Avalara Terms and Conditions
Last Updated November 16, 2013
These are the terms and conditions (these “Terms”) under which Avalara agrees to grant Customer access to and use of Avalara’s online software service offerings, and to provide Customer Avalara Professional Services. Customer accepts and agrees to be bound by these Terms by executing a Sales Order that references these Terms, or by using Avalara’s software or services. Any individual who executes a Sales Order or uses Avalara’s services on behalf of an entity, represents and warrants to Avalara that such individual has the legal authority to bind the Customer to these Terms.
Please see Section 13 for definitions of certain capitalized terms used in these Terms.
1. Use of the Services
1.1. Customer’s Account. On or immediately following the Contract Effective Date, Avalara will enable an account that is personal to Customer for provision of the Services (“Account”). Customer will designate a single point of contact with Avalara who has been authorized by Customer to manage and support the Services, and establish and manage the Account, including the creation of usernames and passwords to the Account. Customer is solely responsible for maintaining the status of its User base, and Customer will ensure the safeguarding of all usernames and passwords in its possession or under its or its Affiliate’s control. Customer will require its employees and Affiliates to use sufficiently strong passwords and will not allow employees or Affiliates to use the same passwords used to access any other account. Should Customer’s employees or Affiliates choose a password also used for any other account, Avalara will not be responsible for any unauthorized access or harm to such other accounts. Customer is responsible for all activities that occur under the Account and, except to the extent caused by Avalara’s breach of these Terms, Avalara is not responsible for unauthorized access to the Account. Customer will contact Avalara immediately if Customer believes an unauthorized third party may be using the Account or if Account information is lost or stolen. Customer’s failure to commence or complete configuration or set up of the Services does not release Customer from any of Customer’s obligations under these Terms.
1.2. Avalara’s Responsibilities. During the Subscription Term, Avalara will: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Avalara will give at least 7 days’ notice and which Avalara will schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Pacific Time), (b) any unavailability caused by circumstances beyond Avalara’s reasonable control, including internet service provider failures or delays or denial of service attacks, and (ii) provide its basic support for the Services to Customer at no additional charge, or upgraded support if purchased separately.
1.3. Customer’s Responsibilities. Except to the extent of any Avalara Professional Services for which Customer has expressly subscribed, Customer is responsible for (a) the accuracy and completeness of Customer’s configuration and set up of the Services, (b) ensuring that the Services are compatible with Customer’s business systems requirements; (c) the accuracy, quality and integrity of the Data that Customer inputs into the Avalara Technology, and (d) the maintenance and use of Customer’s hardware, network, internet connectivity and software. Customer will comply with the Acceptable Use Policy referenced in Section 9 below and with applicable laws. Customer will ensure that its Users, Affiliates, employees, agents and representatives comply with all of Customer’s obligations under these Terms, and Customer is responsible for their acts and omissions relating to these Terms as though they were those of Customer.
1.4. Subscription Plans. Customer’s subscription plan for the Services is specified in the applicable Sales Order. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Sales Order during the Service Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any of the unused volume to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Service subscription plan, then Customer must notify Avalara at least 30 days before the start of the Renewal Term for the applicable Service; the reduction will be effective at the start of the Renewal Term.
1.5. Use of the Services by Customer’s Affiliates. Customer may use the Services to process the activities of Customer’s Affiliates by creating a subaccount for each Affiliate under Customer’s Account. Affiliates for whom Customer has properly created a subaccount are referred to as “Permitted Affiliates.” Affiliate use is subject to the terms and conditions of these Terms. Customer is solely responsible for setting up such subaccounts. If Customer wishes any of Customer’s Affiliates to use the Services then, in order for Avalara to implement the accounts and associate the applicable tax IDs, Customer must provide Avalara with at least 30 days’ prior written notice of their use. Customer acts as agent for Customer’s Affiliates with respect to all interaction among Customer, Customer’s Affiliates and Avalara under or in connection with these Terms, and Customer represents that it has authority to do so. Avalara will invoice Customer (and not its Affiliates) for the Services used by Customer and its Affiliates and Customer will be solely responsible for paying all invoices to Avalara. Only Customer (and not its Affiliates) may request technical support with respect to the Services. Only Customer (and not its Affiliates) may initiate and participate in any dispute or litigation with Avalara with respect to these Terms. However, Avalara may directly enforce these Terms against any of Customer’s Affiliates or Customer, or both, in Avalara’s sole discretion, if the Affiliate is in breach of the Terms.
1.6. Avalara Distributors. If Customer acquired the Services from an Avalara Distributor, then these Terms are not exclusive of any rights Customer obtains under the Distributor Agreement; however, if there is any conflict between the provisions of these Terms and the Distributor Agreement, then the provisions of these Terms prevail. If an Avalara Distributor has granted Customer any rights that Avalara does not also directly grant to Customer in these Terms, or that conflict with these Terms, then Customer’s sole recourse with respect to such rights is against the Avalara Distributor.
2. Proprietary Rights
2.1. License to Use the Services. Avalara grants Customer a nonexclusive, nontransferable, limited license, without right to sublicense, for the Subscription Term, to access and use the Services, solely for Customer’s and its Permitted Affiliates’ internal business operations. Avalara reserves all other rights.
2.2. Customer Data. Avalara asserts no ownership rights in Customer Data, Customer’s Personal Information or Customer’s Confidential Information. Customer agrees that Avalara may aggregate Customer Data, including individual sales data, and may or may not combine such aggregate Customer Data with aggregate data from other Avalara customers.
2.3. Avalara’s Intellectual Property and Ownership Rights. As between Customer and Avalara, Avalara and Avalara’s licensors retain and own all right, title, and interest in all Intellectual Property rights in and to the Avalara Technology, the SDK, the Documentation, Avalara’s Confidential Information, the Services, the Avalara Professional Services (including any Inventions used, created or developed by Avalara or its employees or subcontractors in connection with the Avalara Professional Services), and all enhancements or improvements to, or derivative works of the foregoing (collectively, “Avalara Intellectual Property”). Nothing in these Terms transfers or conveys to Customer any ownership interest in or to the Avalara Intellectual Property.
2.4. Restrictions. Customer will not, except to the extent as may be permitted by applicable law or required by Avalara’s licensors, (I) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the Avalara Technology; (ii) reproduce, modify, or prepare derivative works of any of the Avalara Technology or Documentation; (iii) distribute or display any of the Avalara Technology or Documentation other than to Customer’s Users; (iv) share, sell, rent or lease or otherwise distribute access to the Services, or use the Services to operate any timesharing, service bureau or similar business; (v) create any security interest in the Services; (vi) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Avalara Technology or Documentation; or (vii) disclose the results of any Service or program benchmark tests without Avalara’s prior written consent. Customer may use Avalara Services only as defined in the Sales Order, these Terms and the Documentation and not for the benefit of any third party.
2.5. Suggestions. If Customer provides Avalara with any suggested improvements to the Services (“Suggestions”), then Customer also grants Avalara a nonexclusive, perpetual, irrevocable, paid up, royalty free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Suggestions, regardless of whether Customer has designated the Suggestions as confidential.
2.6. Federal Government End Use Provisions. Avalara provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency requires rights not conveyed under these Terms, then such rights must be separately negotiated and will be reflected in a mutually agreed upon written addendum to these Terms.
3. Temporary Service Suspension
3.1. Generally. Avalara may suspend Customer’s right to access or use any portion of the Services immediately upon notice to Customer if Avalara determines (i) Customer’s use of or registration for the Services: (a) poses a security risk to the Services or any third party, (b) may adversely impact the Services or the networks or Data of any other Avalara customer or business partner, (c) may subject Avalara or any third party to liability, or (d) may be fraudulent; (ii) Customer is using any Avalara trademarks, service marks, trade names, or logos other than as expressly permitted by Avalara in writing; (iii) that Customer, Customer’s Affiliates or any of Customer’s Users is in breach of these Terms, including if Customer is delinquent in its payment obligations for more than 15 days; or (iv) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
3.2. Effect of Suspension. If Avalara suspends Customer’s right to access or use some or all of the Services, then (i) Avalara will not immediately erase any Customer Data as a result of Customer’s suspension. Customer Data will be retained for a reasonable period of at least thirty days following the date of Avalara’s notice of suspension to Customer or until termination, whichever is first, after which time Avalara will have the right to destroy or overwrite Customer Data, in Avalara’s sole discretion; (ii) Customer remains responsible for all fees and charges, including for Services to which Customer continues to have access, if any; and (iii) Customer will not be entitled to any compensation or credits for any period of suspension.
3.3. Termination Rights. Avalara’s right to suspend Customer’s ability to access or use the Services is in addition to Avalara’s right to terminate these Terms pursuant to Section 4 below.
4. Term and Termination
4.1. Initial Term. The initial period of these Terms (the “Initial Term”) begins on the Contract Effective Date and ends after 12 calendar months, unless the Sales Order specifies a longer term.
4.2. Automatic Renewal. Upon expiration of the Initial Term, Customer’s subscription to the Services will automatically renew for successive 12 calendar month periods (each a “Renewal Term”), unless sooner terminated in accordance with this Section 4. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term.”
4.3. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Service will be coterminous with the current Subscription Term and Avalara will invoice Customer an amount equal to the difference between the original Service fee and the upgraded Service fee. If Customer subscribes to an additional Service, the Subscription Term for that Service will begin on the Contract Effective Date for that Service and Customer will be separately invoiced for the applicable activation and annual Service subscription fee for the additional Service.
4.4. Subscriptions through an Avalara Distributor. If Customer ordered the Services through an Avalara Distributor, then Sections 4.1-4.3 above are inapplicable, and the Subscription Term will begin on the Contract Effective Date and, subject to the remainder of this Section 4, it will expire, renew and terminate in accordance with the terms of the Distributor Agreement.
4.5. Termination for Convenience.
4.5.1. During the Initial Term only, Customer may immediately terminate these Terms or Customer’s subscription to any Service by sending an email to firstname.lastname@example.org within 60 days of the Contract Effective Date. If Customer exercises Customer’s termination rights under this Section 4.5.1, then Avalara will refund Customer the fees Customer paid to Avalara for the terminated Services. The rights under this Section 4.5.1 do not apply to Customer if Customer purchased the Services through an Avalara Distributor.
4.5.2. Either party may terminate these Terms or Customer’s subscription to any Service effective upon expiration of the then current Subscription Term by providing the other party prior written notice of termination of at least the following length: if Customer is the terminating party, at least 30 days; and if Avalara is the terminating party, at least 90 days.
4.6. Termination for Breach. Either party may immediately terminate these Terms or any affected Services by notice to the other: (i) if the other party materially breaches any of its obligations under these Terms and, if the breach is capable of cure and except for a breach of Customer’s payment obligation, fails to cure the breach within 30 days of receipt of notice of breach; (ii) upon the party ceasing to operate in the ordinary course, making an assignment for benefit of creditors or similar disposition of its assets, or becoming the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Without limiting the foregoing, Customer materially breaches the Agreement (a) by failing to pay any fees and expenses within 15 days of their due date; or (b) if Customer is subscribed to Avalara Returns, Customer’s failure to timely fund Customer’s tax liabilities within the specified deadlines.
4.7. Immediate Termination by Avalara for Cause. Avalara may immediately terminate these Terms by notice to Customer if: (i) Customer is unable to resolve any issue leading to suspension of Customer’s Services to Avalara’s reasonable satisfaction within 30 days after notice of suspension; (ii) Avalara determines that Customer, Customer’s Affiliates, any User or any person using Customer’s Account has violated these Terms or the Acceptable Use Policy and the violation represents: (a) a threat to the security, integrity, or availability of the Services, any Data, any Avalara Intellectual Property or any data or technology owned by third parties, (b) a violation of applicable law; or (iii) Avalara must do so in order to comply with the law or requests of governmental entities.
4.8. General Effects of Termination. Upon any termination of these Terms: (i) all of Customer’s rights under these Terms immediately terminate (with the exception of those expressly surviving termination); (ii) Customer remains liable for all fees, charges, Expenses and any other obligations Customer has incurred through the actual date of termination; (iii) Customer will immediately return or, if instructed by Avalara, destroy all of Avalara’s Confidential Information in the possession of Customer or Customer’s Affiliates or under Customer’s or their control; and (iv) subject to Avalara’s data retention obligations and Customer’s Data access rights specified in Section 4.11 below, Avalara will destroy or overwrite Customer Data, Confidential Information and Personal Information within a reasonable period of time, subject to conformance with Avalara’s backup and data retention policies. The following Sections will survive any termination of these Terms: 1.5, 2, 4.8-4.11, 5.2, 5.3, 6, 8, 9, and 11-13.
4.9. Consequences of Termination by Customer for Breach. If Customer terminates these Terms or any Service in accordance with the termination for breach provisions in Section 4.6 above, then Avalara will refund Customer a pro rata amount of any prepaid Service subscription fees (excluding, for clarification, any set up, activation, implementation time and materials or other fees) applicable to the unutilized portion of the Subscription Term of the terminated Services.
4.10. Consequences of Termination by Avalara for Breach or Cause. If Avalara terminates the Terms or any Service in accordance with the termination for breach or cause provisions of Sections 4.6 or 4.7 above, then Avalara will not refund Customer or relieve Customer from, and Customer remains obligated to pay, all fees attributable to the terminated Services, including those attributable to the unutilized portion of the terminated Subscription Term.
4.11. Access to and Retention of Customer Data. Avalara will provide Customer with an export file of Customer Data stored on the Avalara Technology if, within 30 days of any termination, Customer notifies Avalara of Customer’s request for an export file. In order to reflect tax audit requirements, Avalara may retain certain Customer Data for at least 7 years from the date on which it was uploaded to or generated by the Avalara Technology and for such length of time needed to comply with applicable law.
5. Fees and Taxes
5.1. Fees. Customer will pay all fees specified in each Sales Order and SOW as adjusted for any price increases pursuant to Section 5.4. Except as otherwise specified in the Sales Order and SOW: (i) fees are quoted and payable in United States dollars; (ii) fees are based on the quantity of Services purchased and not actual usage; and (iii) payment obligations are non-cancelable and fees paid are nonrefundable. Avalara will invoice Customer and Customer will pay for any overage fees related to transactions in excess of Customer’s particular Service subscription plan at the rate specified in the Sales Order. If no overage rate is specified in the Sales Order, Avalara’s then current rates apply.
5.2. Taxes. Customer is responsible for any applicable sales, use, or any value added or similar taxes (collectively, “Sales Taxes”) payable with respect to provision of the Services or Avalara Professional Services to Customer, arising out of or in connection with these Terms, other than taxes based upon Avalara’s net income. Unless expressly specified otherwise in any Sales Order or SOW, all fees, rates and estimates exclude Sales Taxes.
5.3. Purchases through an Avalara Distributor. If Customer ordered the Services through an Avalara Distributor, then the provisions of this Section 5 do not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Distributor Agreement. However, if the Avalara Distributor from whom Customer purchased the Services fails to pay Avalara any amounts due in connection with Customer’s use of the Services, then Avalara may suspend Customer’s Account, with or without notice to Customer. Customer agrees that Customer’s remedy in the event of such suspension is solely against the Avalara Distributor and that Avalara is not liable to Customer in any manner for such suspension.
5.4. Annual Increases. Following the Initial Term, Service fees are subject to annual increases, which will be effective beginning upon the first day of the Renewal Term. Avalara will notify Customer of any increase prior to its becoming effective; notice may be in the form of an invoice. If Customer objects to the increase, then Customer may terminate its subscription to the affected Services for convenience by providing notice to Avalara at any time within 30 days of receipt of the increase notice; any such termination will be effective on the later to occur of the expiration of the 30 day period or the then current Subscription Term. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or additional Service or Professional Service that Customer orders; and (ii) expiration of any discount or incentive programs to which Customer was previously entitled. Once Customer’s fees are equal to Avalara’s standard Service pricing, the fees for the Services will not increase over the immediately preceding Service Subscription Term’s fees by more than the greater of: (i) the increase in the Consumer Price Index (as defined below) during the immediately preceding 12-month period; or (ii) 5%. As used herein, “Consumer Price Index” means the “Consumer Price Index for All Items for All Urban Consumers (CPI-U): U.S. City Average (1982-1984=100)” or any successor index, as published monthly by the Bureau of Labor Statistics of the United States Department of Labor. For clarification, if Customer upgrades or adds a new Service or Professional Service at any time during the Subscription Term, the additional amounts due to Avalara for such upgrade or additional Service will not be deemed a fee increase.
6. Confidential Information; Personal Information
6.1. Confidential Information. “Confidential Information” shall mean all information designated by a party as confidential and that is disclosed by either party to the other party, regardless of the form of disclosure, and shall be deemed to include, without limitation, the Avalara Technology, the SDK, and the Documentation, all information relating to prerelease offerings, business plans, pricing, products, patents, security policies and processes, inventions, procedures, methods, designs, source and object code, data, programs, improvements and other works of authorship of the disclosing party.
6.2 Restrictions on Use and Disclosure. Neither party will disclose the other party’s Confidential Information to any third party without express authorization and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors or consultants.
6.3. Exclusions. Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (v) is Aggregate Data. Restrictions on use or disclosure of Confidential Information do not apply to use or disclosure authorized in writing by the disclosing party.
6.4. Disclosures Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party's Confidential Information or Personal Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party's efforts to protect its Confidential Information or Personal Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party's reasonable expense, in seeking and obtaining protection for the disclosing party's Confidential Information or Personal Information.
6.5. Independent Development. The terms of confidentiality under these Terms will not limit either party’s right to independently develop or acquire products, software or services without use of or reference to the other party’s Confidential Information.
6.6. Protection and Use of Personal Information.
6.6.1. Avalara will use Personal Information of Customer’s customers only to fulfill its obligations to Customer under this agreement, to maintain and improve Avalara products and services, to comply with applicable law, to generate Aggregate Data for analysis and statistical reporting, and to respond to a Disclosure Order.
6.6.2. Avalara will implement and maintain commercially reasonable security methods designed to prevent any unauthorized use, disclosure of or access to Personal Information that Customer does not expressly authorize subject to Section 6.3 (Exclusions). Avalara will endeavor to ensure that its security methods will comply with all applicable laws, rules and regulations.
6.6.3. Avalara will notify Customer of unauthorized access, use, or disclosure of Personal Information within Avalara’s custody and control upon confirmation of the same; each party will reasonably cooperate with the other with respect to such unauthorized access, use, or disclosure, including its containment and investigation. Upon confirmation of any vulnerability or breach of Avalara’s security affecting Personal Information in Avalara’s custody and control, Avalara will modify its processes and security program as necessary to remediate the vulnerability or breach.
6.6.4. Customer will maintain the confidentiality of, and safeguard its passwords and secret keys used in connection with Avalara’s Services. Customer agrees to immediately notify Avalara if its passwords or secret keys are lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised and if it gains knowledge of any unauthorized access, use, or disclosure of Customer’s Account or any other breach of security in relation to its passwords, secret keys or Avalara’s Services.
6.6.5. If applicable, Customer will provide notice to its customers that systems that use the Avalara Technology and Services will collect analytics data about Users’ devices, including precise geolocation of the devices, transactions, and transaction activities.
7.1. Avalara’s Warranties.
7.1.1. Avalara warrants to Customer that: (a) the Avalara Technology, as provided by Avalara to Customer, will perform in all material respects in accordance with its applicable, then current Documentation; (b) Avalara will use commercially reasonable efforts, using then current versions of commercially available antivirus software, to ensure that the Avalara Technology as provided by Avalara to Customer under these Terms contains no computer virus, Trojan horse, worm, or other similar malicious code, and (c) Avalara will perform the Avalara Professional Services in a professional manner. Avalara does not warrant that the Avalara Technology is free from all bugs, errors, or omissions.
7.1.2. If Avalara fails to conform to any of the foregoing warranties and if Avalara does not render the Avalara Technology or Avalara Professional Services conforming within 30 days of Customer’s notifying Avalara of the nonconformance then, as Customer’s sole and exclusive remedy for any nonconformance, Customer may terminate these Terms upon immediate notice to Avalara, and Avalara will refund Customer a pro rata amount of (i) any prepaid Service subscription fees (excluding, for clarification, any set up, activation, implementation, time and materials or other fees) applicable to the unutilized portion of the Subscription Term of the terminated Services, and (ii) any fees paid for the nonconforming Avalara Professional Services.
7.1.3. The warranties in this Section 7.1 will automatically abate to the extent that the Avalara Technology or Avalara Professional Services have been modified by persons other than Avalara’s employees or authorized representatives, or other than at Avalara’s express written direction. Because of Avalara’s reliance upon Customer’s accurate configuration of the Avalara Technology, and thousands of state and local governmental agencies to timely update and provide Avalara their correct, current tax rate information, Avalara provides no guarantee or assurance that the Avalara Technology will accurately determine Customer’s or Customer’s Affiliates’ tax liability. The warranties in these Terms are for Customer’s sole benefit, and may not be extended to any other person or entity.
7.2. Customer’s Warranties. Customer represents and warrants to Avalara that: (i) the information Customer provides in connection with registration for the Services and any Renewal Term, including billing information, is current, accurate and complete; (ii) Customer has not provided any false information to gain access to or use of any Avalara Intellectual Property; (iii) Customer is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons and Customer is not otherwise a person to whom Avalara is legally prohibited to provide the Services; (iv) Customer does not conduct business for any unlawful purpose; and (v) Customer has the legal authority to enter into and perform under these Terms.
7.3. Disclaimer of Implied Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) THE AVALARA TECHNOLOGY, SERVICES, AVALARA PROFESSIONAL SERVICES AND ALL INTELLECTUAL PROPERTY AND OTHER INFORMATION PROVIDED BY AVALARA OR AVALARA’S LICENSORS UNDER OR IN CONNECTION WITH THESE TERMS ARE PROVIDED “AS IS”; AND (ii) THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THESE TERMS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT, OR IMPLIED WARRANTY ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR OF TITLE.
8.1.1. Indemnification by Avalara. Avalara will defend Customer from and against claims by any third party that the Avalara Technology, as furnished by Avalara under these Terms, directly infringes an issued patent or other intellectual property right of such third party under the laws of a country in which the Avalara Technology is actually provided to Customer (collectively, an “Infringement”). Further, Avalara will indemnify Customer from and against all damages finally awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by Avalara, that result from the Infringement. If Avalara believes that the Avalara Technology may be subject to any claim of Infringement, then Avalara may, and if Customer’s use of the Avalara Technology is held to infringe and its use is enjoined, then Avalara will, at Avalara’s own expense, procure for Customer the right to continue using the Avalara Technology, or replace same with non-infringing technology, or modify the Avalara Technology so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for Avalara, then Avalara may terminate Customer’s rights to access and use the Services that require the infringing Avalara Technology, in which case Avalara will refund Customer a pro rata amount of any prepaid Service subscription fees (excluding, for clarification, any activation and implementation fees) applicable to the unutilized portion of the Subscription Term of the terminated Services. Avalara has no obligation with respect to any actual or claimed Infringement if the Infringement is caused by Customer Data, use of the Avalara Technology other than as specified in the Documentation or these Terms, or combination of the Avalara Technology with any products, software, services, data or other materials not provided by Avalara.
8.1.2. Indemnification by Customer. Customer will defend and indemnify Avalara from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third party claim or investigation to the extent based on Customer Data, or Customer’s failure to comply with applicable law. Customer will indemnify and hold Avalara harmless from any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any noncompliance with the Acceptable Use Policy for which Customer, Customer’s Users, or Customer’s Affiliates are responsible.
8.2. Process. The obligations of a party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 8 are subject to the following: (a) the Indemnitee promptly informs the Indemnitor in writing of any claim within the scope of the Indemnitor’s defense or indemnity obligations set forth in these Terms; (b) if required to defend, the Indemnitor is given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability and the Indemnitee may participate in the defense of the claim at its sole cost and expense); and (c) the Indemnitee reasonably assists the Indemnitor in all necessary respects in connection with the defense of the claim at the Indemnitor’s expense.
9. Additional Terms of Service. The following additional terms and conditions (“Additional Terms of Service”) apply to Customer’s use of the Services:
• Avalara’s Acceptable Use Policy – located at http://www.avalara.com/acceptable-use
• Avalara Returns: http://www.avalara.com/avatax-returns-terms-of-use
• Avalara CertCapture: http://www.avalara.com/avatax-certs-terms-of-use
• Streamlined Sales and use Tax Certified Service Provider Services: https://www.avalara.com/sst-terms-of-use
10. Modifications. Avalara will provide Customer notice of any modifications to these Terms or to any Additional Terms of Service applicable to Customer (a “Modification Notice”). If the modifications materially and adversely affect Customer and Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Service by notice to Avalara to that effect, subject to the following:
10.1. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Term, then Customer may terminate Customer’s subscription for convenience prior to commencement of the Renewal Term, in accordance with Section 4.5.2 (Termination for Convenience).
10.2. If the Modification Notice states that the modifications will become effective during the then current Subscription Term, then Customer may terminate Customer’s subscription to the affected Service at any time within the 30 day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (a) the date on which Customer delivers the termination notice, or (b) the date on which the applicable modifications become effective. If Customer terminates a Service subscription pursuant to this Section 10.2, then Customer will be entitled to a pro rata refund of any prepaid Service subscription fees for the terminated Service for the unutilized portion of the Subscription Term (for clarification, Service subscription fees do not include any set up, activation, implementation, time and materials fees, Avalara Returns filing fees, Professional Service fees, or other Expenses incurred in connection with the Services or Avalara Professional Services).
10.3. If Customer does not terminate the affected Service subscription as specified in this Section 10, then Customer will be bound by the modified terms beginning upon the date on which the Modification Notice states they become effective.
11. Limitations of Liability
11.1. Exclusion of Certain Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR LOST PROFITS DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NONPERFORMANCE OF THESE TERMS OR OF PRODUCTS, SOFTWARE OR SERVICES PROVIDED UNDER THESE TERMS, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT, INDEMNITY, OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
11.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO AVALARA UNDER THESE TERMS IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH A CLAIM, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, MISREPRESENTATION, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE. THE FOREGOING DOES NOT APPLY TO EACH PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS, TO CUSTOMER’S OBLIGATIONS TO PAY FEES AND EXPENSES WHEN DUE AND PAYABLE, NOR TO ANY INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF ANY OF AVALARA’S INTELLECTUAL PROPERTY RIGHTS.
11.3. General. Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer, its Affiliates or Users or if the remedies fail of their essential purpose. Customer agrees that without these limitations the fee for the Services and Avalara Professional Services would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the parties may have additional rights.
12.1. Relationship of the Parties; No Professional Tax Opinions or Advice. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, or fiduciary or employment relationship. Customer acknowledges and agrees that Avalara Distributors and Avalara’s other business partners, including any third party retained by Customer to provide computer consulting services, are independent of Avalara and are not Avalara’s agents. The parties are each responsible for paying their own employees, including employment related taxes and insurance. Customer acknowledges and agrees that Avalara does not provide tax or legal advice, including legal opinions, tax opinions or tax management advice specific to the facts and circumstances of Customer’s business. Customer is encouraged to conduct due diligence and seek the assistance of a qualified legal, tax or accounting professional.
12.2. Export Compliance. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, Customer represents that none of Customer, Customer’s Affiliates, or Customer’s Users are prohibited by any government from receiving any exports.
12.3. Third Parties. Avalara is not responsible for nor does Avalara in any way endorse any Third Party Applications or websites to which the Avalara Website or Services provides links.
12.4. Promotional Rights. Neither party may issue any press release regarding these Terms without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors.
12.5. Other Technology or Services; Changes. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality, and that the Services do not include any audit support (unless otherwise specified in an SOW).
12.6. Dispute Resolution.
12.6.1. Governing Law and Venue. These Terms will be governed by and interpreted in accordance with the internal laws of the State of New York and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or in connection with these Terms or the Services will be subject to the exclusive jurisdiction and venue of the state and federal courts located as follows: If Customer is defendant, in the state and county courts located in the state and county of the defendant’s corporate headquarters; If Avalara is the defendant, in the state and county courts located in Seattle, Washington USA, and each party waives any claim that a more convenient forum can be found.
12.6.2. Equitable Relief. Without prejudice to Customer’s rights to obtain equitable relief, Customer acknowledges that damages will be an inadequate remedy if Customer, Customer’s Affiliates or Users violate Customer’s obligations under these Terms pertaining to the protection, security or integrity of the Avalara Technology or Avalara Intellectual Property; Avalara has the right, in addition to any other rights Avalara may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce such obligations, without any obligation to post any bond or similar security.
12.6.3. Legal Actions and Expenses. Except with respect to any infringement or misappropriation of any Intellectual Property rights, misuse or unauthorized disclosure of Confidential Information or Personal Information, or Customer’s failure to pay fees and expenses when due and payable, neither party may bring any action arising out of or relating to these Terms more than 2 years after the cause of action accrued.
12.7. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by reason of any circumstances beyond its reasonable control, including any act of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, or acts of terrorism or war, provided, however, that the affected party will use all commercially reasonable efforts to avoid or remove such causes of nonperformance and will proceed whenever such causes are removed or cease.
12.8. Notices. Avalara will provide Customer with notices that affect Avalara’s customers generally (e.g., notice of an update made to the Services) by email or by posting it on the Avalara Website or console. Avalara will provide Customer with any legal notices by first class mail or email to the mailing or email address Customer provided Avalara during Customer’s registration for the Services, or to a substitute, updated mailing or email address that Customer has provided to Avalara for these purposes. Customer is responsible for keeping its mailing and email address current with Avalara. Notices that Avalara sends electronically will be deemed received upon dispatch, and notices that Avalara sends by first class mail will be deemed received within 3 days of dispatch, regardless of whether Customer actually receives the notice. Except as otherwise specified in these Terms, all notices to be given to Avalara under these Terms must be in writing and sent to Avalara’s headquarters at the address then specified on the Avalara Website.
12.9. Successors and Assigns. Neither party may assign any of its rights or obligations under these Terms without the other party’s prior written consent, which consent may not be unreasonably withheld; provided, however, that either party may assign all (but not some) of its rights and obligations to any entity into or with which it is merged, or which acquires all or substantially all of its assets, or which is an Affiliate of such party unless, in the case of an assignment by Customer, the assignee is a competitor of Avalara. It is not unreasonable for Avalara to withhold consent to an assignment to a competitor. Any attempt to assign these Terms other than in accordance with this Section 12.9 will be null and void. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s permitted successors and assigns.
12.10. Severability. If any provision of these Terms is determined to be invalid or unenforceable in any relevant jurisdiction, then to the fullest extent permitted by law: (i) it will be deemed modified to the extent necessary to make it enforceable in that jurisdiction and consistent with the original intent of the parties; (ii) the affected provision will remain in full force and effect; and (iii) all other provisions of these Terms will remain in full force and effect.
12.11. Waiver. No waiver of or with respect to any provision of these Terms, nor consent by a party to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against such party unless it is in writing and signed by such party, and then the waiver will be effective only in the specific instance and for the purpose for which given.
12.12. Captions and Headings. The captions and headings are inserted in these Terms for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of these Terms.
12.13. Entire Agreement. These Terms consti¬tute and embody the entire agreement and understanding between the parties with respect to the subject matter hereof and super¬sede all prior or contemporaneous written, electronic or oral communications, representations, agree¬ments or understandings between the parties with respect thereto. Except as specified in Section 10, these Terms may not be modified or amended except by a written instrument executed by both parties. The Additional Terms of Service and, upon Avalara’s acceptance of them, each Sales Order and SOW, are incorporated into and made a part of these Terms. Customer’s standard terms of purchase (including purchase order terms), if any, are inapplicable. If there is any conflict between the content of these Terms, except to the extent expressly specified otherwise in the applicable document, the Additional Terms of Service and any Sales Order or SOW, then the following order of precedence applies: (i) these Terms, (ii) the Additional Terms of Service, (iii) the SOW, and (iv) the Sales Order.
Capitalized terms used in these Terms have the following meanings:
“Affiliate” means an entity that controls, is controlled by or is under common control with a party to these Terms at any time during the Subscription Term; for these purposes, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Aggregate Data” means de-identified, anonymous data in the form of summary level information used for analytical and statistical reporting purposes such as consumers in State X are more likely to purchase clothing online than in any other state. Aggregate Data does not include any Personal Information or information that identifies or is specific to a particular Customer.
“Avalara,” means Avalara, Inc., a Washington corporation, its Affiliates and their respective successors and assigns.
“Avalara AvaTax” means Avalara’s web based software application that may integrate with Customer’s accounting or other financial or business software for automated sales and use tax calculation, including all updates, upgrades and accompanying documentation.
“Avalara CertCapture” means Avalara’s web based software application for exemption certificate storage and management, including all updates, upgrades and accompanying documentation.
“Avalara Distributor” means an entity that Avalara has authorized as a distributor or other ‘reseller’ of Avalara’s service offerings.
“Avalara Professional Services” means services supplemental to the Avalara Services, including professional consulting services, to be performed for Customer by Avalara’s employees or contractors, as specified in the applicable Sales Order or a SOW.
“Avalara Returns” means Avalara’s software application for compliance, preparation and management of sales and use tax returns, treasury, remittance, and notice management, including all updates, upgrades and accompanying documentation.
“Avalara Technology” means products and services offered by Avalara, including, without limitation, Avalara AvaTax, Avalara CertCapture and Avalara Returns, purchased by Customer as further described in Customer’s Sales Order together with other computer software programs, networks and equipment that Avalara uses to make them available to its customers as an online software as a service offering. Avalara Technology does not include Third Party Applications.
“Avalara Website” means www.avalara.com, www.taxrates.com, or any other website that Avalara may own or manage.
“Certificate” means each unique image file of a form document (e.g., sales, use, value added or similar tax exemption certificate, state, local and federal form documents) uploaded to the Service, as shown and visible at all times on the Customer’s home page of the Service, labeled as “Viewable Certificates.”
“Confidential Information” has the meaning ascribed to it in Section 6.
“Contract Effective Date” means the earliest of: (i) the date Avalara enters Customer’s Sales Order into Avalara’s system; (ii) the date Customer accepts these Terms; or (iii) as mutually agreed by the parties in writing is the effective date of these Terms.
“Customer” means the legal entity that places a Sales Order or uses Avalara Services, thereby accepting these Terms.
“Customer Data” means Customer’s Data or that of Customer’s Permitted Affiliates, and includes Personal Information forming part of that Data, but does not include Aggregate Data.
“Data” means any information uploaded to the Avalara Technology by Customers, and resulting Customer unique output that is generated by the Avalara Technology when processing the uploaded information.
“Distributor Agreement” means the order, agreement or other document between Customer and an Avalara Distributor for Customer’s acquisition of Services.
“Documentation” means the Avalara Technology user guides, training manuals and other similar software documentation, as updated or revised by Avalara from time to time, which Avalara provides to Customer.
“Expenses” means any reasonable, preapproved expenses described in a Sales Order or SOW or otherwise as being reimbursable to Avalara by Customer, that Avalara actually incurs while providing Customer the Services or Avalara Professional Services. Avalara’s reimbursable Expenses include postage fees, wire transfer fees, and other administrative costs.
“Intellectual Property” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in Inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery or invention, whether or not copyrightable or patentable and whether or not reduced to practice.
“Personal Information” means personally identifiable information of an individual person that is required to be protected by applicable law.
“Renewal Term” has the meaning ascribed to it in Section 4.
“Sales Order” means Avalara’s sales order form, sales proposal or other ordering document that describes the Services, Avalara Professional Services, fees, support plans, Expenses and any special terms for using the Services that Customer has ordered. Each Sales Order becomes effective when Avalara enters it into Avalara’s system.
“SDK” means Avalara’s Sales Tax Software Development Kit.
“Services” mean the Avalara Technology service offerings to which Customer subscribes, as specified in the applicable Sales Order, Statement of Work or Distributor Agreement.
“SOW” means a services description or statement of work executed by the parties that describes the Avalara Professional Services that Avalara will provide to Customer, and any related obligations Customer may have. Each SOW is subject to the terms and conditions of these Terms. Upon execution by both Customer and Avalara, each SOW is made a part of these Terms.
“Subscription Term” has the meaning ascribed to it in Section 4.
“Third Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties. Third Party Applications may interoperate with the Services.
“Transaction” means (i) with respect to Avalara CertCapture, the collecting (by email, facsimile and/or mail) and the processing (uploading, validating and/or linking) of a document image file for a single jurisdiction on behalf of a Customer, and (ii) with respect to Avalara AvaTax, an electronic request submitted by Customer to the Avalara AvaTax system to calculate tax, post a document or validate an address. Avalara calculates Customer’s Transaction usage on a daily basis using the following formula: Document Count, meaning the greater of the following: (i) the count of unique documents that Customer commits or voids within Avalara AvaTax; or (ii) the count of line items contained in those documents divided by 35; or (iii) the count of tax calculation requests submitted by any SDK connectors attached to Customer’s Account divided by 10; plus
Non Tax Address Validation Count divided by 10, meaning the count of address validation requests that Customer submits to Avalara AvaTax, excluding address validations performed in the process of calculating tax.
“User” means Customer’s employees and those of Customer’s Permitted Affiliates and, to the extent they are providing services for Customer or Customer’s Permitted Affiliates’ benefit, the employees of Customer’s Affiliates’ service providers to whom Customer grants access to the Services.
The following words are to be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or list is not exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; and (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation.