Payment Processing Terms

1. Payment Processing Services. Merchant acknowledges and agrees to be bound by the terms and conditions of the Toast Merchant Agreement, and these Payment Processing Terms, and all other terms, policies and guidelines applicable to the Services (as defined in the Toast Merchant Agreement). Toast’s Payment processing services allow Merchant to accept Customers’ Cards as payment for Merchant’s services or goods. In providing these Payment processing services, Toast acts in the capacity of a payment facilitator, not a bank or payment processor. Capitalized terms not defined herein will be as defined in the Merchant Agreement.
2. Exclusivity and Merchant Authorization. Merchant acknowledges that as a condition of this Merchant Agreement, Merchant agrees to utilize Toast as its exclusive provider of Payment processing services. Merchant hereby authorizes Toast (including Toast’s bank partners and/or payment provider(s), as applicable), as its agent, to hold, receive and disburse funds (or cause funds to be held, received, and disbursed) on its behalf and to access the Merchant’s Bank Account (as defined in the Order) to effectuate payment to Toast of any Fees,  payment to Merchant of Net Sales Proceeds, and payment to Toast, or a third party, to the extent expressly directed by Merchant for any other amounts contracted for between Merchant and Toast or Merchant and such other third party, including, by way of example, in connection with a Hardware lease or a loan through the “Toast Capital Loan” program for which Toast or its affiliate may be a servicer. Merchant’s authorization permits Toast to generate a tangible draft or an electronic funds transfer to process each Payment transaction that Merchant authorizes. Merchant’s authorization herein will remain in full force and effect during the Term. 
3. Payment Cards. Toast works with many Cards. Toast’s Payment processing services allow Merchant to accept Payments from most U.S.-issued credit, debit, prepaid, or gift Cards that bear the official markings of a Payment Network. At any time and without prior notice, Toast may add, remove, or change which Cards are considered acceptable. From time to time, Toast may support additional Cards at its discretion. Toast will only process Cards that receive an authorization from the applicable Payment Network or Card issuer.
4. Deposits and Settlement. Once the Merchant's Bank Account information is verified, Toast will automatically deposit the Net Sales Proceeds collected to the Merchant's Bank Account via direct deposit. This deposit will normally appear in the Merchant's Bank Account within 1-2 business days after payment settlement is initiated. It is Merchant’s responsibility to initiate settlement of its payments in a timely manner through the Services. Optionally, Merchant may request that Toast automatically initiate settlement of Merchant payments at 4:30 AM ET for the previous day's activity. If Merchant chooses to utilize this optional service, Toast is not responsible for any loss in gratuities caused by settlement before the gratuity adjustment was made. Merchant’s failure to 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 Net Sales Proceeds. Additionally, if applicable, Merchant authorizes Toast and/or its processors or bank partners to submit transactions to and receive settlement from one or more Payment Networks, on Merchant’s behalf.
5. Adjustments. If Merchant has not provided goods or services consistent with the Merchant Agreement and these Payment Processing Terms with respect to a particular transaction(s), Toast will have the right to refuse to pay any Net Sales Proceeds to Merchant and/or to pay a refund to any Customer from the Merchant's Bank Account. Toast reserves the right to adjust the Net Sales Proceeds due for any period to compensate Toast for any Chargebacks, calculation errors, Merchant employee fraudulent use, and any refunds paid to Customers, whether or not related to the period on which such adjustment is made, or to offset against such Net Sales Proceeds any other claim Toast may have arising hereunder, as more fully set forth in Section 8 hereunder.
6. Investigations. Notwithstanding Section 8 below, if Toast needs to conduct an investigation or resolve any pending dispute related to Merchant’s Bank Account, Toast may defer payout or restrict access to Merchant’s funds for the entire time it takes for Toast to complete its investigation or resolve the dispute. Toast also may defer payout or restrict access to Merchant funds as required by Applicable Law and Rules or court order, or if otherwise requested by law enforcement or government entity. Additionally, Merchant will assist Toast when requested, at Merchant’s expense, to investigate any of Merchant’s transactions processed through the Services. To that end, and in accordance with Section 9 below, Merchant permits Toast to share information about a Chargeback with Customer, Customer’s financial institution and Merchant’s financial institution in order to investigate and/or mediate a Chargeback. Toast will request necessary information from Merchant to contest the Chargeback. If a Chargeback dispute is not resolved in Merchant’s favor by the Card network or issuing bank or Merchant chooses not to contest the Chargeback, Toast may recover the Chargeback amount and any associated fees as described in the Merchant Agreement or these Payment Processing Terms. Merchant acknowledges that its failure to assist Toast in a timely manner when investigating a transaction, including providing necessary documentation within the time period specified in Toast’s request, may result in an irreversible Chargeback. Toast will charge a fee for mediating and/or investigating Chargeback disputes, in addition to any other Chargeback fee(s) set forth in an Order Form, if applicable. Additionally, Toast may decide not to authorize or settle any transaction that Merchant submits to Toast if Toast reasonably believes that the transaction is in violation of any Toast agreement, or exposes Merchant, other Toast users, Toast processors or Toast to harm. Harm includes without limitation fraud, a violation of individual or proprietary rights and other criminal acts. If Toast reasonably suspects that Merchant’s Toast Account or Merchant's Bank Account has been used for an unauthorized, illegal, or criminal purpose, Merchant gives Toast express authorization to share information about Merchant, Merchant’s Toast Account and Merchant's Bank Account, and any of Merchant’s transactions with law enforcement.
7. Merchant Bank Account Activity. When a payment is made to the Merchant's Bank Account, Toast will update the Merchant's Bank Account reporting through the Toast Platform. Reporting of Merchant's Bank Account activity by Toast is available through the Toast Platform for up to one (1) year of Merchant's Bank Account activity. Except as required by Applicable Law and Rules, Merchant is solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with the Merchant's Bank Account and Merchant’s use of the Services, and (b) reconciling all transactional information that is associated with Merchant's Bank Account. If Merchant believes that there is an error or unauthorized transaction activity associated with the Merchant's Bank Account, Merchant will contact Toast immediately.
8. Merchant Reserves. At any time and from time to time, Toast may i) temporarily suspend or delay payments to Merchant in accordance with the Merchant Agreement, ii) designate an amount of Merchant funds that Toast or its payment provider(s) 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's Bank Account to secure the performance of its obligations under the Merchant Agreement. Toast, in its sole reasonable discretion, may require a Reserve for any reason, 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. The Reserve will be in an amount as reasonably determined by Toast and/or Toast’s payment provider(s). The Reserve may be raised, reduced, or removed at any time by Toast, in its reasonable discretion, based on Merchant’s payment history, a credit review, the amount of any arbitration award or court judgment against Merchant in Toast's favor, or otherwise as Toast and/or its payment provider(s) may determine or require. If Merchant does not have sufficient funds in its Merchant's Bank Account, Toast may fund the Reserve from 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's Bank Account, or other payment instrument registered with Toast. Merchant grants Toast a security interest in and lien on any and all funds held in any Reserve, and also authorizes Toast, or a payment processor or bank partner acting on behalf of Toast, to make any withdrawals or debits, including by initiating one or more ACH debit entries, from the Reserve or any bank account linked to any of Merchant’s Toast Accounts, without prior notice to Merchant, to collect amounts that Merchant owes Toast, 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 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 its payment providers 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 its payment provider(s) in connection with the return of any Reserve funds, Toast and/or its payment providers will pay to Merchant any funds then remaining in the Reserve. Upon notice of termination of this Merchant Agreement, Toast and/or its payment providers may estimate the aggregate dollar amount of anticipated Chargebacks, refunds, fines, fees, penalties, or other risks and the like that Toast and/or its payment providers reasonably anticipate subsequent to termination, and Merchant agrees to immediately deposit such amount in its Merchant's Bank Account, or Toast and/or its payment providers may withhold such amount from Merchant’s settlement funds in order to establish a Reserve pursuant to and governed by the terms and conditions of this Merchant Agreement.
9. Chargebacks. Merchant will not incur excessive Chargebacks. If Toast determines that Merchant is incurring excessive Chargebacks, Toast may establish controls or conditions governing Merchant’s Toast Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in accordance with the Merchant Agreement or these Payment Processing Terms, (c) delaying payouts, and/or (d) terminating this Merchant Agreement and/or any associated Order Form(s) or Master Services Agreement(s), as applicable. Notwithstanding Section 8 above, for any transaction that results in a Chargeback, Toast may withhold the Chargeback amount and any associated fees. Toast may deduct the amount of any Chargeback and any associated Fees, fines, or penalties listed in each Order or assessed by a third party, from either Merchant’s Toast Account or Bank Account (including without limitation any Reserve), or any proceeds due to Merchant or other payment instrument registered with Toast. If Merchant has pending Chargebacks, Toast may delay payouts from Merchant’s Toast Account. Further, if Toast reasonably believes that a Chargeback is likely with respect to any disputed transaction, Toast may withhold the amount of the potential Chargeback from payments otherwise due to Merchant under the Merchant Agreement or these Payment Processing Terms until such time that: (a) a Chargeback is assessed, in which case Toast will retain the funds; (b) the period of time under Applicable Law and Rules by which Customer may dispute the transaction has expired; or (c) Toast determines that a Chargeback on the transaction will not occur, in which case Toast will promptly 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 deduct the full amount of the applicable Chargeback from Merchant’s Bank Account in accordance with the Merchant Agreement or these Payment Processing Terms, or, if Toast is unable to do so, Merchant shall pay Toast promptly upon demand. Merchant will pay all costs and expenses, including without limitation attorneys' fees, other legal expenses, and handling fees incurred by or on behalf of Toast in connection with the collection of all Chargebacks and Toast Account deficit balances that are unpaid by Merchant. The terms and conditions of this Section 9 will survive termination of this Agreement.
10. Compliance with Applicable Law and Rules, including Payment Networks. The Payment Networks require that Merchant and Toast comply with all Applicable Law and Rules. Portions of the Operating Regulations may be made available to the public at the following online websites*:
    • Visa: www.usa.visa.com
    • Mastercard: www.mastercard.com
    • American Express: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf
    • PCI-DSS: www.pcisecuritystandards.org
    • Visa’s CISP program: www.visa.com/cisp
    • Mastercard’s SDP program: www.mastercard.com/sdp
    • Discover’s DISC website: http://www.discovernetwork.com/fraudsecurity/disc.html
    • American Express’ website: www.americanexpress.com/merchantopguide

    • 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 its payment provider, in its respective discretion deem to pose undue risk to Toast or its payment provider, as applicable. Without limitation of the foregoing, a list of certain prohibited or restricted transactions may be found at: https://pos.toasttab.com/toast-prohibited-items.

      Merchant acknowledges that the Google Pay Terms of Service are hereby made available to Merchant and may be found at: https://policies.google.com/terms.

11. Merchant agrees that the Operating Regulations are incorporated by reference into the Agreement and that nothing in the Agreement shall be construed to interfere with or lessen the right of the Payment Networks or Toast’s payment provider(s) to terminate the Agreement at any time. In the event of a conflict between the Agreement and the Operating Regulations, the Operating Regulations will control.
12. Merchant acknowledges and agrees:
    1. it is responsible for the actions of its employees and agents;
    2. it will comply with all Applicable Law and Rules and all applicable parts of the Operating Regulations; including those parts regarding the ownership and use of the names, logos, trademarks, service marks, images, domain names and other source identifiers of the Payment Network;
    3. it will comply with, and will contractually require its suppliers and agents to comply with, the provisions of the Cardholder Information Security Program (CISP) and PCI DSS, or other security program as required by a Payment Network and demonstrate compliance with these security obligations; and
    4. it shall clearly distinguish fees associated with a Card Network’s transactions with fees associated with other Card transactions in its pricing.
13. Merchant represents and warrants that it will not:
    1. discriminate against Cards or Card issuers (e.g., limited acceptance options) except in full compliance with the Operating Regulations;
    2. submit any transaction to Toast that was previously charged back and subsequently returned to Merchant, irrespective of approval by a person authorized to use the relevant Card or the accounts established in connection with the relevant Card (a “Cardholder”);

    3. knowingly submit any transaction that is illegal or that the Merchant should have known was illegal.  Merchant acknowledges that such transaction must be legal in both the Cardholder’s and the Merchant’s jurisdiction;

    4. submit a transaction that it knows, or should have known is either fraudulent or not authorized by the Cardholder;

    5. require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed, nor request a Card Verification Value 2 (“CVV2”) for a card-present transaction, nor retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Operating Regulations or the Agreement, including CVV2;

    6. add a surcharge to transactions, except as expressly permitted by, and in full compliance with, the Operating Regulations;

    7. disburse funds in the form of cash unless Merchant is participating in full compliance with a program supported by a Card Network for such cash disbursements and in full compliance with the Operating Regulations;

    8. submit a transaction that does not result from an act between the Cardholder and the Merchant;

14.  The following will only apply to Merchant’s participation in the American Express OptBlue Program, as controlled by the American Express OptBlue Program Operating Regulations.  (Capitalized terms below are defined in the American Express Operating Guide or the American Express OptBlue Program Operating Regulations):

    1. Sub-merchant must comply with, and accept Cards in accordance with, the terms of this Agreement and the American Express Merchant Operating Guide, as such terms may be amended from time to time.

    2. Sub-merchant acknowledges that the American Express Merchant Operating Guide is incorporated by reference into this Agreement. (And is available online at the following web link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf).

    3. Sub-merchant expressly authorizes Toast to submit transactions to, and receive settlement from, American Express on behalf of the Sub-merchant.

    4. Sub-merchant expressly consents (i) to Toast collecting and disclosing Transaction Data, Merchant Data, and other information about the Sub-merchant to American Express; and (ii) to American Express using such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Program Agreement, and important transactional or relationship communications from American Express.

       1. Sub-merchant acknowledges that it may be converted from the Program to a direct Card acceptance relationship with American Express if and when it becomes a High CV Merchant in accordance with Section 10.5 of the American Express OptBlue Program Operating Regulations, "High CV Merchant Conversions”

    5. Sub-merchant expressly agrees that, upon conversion, (i) Sub-merchant will be bound by American Express' then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the Sub-merchant for Card acceptance.

    6. Sub-merchant acknowledges that American Express may use information obtained in the Sub-merchant application at the time of setup to screen, communicate, and/or monitor Sub-merchant in connection with Card marketing and administrative purposes.

    7. Sub-merchant agrees that it shall not assign to any third party any payments due to it under this Agreement, and further agrees that all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Sub-merchant may sell and assign future Transaction receivables to Toast, its affiliated entities and/ or any other cash advance funding source that partners with Toast or its affiliated entities, without consent of American Express.

    8. Sub-merchant agrees that American Express is a third-party beneficiary to the Agreement and retains all rights, but not obligations, in the Agreement that will fully provide American Express with the ability to enforce the terms of this Agreement against the Sub-merchant.
       Sub-merchant may opt out of accepting Cards at any time without directly or indirectly affecting its rights to accept Other Payment Products.

    9. Sub-merchant agrees that Toast may terminate the Sub-merchant's right to accept Cards if

    10. Sub-merchant breaches any of the provisions in this Section or the American Express Merchant Operating Guide.

    11. Sub-merchant agrees that Toast has the right to immediately terminate a Sub-merchant for cause or fraudulent or other activity, or upon American Express' request.

    12. Sub-merchant agrees that its refund policies for purchases on a Card must be at least as favorable as its refund policy for purchases on any Other Payment Products, and further agrees that the refund policy be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law and Rules.

    13. Sub-merchant acknowledges that it is prohibited against billing or collecting from any Cardmember for any purchase or payment on the Card unless Chargeback has been exercised, the Sub-merchant has fully paid for such Charge, and it otherwise has the right to do so.

    14. Sub-merchant agrees it must comply with all Applicable Law and Rules, rules and regulations relating to the conduct of the Sub-merchant's business, including the DSR and PCI DSS, each as described in Chapter 15 of the American Express OptBlue Program Operating Regulations, "Data Security."

    15. Sub-merchant agrees that it will report all instances of a Data Incident immediately to Toast after discovery of the incident.

    16. Sub-merchant agrees it will cease all use of, and remove American Express Licensed Marks from the Sub-merchant's website and wherever else they are displayed upon termination of the Agreement or a Sub-merchant's participation in the Program.

    17. Sub-merchant will ensure data quality and agrees that Transaction Data and customer information will be processed promptly, accurately and completely, and will comply with the American Express Technical Specifications.

    18. Merchant agrees it is solely responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.

15. Commercial Entities. In order to provide Merchant with payment processing services, Toast must enter into agreements with the Payment Networks, processors, and acquiring banks. The Payment Networks have set certain Card volume thresholds, which require anyone that processes at or above those thresholds to enter into an agreement directly with one or more of Toast’s banking partner(s). These thresholds are as follows: $10,000,000 in Visa transactions and/or $10,000,000 in Mastercard transactions and/or an amount set forth by Discover and American Express (or such other amount provided by the applicable Operating Regulations) processed in any 12-month period. By accepting or otherwise agreeing to these terms, Merchant agrees to the terms and conditions of each applicable Commercial Entity Agreement, located at https://pos.toasttab.com/merchant-service-agreements, as may be amended from time to time, effective as of the date Merchant processes such specified amounts or as otherwise required by Toast’s bank partners. If Merchant fails to comply with any “Commercial Entity Agreement”, Toast may suspend or terminate Merchant’s Toast Account. Similarly, if American Express considers Merchant to be a high value customer, it may require that Merchant enter into a direct agreement with American Express and designate Toast as Merchant’s agent for American Express payments. If that is the case, Toast will notify Merchant of such requirement.
16. Off-Line Transactions. Merchant, using its reasonable discretion, may use the Services from time to time to conduct point-of-sale activities offline (“Off-Line Mode”); transactions initiated in Off-Line Mode will be queued and submitted for authorization when Internet connectivity to the Services is restored. However, Merchant assumes any and all risk, responsibility and liability associated with any transaction that Merchant chooses to conduct in Off-Line Mode.
17. Merchant Processing Errors. Toast will employ commercially reasonable efforts 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.

*Toast may modify the Merchant Agreement or these Payment Processing Terms to comply with, and as a result of, amendments to Applicable Law and Rules. Applicable Law and Rules may prohibit or impose conditions on Merchant, including without limitation assessing a surcharge for the use of a Card in connection with any transaction.