a non-exclusive, worldwide, nontransferable, non-sublicensable, fully paid up, royalty-free license to Use the Provider IP ), other than the POS (to which Property Owner and the Users’ right to access and use is set forth in Section 2.1), solely to the extent necessary to receive the Services.  Property Owner will not be required to enter into any ancillary agreements before, during or after the Property Agreement Term in order to utilize the  Provider IP to receive the Services from Provider as described in this Property Agreement.  To the extent Provider IP is licensed to Provider from third parties, any rights granted to Property Owner hereunder will be subject to all restrictions set forth in the applicable third party agreements and Provider will advise Property Owner of any such restrictions in writing (email to suffice) reasonably in advance of Property use of such Provider IP.   The rights granted to Property Owner hereunder will automatically expire upon the earlier of (1) the date upon which Provider ceases, for any reason, to provide the Services, and (2) the expiration or earlier termination of this Property Agreement.

    3. Ownership / Feedback.   If Property Owner provides to Provider any suggestions, ideas, improvements, modifications, feedback, error identifications, bug reports or other similar information related to the POS or the Services (“Feedback”), Property Owner hereby grants Provider a perpetual, irrevocable, royalty-free right and license to use, disclose, and exploit such Feedback without restriction and for any purpose, including to improve the Services and to develop, market, offer, sell, and provide other products and services.  For avoidance of doubt, the incorporation of any Feedback into the POS or Services or any component thereof does not in any way modify Provider’s exclusive ownership rights in and to the POS or Services.

    4. Service Marks.   Property Owner hereby grants Provider a limited, revocable, non-exclusive, non-sublicensable, non-transferable right to use and display the Property Owner Marks in accordance with Marriott’s then current guidelines provided by Property Owner to Provider solely (A) during the Property Agreement Term, (B) to the extent necessary to provide the Services, and (C) with Marriott’s express, prior consent and only in the specific manner approved in writing by Marriott.  Provider acknowledges that it does not have nor will it obtain any proprietary interest in such Property Owner Marks or any other Property Owner proprietary or intellectual property.  Provider agrees not to use such Property Owner Marks or any other proprietary or intellectual property, or marks or names confusingly similar thereto, as part of its corporate or business name, or on its letterhead or other business stationery or cards.


    1. Property will promptly provide Provider with any information, resources and assistance required by Provider to enable the implementation of the POS at a Property or ongoing provision of the Services for Property as described herein and, if applicable, to provide training to the Property employees. Any dates specified in this Property Agreement are estimates only and are contingent upon Property’s timely compliance with its obligations relative to such implementation and any dependencies on Property’s performance. If, and to the extent of, any default or breach on the part of Provider under this Property Agreement that is caused in whole or in part as a result of Property ‘s failure to timely perform its obligations under this Property Agreement, then Provider shall be entitled to relief from all liability with respect to such failure or delay, and may, in its sole discretion, terminate the Property Agreement, or any part thereof, upon five (5) days’ prior written notice to Property.


    1. Charges. All charges applicable to the Property for use of the Services, will include any Hardware costs, implementation, set-up, training or other charges for Professional Services and the subscription charges applicable to such Property and described in the Order Form (“Charges”), no other charges are payable for the POS under this Property Agreement.  The Charges shall be due and payable by Property within thirty (30) days of issuance of the applicable invoice. 

    2. Reimbursable Expenses.  To the extent agreed by Property Owner in Exhibit 8, Property Owner will reimburse Provider for the actual, ordinary, necessary and reasonable business expenses incurred by Provider while traveling at the request of and for the benefit of Property Owner in connection with providing Services.  Ordinary business expenses are those that are customary or usual in the business community, and necessary business expenses are those expenses that are appropriate and helpful for the performance of the Services.  To qualify for reimbursement, receipts are required for all expenses over $25.  Property Owner will reimburse Provider for coach fare for air or rail transportation, provided that for flights exceeding seven hours, Property Owner will allow a business class fare upgrade.  Property Owner will not pay Provider for hourly or any other form of labor charges for any time Provider spends in transit to or from any Property Owner location.  Property Owner will not reimburse Provider for travel, local transportation or parking expenses for any travel to or from a Property Owner location originating or ending within 50 miles of such Property Owner location.  Any expense or series of expenses that exceed or is expected to exceed $5,000 will require Property Owner’s prior approval.  Property Owner may notify Provider in writing of changes to these limits, which will be effective prospectively.  No other expenses will be reimbursable by Property Owner under this Property Agreement, unless expressly agreed by Property Owner in writing.

    3. Suspension Rights. Provider may suspend Property Owner’s username and password, Toast Account and access to the Services, upon written notice to such Property Owner in the event any of the following occur: (a) Property Owner fails to make any payment due within thirty (30) days and fails to cure such non-payment within thirty (30) days after receipt of notice; (b) Property Owner violates usage and access restrictions in accordance with Section 2.

  1. Taxes.

    1. All amounts payable under the Agreement are exclusive of any value added, goods and services, sales, excise or similar taxes, including withholding taxes (“Taxes”). To the extent applicable to a Property Owner, such Property Owner is responsible for, and agrees to pay, Taxes associated with its purchase of, access to, or use of any goods or services under this Property Agreement.  If required by law, Provider will collect from Property Owner and remit to the appropriate governmental authorities any Taxes applicable to the provision of the Services or Deliverables, if any.  In connection with any Taxes collected and remitted by Provider on Property Owner’s behalf, Provider will issue the required tax invoice to Property Owner unless Property Owner provides Provider with a timely and valid tax exemption certificate authorized by the appropriate governmental authority.  If Property Owner has paid Taxes to Provider, Property Owner will have no other responsibility with respect to such Taxes and Provider will be responsible for promptly paying such Taxes to the appropriate governmental authority.  If it is later determined that any such Tax, or any portion thereof, was not required, Provider will promptly refund the overpaid amount to the respective Property Owner, upon receipt of such refund from the appropriate governmental authority. To the extent applicable law requires any Taxes to be paid by Property Owner directly to a governmental authority or to the extent a reverse charge mechanism is available and applicable to Property Owner will account for and pay such Taxes according to applicable requirements of law.

    2. Throughout the Property Agreement Term, the Parties will cooperate to accurately determine and minimize, to the extent commercially reasonable, their respective tax liabilities.  Each Party will provide tax information or tax documents reasonably requested by the other Party in connection with this Property Agreement and will promptly notify the other Party of any claim for taxes asserted with respect to this  Property Agreement.


    1. Issuance of Invoices.  Provider will invoice each Property Owner for the applicable Services directly pursuant to the terms of the Property Agreement.  Any amount due under the Property Agreement for which a time for payment is not otherwise specified will be due and payable within thirty (30) days after invoice date for such amount by the Property Owner.   The Property Owner shall be solely responsible for payment for the applicable Services under this Property Agreement and Marriott is not deemed a guarantor of charges incurred by a Property Owner.   To the extent a credit may be due to Property Owner pursuant to Section 7.1, Provider will credit such amounts to Property Owner on the next invoice submitted by Provider following the period in which the applicable credits were discovered.


    1. Confidential Information.

      1. The parties each acknowledge that they may be furnished with, receive or otherwise have access to the Confidential Information of the other party. As used herein, “Confidential Information” means all information, in any form, furnished or made available directly or indirectly by one party to the other that is marked confidential, restricted, or with a similar designation or which, given the nature of the information or the circumstances of disclosure, should reasonably be understood to be confidential, including the terms and conditions of this Property Agreement (including any Charges), the POS and its documentation, all of which are Provider Confidential Information. Each party’s Confidential Information will remain the property of that party. Nothing contained in this Section will be construed as obligating a party to disclose its Confidential Information to the other party, or as granting to or conferring on a party, expressly or impliedly, any rights or license to the Confidential Information of the other party.

      2. Each party will (a) hold Confidential Information received from the other party in confidence and, except as expressly permitted by this Section, or by the express, prior approval of the disclosing party in each instance, which approval may be withheld or granted by the disclosing party in its sole discretion, not provide, disseminate, sell, assign, lease, transfer or otherwise dispose of, disclose to or make available any Confidential Information of the disclosing Party to any third party, (b) use at least the same degree of care as it employs to avoid unauthorized disclosure of its own information, but in any event no less than commercially reasonable efforts, to prevent disclosing to third parties the Confidential Information of the other Party, and (c) not use the Confidential Information of the other party for any purpose other than to exercise or fulfill its rights and obligations under this Property Agreement,  Provider may disclose Property Confidential Information to its employees, directors, attorneys, auditors, accountants, and other third parties (as and to the extent necessary for performance of the Services), and Property may disclose Confidential Information of Provider to its employees, directors, attorneys, auditors, accountants, and third parties, as and to the extent necessary for Property to obtain the benefits of this Property Agreement, where in each such case: (i) the recipient has a need to know the Confidential Information for purposes of performing his or her obligations under or with respect to this Property Agreement (or, with respect to third parties, the applicable contract) or as otherwise naturally occurs in such person’s scope of responsibility; (ii) such disclosure is made pursuant to obligations of confidentiality that are no less stringent than those set forth in this Section; and (iii) such disclosure is not in violation of applicable law. The receiving party assumes full responsibility for the acts or omissions of any person or entity to whom it discloses Confidential Information of the disclosing party regarding their handling, protection and use of such Confidential Information. A party may disclose Confidential Information of the other party as required to satisfy any legal requirement of a governmental authority, provided that, immediately upon receiving any such request and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure so that the other party may interpose objection to such disclosure, take action to ensure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

      3. The obligations set forth in this Section will not apply to information that the applicable party can demonstrate: (a) was, at the time of disclosure to it, in the public domain; (b) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party; (c) was in the possession of the receiving party without any duty or obligation of confidentiality to the other party or such party’s affiliates at the time of disclosure to it; (d) was received after disclosure to it from a third party who had a lawful right to disclose such information to it without any obligation to restrict its further use or disclosure; or (e) was independently developed by the receiving party without reference to Confidential Information of the other party.


    1. Use of Property Personal Data. Provider will not Process any Property Personal Data obtained under the Property Agreement for any purpose other than performing the Services in accordance with the Property Agreement or other documented instructions of Property (e.g., in no event may Provider sell or otherwise disclose Property Personal Data to any third party for the commercial benefit of Provider or any third party).  Upon request by Property, Provider will certify that it understands and is in compliance with all of the restrictions applicable to its Processing of Property Personal Data under this Property Agreement.  Provider will (a) Process all Property Personal Data in accordance with applicable laws (including privacy laws), (b) assist Property as necessary for Property to comply with applicable Laws, (c) Process Property Personal Data in accordance with and subject to Exhibit 12 and d) keep Property Personal Data no longer than is necessary for the purposes for which it is being Processed.  Provider will ensure that any Property Personal Data that is inaccurate or incomplete is erased or rectified in accordance with Property’s instructions.

    2. Data Authority Requirements and Cross-Border Transfers. Provider and Property will comply with all local Laws related to the gathering, storage and Processing of Personal Data, including the requirements of data authorities for the applicable jurisdiction.   To the extent Provider seeks to transfer Property Personal Data outside the jurisdiction where the information was collected,  Provider’s Transfer of Property Personal Data from one jurisdiction to another shall be  in compliance with applicable Privacy Laws, including any local Laws imposed by data authorities for the applicable jurisdictions.  All Transfers will also be subject to the applicable provisions of Exhibit 12 to the extent applicable and if Provider Personal Data is Processed.

    3. Return or Disposal of Property Personal Data.  To the extent not covered under the MSA, Provider agrees to dispose of Property Personal Data in line with Provider’s applicable retention periods or as otherwise required under the applicable Law. 

    4. Property Owner Data.

      1. General. Property Data will be and remain, as between the Parties, the property of Property Owner.  Provider will not possess or assert any lien or other right against or to Property Data.  Provider will back up the Property Data in its possession or control on a daily basis and will archive the Property Data on a regular basis (no less frequently than 30-day intervals).  Provider will store all back-up and archival copies of such Property Data in a secure off-site facility maintained by Provider (or an approved Provider Agent).  Upon Property Owner’s request, Provider will provide Property Owner with copies of, and access to, such back-up and archival copies of the Property Data.  Provider will maintain, at all times, back up servers that will host an exact duplicate of the Property Data in its possession such that in the event the Services or Property Data or any part thereof becomes unavailable, Property Owner may access and use the Services and Property Data on the back up servers in sufficient time to comply with the applicable RTOs and Service Levels.  Regardless of whether Property Owner approves of the provision of certain Services from a location or facility located outside of a country in which Property receives the Services, in no event will Provider physically install Software owned or licensed by Property (or electronically install such Software, if the media is in electronic form) on any server or other equipment, or store any Property Data on any server or other equipment, at a location or facility located outside of the United States.

    5. Data Safeguards.   Provider will establish and maintain safeguards against the disclosure, destruction, loss or alteration of Property Data in the possession or control of Provider in line with the requirements set out in Exhibit 11.  Such measures will include, where appropriate, use of updated firewalls, virus screening software, logon identification and passwords, encryption, intrusion detection systems, logging of incidents, periodic reporting, and prompt application of current security patches, virus definitions and other updates.  Without limiting the foregoing, Provider will comply with the security requirements set forth in Exhibit 11.  Provider will promptly notify Property Owner if, during the Term, Provider materially modifies its security procedures, policies or controls applicable to Provider’s Systems.  In no event will Provider (a) make any changes to its security procedures, policies or controls applicable to Provider’s Systems that could adversely affect Property’s ability to access or use the POS, or that will result in measures or protocols being less stringent than those set forth in Exhibit 11, Property Owner has the right to make and to keep backup Property Data if it chooses.

    6. In the event Provider Processes information that (1) cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly to Property or a particular individual and does not constitute Personal Data (“Deidentified Data”), or (2) relates to multiple individuals or entities that fall into the same group or category from which identities of the individuals or entities have been removed and that is not linked or reasonably linkable to Property, Marriott or to any individual or household, including via a device and does not constitute Personal Data (“Aggregated Data”), Provider will implement the following measures at a minimum: (a) technical safeguards that prohibit reidentification of individuals to whom such information may pertain; (b) business processes that specifically prohibit reidentification of such information; and (c) business processes to prevent inadvertent release of such deidentified information.  Provider represents and warrants that it will make no attempt to reidentify Deidentified Data or Aggregated Data. To the extent that information qualifies as Aggregated Data, Provider shall be free to use that information for its own purposes, provided that the Aggregate Data is not attributable to Property or Marriott in any way.

  1. Representations; Disclaimer of Warranties.

    1. Limited Warranty and Return Policy. Provider represents, warrants and covenants to Property Owner that, during the Term, the POS will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by Provider to Marriott, as the same may be updated by Property Owner from time to time in the ordinary course of business (together the “Specifications”) and the Description of the POS Services in Exhibit 2. Marriott’s sole and exclusive remedy for Provider’s breach of this limited warranty is limited to Provider correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement. Any Hardware sold by Provider to Property Owner hereunder is covered by Provider’s Limited Warranty Policy and the Toast, Inc. Return Policy available at, which is hereby incorporated by reference and made part of this Agreement.

    2. Provider does not warrant that the Services will be compatible with Marriott’s mobile device or third-party carrier. Marriott’s use of the Services may be subject to the terms of Marriott’s agreements with its mobile device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and Property Owner is solely liable for the payment of all such carrier fees.



    1. By Provider.  Provider will indemnify, defend and hold harmless Property Owners and their respective officers, directors, employees, agents, successors and assigns (collectively, the “Property Indemnitees”) from and against any Losses suffered, incurred or sustained by any Property Indemnitee or to which any Property Indemnitee becomes subject, resulting from, arising out of, or relating to, any actual or threatened third party Claims relating to: (a) injury or death of any person (including employees of Provider, Property’s employees or contractors or customer of Property; or (b) the loss or damage to any tangible property (including tangible property of the employees of Provider, Property employees or customers of Property), in each case resulting from negligent acts of omissions (including breach of contract) of Provider; or that the Provider Provided Resources infringe or misappropriate the intellectual property or other proprietary rights of any third party, except to the extent such infringement is a result of:  (1) use of the Provider Provided Resources by Property in contravention of the applicable Documentation or license granted to Property under Section 9; (2) any material modifications made by Property not intended or expressly authorized by Provider; (3) Provider complying with written instructions or designs required or provided by Property where such compliance necessarily would give rise to such infringement but only (a) if there is no non-infringing alternative to meet Property’s written instructions or designs, and (b) such instructions and designs are not of Provider’s origin, design or selection; or (4) combination of the Provider Provided Resources by Property with products or systems other than those provided by, or authorized by, Provider but only if such infringement would have not occurred absent such combination and such combination was not reasonably required to use the Provider Provided Resources for their intended purpose.

    2. By Property Owner. Property will indemnify, defend and hold harmless Provider and their respective officers, directors, employees, agents, successors and assigns (collectively the “Provider Indemnitees”) from and against any Losses suffered, incurred or sustained by any Provider Indemnitee or to which any Provider Indemnitee becomes subject, resulting from, arising out of, or relating to, any actual or threatened third party Claims relating to: (a) any amounts, including taxes, interest and penalties, assessed against Provider which are the obligation of Property; (b) claims against Provider related to the use by Provider of any Property Data or any of Property’s intellectual property, other than those attributable to Provider’s gross negligence, or willful misconduct or in violation of this Property Agreement or (c) that the Property Owner IP infringes or misappropriates the intellectual property or other proprietary rights of any third party; except to the extent such infringement is a result of:  (1) use of the Property Owner IP by Provider in contravention of the Property Agreement or license granted to Provider under Section 9; (2) modifications made by Provider other than at the direction of Property Owner; (3) Property Owner complying with instructions or designs required or provided by Provider where such compliance necessarily would give rise to such infringement; or (4) combination of the Property Owner IP by Provider with products or systems other than those provided by, or authorized by, Property Owner.  Property Owner will indemnify Provider from any reasonable costs and expenses incurred in connection with the enforcement of this Section. 

    3. Indemnification Procedures.  With respect to any third-party Claim subject to indemnification, promptly after receipt by any entity entitled to indemnification under this Section of notice of the assertion or the commencement of any Claim by a third party in respect of which the indemnitee will seek indemnification pursuant to this Section, the indemnitee will notify the indemnitor of such Claim in writing.  No failure to so notify an indemnitor will relieve it of its obligations under this Property Agreement except to the extent that it can demonstrate damages attributable to such failure.  Within fifteen (15) days following receipt of notice from the indemnitee relating to any Claim, but no later than ten (10) days before the date on which any response to a complaint or summons is due, the indemnitor will notify the indemnitee in writing if the indemnitor acknowledges its indemnification obligation and elects to assume control of the defense and settlement of that Claim (a “Notice of Election”).  If the indemnitor delivers a Notice of Election relating to any Claim within the required notice period, the indemnitor will be entitled to have sole control over the defense and settlement of such Claim; provided, however, that (A) the indemnitee will be entitled to participate in the defense of such Claim and to employ counsel at its own expense to assist in the handling of such Claim and (B) the indemnitor will obtain the prior approval of the indemnitee before entering into any settlement of such Claim or ceasing to defend against such Claim.  After the indemnitor has delivered a Notice of Election relating to any Claim in accordance with this Section, the indemnitor will not be liable to the indemnitee for any legal expenses incurred by the indemnitee in connection with the defense of that Claim.  In addition, the indemnitor will not be required to indemnify the indemnitee for any amount paid or payable by the indemnitee in the settlement of any Claim for which the indemnitor has delivered a timely Notice of Election if such amount was agreed to without the consent of the indemnitor.  If the indemnitor does not deliver a Notice of Election relating to a Claim, or otherwise fails to acknowledge its indemnification obligation or to assume the defense of a Claim, within the required notice period, the indemnitee has the right to defend the Claim in such manner as it may deem appropriate, at the cost and expense of the indemnitor, including payment of any judgment or award and the costs of settlement or compromise of the Claim.  The indemnitor will promptly reimburse the indemnitee for all such costs and expenses, including payment of any judgment or award and the costs of settlement or compromise of the Claim.


    1. Neither Party shall be liable to the other for special, indirect, incidental, consequential, exemplary or punitive damages of the other or for any form of damages (even if advised of the possibility thereof) other than direct damages arising out of, or in connection with, this Property Agreement or the subject matter hereof.  


  1. The limitations set forth in Section 17.2 above will not apply with respect to: (A) Losses occasioned by the fraud, willful misconduct or gross negligence of a party; (B) Claims as finally adjudicated by court judgment or resolved pursuant to a settlement in accordance with Section 16.3 that are the subject of indemnification pursuant to Section 16, which for the avoidance of doubt, may include damages for lost profits, punitive and enhanced damages.   Property Owner cannot assert damages on behalf of any other entity, including without limitation Marriott and Property Owner cannot assert damages against Provider that Marriott is also asserting on Property Owner's behalf.

  1. Disclaimers. Provider disclaims all liability from the acts or omissions of any Integration Partner, including specifically FreedomPay. In the event of any breach or liability by an Integration Partner, Property Owner will pursue a claim directly against such Integration Partner and will not name Provider in such claim or suit.


    1. Informal Dispute Resolution.  Prior to the initiation of litigation, as described in this Section, the Parties will first attempt to resolve their dispute informally, as set forth in this Section.  Either Party may initiate the informal dispute resolution process set forth in this Section by giving notice of a dispute (“Notice of Dispute”) that includes a statement of the dispute.  Within 10 business days of the delivery of the Notice of Dispute, Property Owner and Provider will meet (and will continue to meet as often as the Parties reasonably deem necessary) in order to gather from and furnish to the other all information with respect to the matter at issue which the Parties believe to be appropriate and germane in connection with its resolution and attempt in good faith to resolve such dispute.  If, within forty-five (45) business days of the delivery of the Notice of Dispute, such representatives are unable to resolve the dispute, either Party may escalate the dispute to the Provider Contract Executive.  The Contract Executives will meet (and will continue to meet as often as the Parties reasonably deem necessary) in order to attempt in good faith to resolve such dispute.   All negotiations and proceedings pursuant to this Section will be confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. 

    2. Formal Dispute Resolution.  Litigation of a dispute may be commenced by either Party upon the earlier to occur of any of the following:  (A) either Party concludes in good faith that amicable resolution through informal dispute resolution in accordance with Section 18.1 does not appear likely and (B) 45 business days have elapsed from the delivery of the Notice of Dispute (this period will be deemed to run notwithstanding any claim that the process described in Section 18.1 was not followed or completed); or (C) commencement of litigation is appropriate to avoid the expiration of an applicable limitations period or to preserve a superior position with respect to other creditors; or (D) a Party makes a good faith determination, including as provided in Section 18.1, that a breach of this Property Agreement by the other Party is such that a temporary restraining order or other injunctive relief is necessary.

    3. Governing Law; Jurisdiction; Venue.  This Property Agreement and performance under this Property Agreement will be governed by and construed in accordance with the laws of the state of New York without regard to its choice of law principles. The parties to this Property Agreement irrevocably and unconditionally consent to venue in the state of New York (and hereby waive any claims of forum non conveniens with respect to such venue) and to the exclusive jurisdiction of competent New York state courts in New York County or federal courts in New York for all litigation which may be brought with respect to the terms of, and the transactions and relationships contemplated by, this Property Agreement. The parties further consent to the jurisdiction of any state court located within a district that encompasses assets of a party against which a judgment has been rendered for the enforcement of such judgment against the assets of such party.


    1. Termination for Cause. In the event that:  (A) either Party commits a material breach of an obligation under this Property Agreement that (1) is not capable of being cured within thirty (30) days, or (2) is capable of being cured within 30 days after notice of breach from non-breaching Party to breaching-Party, but is not cured in such 30-day period; or (B) breaching-Party commits numerous breaches of its duties or obligations which collectively constitute a material breach of an obligation under this Property Agreement, then non-breaching Party may, by giving notice to breaching-Party, terminate this Property Agreement, in whole or in part, as of a date specified in the notice of termination, without cost or penalty and without payment of any termination charges.

    2. Termination Due to Termination or Expiration of the MSA. In the event of termination for cause, service level failures, change of control or expiration of the MSA, this Property Agreement will terminate upon thirty (30) day written notice to Provider. In no event will termination or expiration of a property agreement cause a termination of the MSA or any other property agreement.

    3. Termination for Convenience. Property may terminate this Property Agreement, in whole or in part, for convenience and without cause at any time by giving Provider at least thirty (30) days’ prior notice designating the termination date, and paying any Charges for Services properly performed in accordance with this Property Agreement up until the effective date of termination, provided that Property will incur and pay an early termination fee equal to fifty percent (50%) of the remaining POS subscription fees (set forth in the Order Form) that would have otherwise been due for the remainder of the then-current Property Agreement Term (“Early Termination Fee”). If a purported termination for cause by Property is determined by a competent authority not to have been properly a termination for cause, then such termination by Property will be deemed to have been a termination for convenience.

    4. Deflag Event. In the event (a) Property ceases to operate under a brand owned or licensed by Marriott or a Marriott Affiliate or (b) the brand under which Property is operating is changed to another brand owned or licensed by Marriott or a Marriott Affiliate but is not covered by the MSA (a “Deflag”), this Property Agreement will terminate effective on the date that Property will be Deflagged (the “Deflag Date”), without additional liability, except for Charges incurred under this Property Agreement through the effective date of termination and any Early Termination Fee. 

    5. Effect of Termination.  In the event of expiration or termination of this Property Agreement, Provider will, within five (5) business days following the effective date of such expiration or termination (a) Provider will enable Property to retrieve from the POS a copy of the Property Data in Provider’s possession or control (if no format and/or medium is designated, in an industry standard format and medium), (b) return or destroy Confidential Information.


    1. Assignment.  The Agreement will be binding on the Parties and their respective successors and assigns.  Neither Party may, or will have the power to, assign this Property Agreement without the prior consent of the other, except that either Party may assign its rights and obligations under this Property Agreement without the approval of the other party, provided that the assignee or transferee assumes all obligations under this Property Agreement.  Subject to the foregoing, any assignment by operation of Law, order of any court, or pursuant to any plan of merger, consolidation or liquidation, will be deemed an assignment for which prior consent is required and any assignment made without any such consent will be void and of no effect as between the Parties.

    2. Entire Agreement; Amendment.  The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements, whether written or oral, with respect to the subject matter contained in this Property Agreement.  No amendment of this Property Agreement will be valid unless in writing and signed by an authorized representative of each Party (as designated by each Party from time to time). 

    3. Notices.  All legal notices, requests, demands and determinations under this Property Agreement (other than routine operational communications), will be in writing and will be deemed duly given (a) when delivered by hand, (b) one business day after being given to an express courier with a reliable system for tracking delivery, or (c) four (4) business days after the day of mailing, when mailed by U.S. mail, registered or certified mail, return receipt requested, postage prepaid, and addressed to the contact and address set forth on the cover page of this Property Agreement. A party may from time to time change its address or designee for notification purposes by giving the other party prior notice of the new address or designee and the date upon which the change will become effective.

    4. Severability.  In the event that any provision of this Property Agreement conflicts with the Law under which this Property Agreement is to be construed or if any such provision is held invalid by a competent authority, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable Law.  The remainder of this Property Agreement will remain in full force and effect. 

    5. Consents and Approval.  Where agreement, approval, authorization, acceptance, consent, or similar action by either Party is required under this Property Agreement, such action will be in writing and, except where expressly provided as being in the discretion of a Party, will not be unreasonably delayed or withheld.  An approval or consent given by a Party under this Property Agreement will not relieve the other Party from responsibility for complying with the requirements of this Property Agreement, nor will it be construed as a waiver of any rights under this Property Agreement, except as and to the extent otherwise expressly provided in such approval or consent.

    6. Waiver of Default; Cumulative Remedies.  A delay or omission by either Party to exercise any right or power under this Property Agreement will not be construed to be a waiver thereof.  A waiver by either of the Parties of any of the covenants to be performed by the other Party or any breach thereof will not be construed to be a waiver of any succeeding breach thereof or of any other covenant specified herein.  Except as otherwise expressly provided herein, all remedies provided for in this Property Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law or in equity.

    7. Survival.  Any provision of this Property Agreement which contemplates performance or observance subsequent to termination or expiration of this Property Agreement will survive termination or expiration of this Property Agreement and continue in full force and effect. 

    8. Public Disclosures.  Except as may be otherwise agreed by the Parties in writing, neither Party may use the name of the other Party or refer to it or any of its Affiliates, directly or indirectly, in any advertisement, promotion, news release, marketing materials, user lists, customer lists, websites, professional or trade publication, or for any other public purpose, without the prior approval of the other Party.  The foregoing does not prevent announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, which will be coordinated with and approved by the other Party prior to release.

    9. Third Party Beneficiaries.  The Agreement is entered into solely between, and may be enforced only by, Property Owner and Provider, and this Property Agreement will not be deemed to create any rights in, or obligations of a Party to, third parties, other than obligations owed to Property. 

    10. Miscellaneous. This Property Agreement may be executed in counterparts and exchanged by scanned copies or e-signature services (e.g., DocuSign or Adobe Sign), all of which taken together will constitute one single agreement between the Parties. This Property Agreement (including Order Form) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter, including any “click thru” terms, vendor registration terms, or other agreement(s) employed by Provider that are required to be agreed to electronically prior to or subsequent to the Effective Date of this Property Agreement and shall be null and void.


    1. Affiliate” means (1) an entity that, directly or indirectly, Controls, is Controlled by, or is under common Control with, a Party, and (2), in the case of Marriott, a partnership or joint venture in which Marriott or an entity under clause (1) is a partner or principal.

    2. “Charges” has the meaning set forth in Section 11

    3. “Claims” shall mean a claim, action, suit or proceeding (whether civil, criminal, administrative, arbitral, investigative or otherwise).

    4. Control” means, with regard to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities or other ownership interests, by contract or otherwise; provided, however, that Control will be deemed to exist where any entity owns, directly or indirectly, more than 50 percent of the voting securities or other similar voting rights in, or ownership interests of, another entity. 

    5. “Customer” means Property’s customers or guests using the Services but not including Property Owner employees.     

    6. Documentation” means, with respect to Software or technology provided by a party (including, with respect to Provider, the POS), (1) the user manuals, training materials, guides, product descriptions, technical manuals, user manuals, product specifications, supporting materials and other written materials (in print or electronic form, regardless of the medium in which they are stored or displayed) provided by the providing party that describe the function and use of such Software or technology and (2) any and all amendments, modifications and supplements to the foregoing.  The Documentation for Software and technology provided by Provider includes the materials and descriptions identified or cross-referenced in Exhibit 2.

    7. “Early Termination Fee” has the meaning set forth in Section 19.3. 

    8. End User License Agreement” means the additional terms of service applicable to Property Owner’s and its Users, including employees’ use of the Services, including without limitation, the Toast App, available at

    9. “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 Provider, and purchased under an Order.

    10. Integration Partner” means any partner that Provider has an integration with for Property Owner’s use (including but not limited to FreedomPay).

    11. “Losses” means all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.

    12. “Personal Data” means any information received, collected, accessed or otherwise Processed under the Property Agreement that, directly or indirectly, identifies or can be used to identify an individual, that can be used to derive information specific to a particular Individual, or that otherwise relates to an identifiable individual.

    13. “Process” means the collection, recording, organization, structuring, alteration, access, disclosure, copying, transfer, storage, retention, deletion, combination, restriction, adaptation, retrieval, consultation, destruction, disposal, sale, sharing or other use of Personal Data, whether by automated means or otherwise.

    14. Professional Services” means the installation, implementation, integration, customization, and other services described in the applicable Project and any other similar activities necessary to make the POS available to Marriott in accordance with the Agreement.  The term “Professional Services” does not include Support Services.

    15. “Property Data” means all information entered in the POS (including any software or equipment) by or on behalf of Property, including information relating to Property’s employees or contractors, and information derived from such information, including as stored in or processed through the POS (including any related Systems).  Property Data includes any data collected from the Users that is Property Personal Data (e.g., depending on the circumstances of the individual case and applicable Law, “hits,” “clickstream data,” and the like). The Parties agree that Property Owner Data shall not include Provider Personal Data.

    16. “Property Personal Data” means Personal Data collected by or on behalf of Property, including by Provider, that is Processed as part of the Services under this Agreement, which may include the Personal Data of employees of Property, Users and Property customers. 

    17. “Provider Personal Data” means Personal Data collected or Processed by the Provider where Provider maintains an independent right to Process such Personal Data whether based on a pre-existing relationship or direct interactions with the Individual. 

    18. “Property Owner Marks” means all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos, and other distinct brand elements of Property Owner.

    19. “Provider Provided Resources” means the Services, Deliverables, Provider IP (including the POS), Provider equipment, any derivative, enhancement, modification or improvement to any Property Owner IP performed by Provider or any other resources or items provided to Property by Provider. 

    20. “Support Services” means the support Services set forth in Exhibit 5.

    21. “Third Party Provider” has the meaning set forth in Section 2.1

    22. “Toast Apps” means, collectively, mobile applications made available by Provider as part of the Services, for download by Property and/or Users that enable such Users to interact with, access and use the Services.

    23. “User” means any individual who is designated by Property to receive or use the Services, including Property employees.