Avalara Fiscal Representation Supplemental Terms
Last updated February 17, 2020
These Avalara Fiscal Representation Supplemental Terms (“Fiscal Representation Terms”) govern Customer’s use of fiscal representation provided by Avalara (“Avalara Fiscal Representation”). These Fiscal Representation Terms are in addition to and incorporate by reference (i) the Avalara Service Terms and Conditions located at www.avalara.com/terms (the “Terms”) and (ii) the Managed VAT Reporting Supplemental Terms located at www.avalara.com/mvr-terms.html (the “MVR Terms”).
Any capitalized terms used and not defined in these Fiscal Representation Terms have the meaning given in the Terms or the MVR Terms. For Avalara Fiscal Representation, any references in the Agreement to “Avalara, Inc.” or “Avalara” will be deemed to be to “Avalara Europe Ltd.,” an Affiliate of Avalara, Inc.
The following appendix constitutes part of these Fiscal Representation Terms:
Appendix A – Information and Documents Required Per Transaction
“Avalara Fiscal Representation” means the Service where Avalara or its Affiliate acts as Customer’s tax representative within the meaning of Article 204 and others of Directive 2006/112/EC in the Filing Jurisdictions selected by Customer.
“EU” means the European Union.
“Filing Jurisdiction” means a taxing jurisdiction supported by Avalara for which Customer requests Avalara to provide Avalara Fiscal Representation.
“Payment Services” means, (i) within the EU, any service relating to payment services, including those services that may be regulated in accordance with Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, and (ii) outside the EU, any service relating to money remittance, money transmission, issuing of payment instruments, acquiring or executing payment transactions, or payment initiation services.
“VAT” means, within the EU, such value added tax as levied in accordance with Directive 2006/112/EC, and outside the EU, any tax levied by reference to added value, sales and/or consumption.
“VAT Obligations” mean, for a Filing Jurisdiction, payments or other obligations related to VAT, applications for VAT refund amounts, penalties and interest on VAT payments that are overdue for any reason, and similar obligations or liabilities for that Filing Jurisdiction.
2. Avalara Fiscal Representation.
(a) Use of Avalara Fiscal Representation. Customer is not permitted to access Avalara Fiscal Representation on behalf of its Affiliate unless such Affiliate separately agrees to be bound by the Fiscal Representation Terms and Avalara separately agrees to provide Avalara Fiscal Representation to such Affiliate. Customer appoints Avalara as Customer’s exclusive fiscal representative solely to assist Customer with its VAT compliance obligations in the Filing Jurisdictions.
(b) Managed Returns Service. Avalara will only provide Avalara Fiscal Representation to Customer under these Fiscal Representation Terms in Filing Jurisdictions where Customer has subscribed to the Managed Returns Service in those Filing Jurisdictions. Provision of the Managed Returns Service and payment of the fees for this service will be governed by the MVR Terms.
(c) Avalara Obligations. Avalara may provide Avalara Fiscal Representation as follows:
i. acting on behalf of Customer in respect of VAT Obligations ensuing from applicable VAT regulations in the Filing Jurisdictions;
ii. completing and processing supporting documents, including documents related to termination of Avalara Fiscal Representation as applicable;
iii. assisting Customer to comply with local VAT requirements related to fiscal representation in the Filing Jurisdictions as Avalara determines to be appropriate; and
iv. facilitating the provision of Payment Services by a duly licensed third-party payment service provider (“Third-Party PSP”) to collect and remit VAT Obligations due by Customer to tax authorities. Payment Services are further detailed in Section 3.
(a) The Payment Services are provided in accordance with applicable laws by Third-Party PSP, duly licensed in the relevant EU Member State(s). Third-Party PSP may require Customer to enter into a separate agreement for the provision of the Payment Services.
(b) Customer shall pay VAT Obligations to Third-Party PSP or the tax authority in accordance with Avalara’s instructions.
(c) Avalara, in its sole discretion, may direct Third-Party PSP to apply overpayments to Customer’s future VAT Obligations, or refund or otherwise credit overpayments to Customer. Any amounts of underpayments will be immediately due and payable by Customer and shall be paid to the Third-Party PSP account or to tax authority, as directed by Avalara.
(d) In connection with collection and remittance activities through Third-Party PSP, Customer shall adhere and be subject to the following processes and requirements:
i. Customer will receive instructions from Avalara or Third-Party PSP stating the amount of Customer’s VAT Obligations and the date due to Third-Party PSP to ensure timely payment;
ii. Customer will timely fund the VAT Obligations by way of a credit transfer to Third-Party PSP’s account, on or before the due date;
iii. Third-Party PSP will confirm to Avalara that the designated account contains an amount equal to the amount specified in Avalara’s instruction to Customer described under Section 3(d)(i); and
iv. Subject to the payment requirements and applicable payment processes that may be in place in a Filing Jurisdiction, and upon instructions issued by Avalara, Third-Party PSP will process the VAT Obligations by (i) transferring the VAT Obligations to the bank account of the applicable tax authorities, (ii) arranging for the direct debit of this amount by the applicable tax authorities, or (iii) transferring the VAT Obligations to the Avalara bank account used to pay funds by transfer or direct debit to the applicable tax authorities.
4. Avalara’s Rights.
(a) Avalara may engage any Avalara Affiliate or any third party, including Third-Party PSP, as subcontractor to perform certain obligations under these Terms. Avalara is responsible for its Affiliate’s compliance with and performance of these Terms when acting as agent or subcontractor, and Customer shall bring any claims it may have solely against Avalara and not against such Affiliate. Customer will provide Affiliates of Avalara or third parties with any documentation or agreement required to permit them to perform certain obligations of VAT Services, which for the Fiscal Representation Services may include a power of attorney and an appointment letter in the format required in the Filing Jurisdiction.
(b) Avalara may, in its discretion, to impose rules or limits for, or change, suspend, or discontinue any aspect of Avalara Fiscal Representation at any time.
i If Avalara identifies any questions or ambiguities related to the application of VAT to Customer’s activities, Avalara may apply VAT rates Avalara determines to be appropriate in the filing of a VAT return or amendment of a VAT return previously filed.
ii Avalara may consult or negotiate with the tax authorities in any Filing Jurisdiction concerning tax levies, or other costs and matters arising under the Agreement. Avalara will charge for such services at its then-standard rates. Avalara shall, after consultation with Customer, be entitled to engage third parties to handle claims and negotiations with the tax authorities in Filing Jurisdictions, all of which will be at the additional expense and risk of Customer.
iii Avalara may modify these Fiscal Representation Terms at any time upon 30 days’ prior written notice. Avalara may change or modify these Fiscal Representation Terms at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to Avalara Fiscal Representation (where this does not materially adversely affect Customer’s use of Avalara Fiscal Representation); or (c) to restrict products or activities Avalara deems unsafe or inappropriate. Customer’s continued use of Avalara Fiscal Representation after the effective date of any change to the Fiscal Representation Terms will constitute Customer’s acceptance of that change. If changes are unacceptable to Customer, Customer shall cease using Avalara Fiscal Representation and may terminate the Fiscal Representation Terms by providing written notice to Avalara at any time prior to the effective date of change.
5. Customer’s Obligations.
(a) Customer is prohibited from conducting any activities in a Filing Jurisdiction that may give rise to any VAT Obligations that are not reported to Avalara, or that may give rise to any other form of tax representation. If at any time during the Term Customer becomes aware of any such prohibited activities in any Filing Jurisdiction that may require fiscal or tax representation, Customer will immediately notify Avalara in writing. Further, Customer will ensure that its systems are properly configured to ensure that all VAT Obligations in a Filing Jurisdiction are managed correctly through Avalara Fiscal Representation, and it is solely Customer’s obligation to do so.
(b) Under these Fiscal Representation Terms and as between the Parties, Customer is solely liable and responsible for, and shall timely remit funds for, all of its VAT Obligations in a Filing Jurisdiction. This includes the timely and correct remittance of any VAT Obligations due to any tax authority in that Filing Jurisdiction, including any penalties and interest incurred in relation to any late VAT filing, payment or otherwise.
(c) Promptly upon Avalara’s request, Customer will provide Avalara with (a) proof of funding for any applicable VAT Obligation or other obligation, including for the period after termination of these Fiscal Representation Terms during which any tax authorities may impose tax assessments retroactively; or (b) security for Customer’s VAT Obligations, or for any other payment obligations to Avalara, a tax authority, or any third party arising under these Fiscal Representation Terms. Avalara will determine the form and amount of security necessary in its discretion and may require security to be made in the form of one or more payments made to Third-Party PSP pursuant to Section 3(d)(i), or a first demand bank guarantee, in form and in amounts Avalara determines to be appropriate in its discretion. If requested by Avalara, Customer shall provide Avalara with such additional security as Avalara deems appropriate in its discretion, taking into account Avalara’s potential liabilities.
(d) During the Term, at Avalara’s request, Customer will deliver to Avalara a tax certificate from its resident country or each Filing Jurisdiction confirming that Customer complies with its VAT Obligations or a certificate of outstanding tax liabilities or any other similar type of certificate. Also upon Avalara’s request, Customer will provide a copy of all information related to VAT matters in its resident country and any Filing Jurisdiction, including without limitation information relating to VAT audits, copies of prior VAT returns, Intrastat returns, transactions that have already been performed, VAT credit that has already been asked for, and questions that have been raised by the tax authorities. Customer will ensure its invoices are compliant with the EU VAT Directive 2006/112/EC, as amended from time to time, will provide VAT-compliant invoices to Avalara promptly upon request, and will follow all compliance-related requirements specified by Avalara. Customer will provide Avalara information, in the format and manner specified by Avalara, for all transactions giving rise to VAT Obligations in each Filing Jurisdiction, as required under relevant VAT regulations and in accordance with Appendix A, and in response to all other requests Avalara determines to be appropriate in connection with Avalara Fiscal Representation. Customer will respond promptly, and no later than 7 days from the date of the request, to all information requests from Avalara related to Avalara Fiscal Representation.
(e) If Customer fails under these Fiscal Representation Terms to (i) pay Customer’s VAT Obligations in a Filing Jurisdiction to Third-Party PSP in whole or in part, or (ii) timely provide to Avalara the information or documentation required by Avalara to determine Customer’s VAT Obligations in a Filing Jurisdiction, Avalara may take action it deems appropriate with respect to Customer’s local VAT requirements in such Filing Jurisdiction, including reporting no VAT Obligations for a period (filing a “nil return’”) or filing additional or supplementary VAT returns. Any such activities Avalara undertakes, and any related VAT Obligations that arise will be at Customer’s expense and risk.
(f) Prior to acceptance of these Fiscal Representation Terms and at all times thereafter upon request, Customer will provide all information requested by Avalara or its subcontractor regarding Customer’s legal existence, equity owners and other affiliated persons, and otherwise related to its operations or circumstances, to conduct “know your customer,” anti-money laundering, customer suitability, tax information exchange requirements or related checks or inquiries based on Avalara’s legal and regulatory obligations or commercial considerations (“Background Screen”). Avalara may engage Third-Party PSP or another third party for this purpose (the “Screener”). Customer expressly authorizes all such activities, will provide additional information and otherwise cooperate with Avalara or the Screener in connection with the Background Screen. If Customer provides any information related to its Background Screen directly to the Screener, Customer expressly authorizes Avalara to obtain copies of, transmit to its Affiliates and third parties for processing, and use such information and data from the Screener in connection with such Background Screen as Avalara determines to be appropriate. Customer also expressly authorizes the Screener to provide to Avalara, and Avalara to obtain, any analyses, conclusions or assessments made by the Screener regarding Customer relating to or arising out of the Background Screen process. At any time during the Background Screen process and the Term, Avalara may, in its discretion, refuse to provide Customer with Avalara Fiscal Representation or terminate Customer; provided that if Avalara refuses to provide Avalara Fiscal Representation or terminates Avalara Fiscal Representation under this Section 5 (f) other than for failure to provide documentation required for the Background Screen, Avalara will refund any prepaid unused fees related to Avalara Fiscal Representation (excluding any activation or other one-time fees). Avalara may elect to co-ordinate fiscal representation to Customer through one or more third party fiscal representatives under such third party’s terms, and different fees and expenses may apply.
(g) At any time, in Avalara’s discretion and in accordance with Applicable Laws, and without notice to Customer, Avalara may report any information related to Customer’s use of Avalara Fiscal Representation or its Background Screen process to a regulator, law enforcement agency, or government department or unit in any Filing Jurisdiction.
6. Customer’s Representations and Warranties.
(a) Customer represents and warrants that none of Customer, any of its Affiliates, or any of their respective officers, directors, owners, employees, representatives or agents (the “Customer Affiliated Parties”) is or has engaged in, been charged with or indicted for, or convicted of, any “criminal activity” as defined in Article 2 of the Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law. Subject to this definition, for these purposes, “criminal activity” generally means any kind of criminal involvement in the commission of any offense or crime punishable, in accordance with relevant national law, by deprivation of liberty or a detention order for a maximum of more than one year or, as regards EU member states that have a minimum threshold for crimes or offenses in their legal systems, any crime or offense punishable by deprivation of liberty or a detention order for a minimum of more than six months.
(b) Customer represents and warrants that it is not (i) established for VAT purposes or (ii) registered for VAT purposes in a Filing Jurisdiction that requires fiscal or tax representation, nor that it is in the process to do so, unless such establishment or registration is agreed to in writing by Avalara. Customer will take all actions requested by Avalara to transition any prior VAT registrations to Avalara in order for Avalara to provide Avalara Fiscal Representation in a Filing Jurisdiction. Unless Customer separately has notified Avalara to the contrary in writing prior to entering into these Fiscal Representation Terms, Customer represents and warrants that it has no tax liability in each Filing Jurisdiction that require fiscal or tax representation.
(c) Unless Customer notifies Avalara to the contrary in writing, Customer represents and warrants that none of the Customer Affiliated Parties is a Politically Exposed Person (“PEP”) as defined by the Financial Action Task Force and which definition is located in the document available at https://www.fatf-gafi.org/documents/documents/peps-r12-r22.html. Customer represents and warrants that none of the Customer Affiliated Parties are under sanction, prohibition, or restriction from any Filing Jurisdictions, the United Nations, the EU, any other EU member states, Canada, or the United States.
(d) Customer represents and warrants that all information and documentation provided to Avalara under these Fiscal Representation Terms, including in relation to Payment Services and to fulfil its obligations under Section 5, are true, correct and complete.
(e) Customer’s representations and warranties in this Section 6 are deemed to be made continuously throughout the Term, and Customer will immediately provide written notice in reasonable detail to Avalara at any time that such statement ceases to be true, correct, or complete during the Term.
7. Termination and Suspension.
(a) Avalara may suspend operations and activities on behalf of Customer at any time if Customer has not fully paid its VAT Obligations or performed its other obligations under the Agreement, or while any Customer action or provision of information is outstanding after the relevant deadline, or if Avalara has reasonable grounds to believe that Customer will not be able to comply with its obligations under the Agreement. If Avalara invokes such right to suspend operations or activities, Avalara will notify Customer accordingly and may also notify affected third parties.
(b) Notwithstanding anything to the contrary in the Terms, Customer acknowledges that Avalara may, at its option, terminate the Agreement and Customer’s use of Avalara Fiscal Representation for cause, for any or all Filing Jurisdictions at any time. Grounds for termination for cause include but are not limited to the following:
i. Customer suffers from an insolvency event, i.e. (a) upon the filing of any voluntary petition by Customer under any bankruptcy laws; (b) upon the filing of any involuntary petition against Customer under any bankruptcy laws that is not dismissed within sixty (60) days after filing; (c) upon any appointment of a receiver for all or a substantial portion of Customer’s business or operations; (d) upon any assignment of all or substantially all the assets of Customer for the benefit of creditors or (e) in the event of a change of control over Customer.
ii. Customer has violated any Applicable Laws, including in any Filing Jurisdiction, prior to or during the Term;
iii. Customer breaches the Agreement (including these Fiscal Representation Terms), including by failing to timely provide required information or fund VAT Obligations or other payments;
iv. Customers uses Avalara Fiscal Representation in a manner that threatens the reputation or wellbeing of Avalara or its Affiliates or the integrity of Avalara Fiscal Representation, or that impairs the use of Avalara Fiscal Representation by other Avalara customers;
v. if the power of attorney granted by Customer to Avalara or any Affiliate of Avalara terminates, or any appointment of Avalara or any Affiliate of Avalara is terminated for any reason; or
vi. if the Managed Returns Service for one or more Filing Jurisdictions, or any other Services or contractual relationship between Avalara and Customer, terminates for any reason.
(c) The Avalara Fiscal Representation termination date will be the earlier date on which either Customer’s access to Avalara Fiscal Representation is terminated or the date on which the appropriate form(s) to terminate Avalara or any of its Affiliates as Customer’s fiscal representative in all Filing Jurisdictions are filed with the respective tax authorities. Termination of Avalara Fiscal Representation will automatically lead to termination of any appointment or any power of attorney granted under these Fiscal Representation Terms.
(d) Upon any termination by Avalara under Section 7 (b), Avalara will not refund any amount of fees to Customer. Avalara expressly disclaims liability for any damages Customer incurs related to such termination. In the event of such termination Avalara may terminate Customer’s use of any other product or service offered by Avalara or any Affiliate immediately upon written notice.
(e) If required under any Applicable Laws or requested by Avalara, Customer will appoint another fiscal representative that assumes Avalara’s obligations under these Fiscal Representation Terms immediately following termination of Customer’s subscription for Avalara Fiscal Representation under these Fiscal Representation Terms, or at any other time specified by Avalara in its discretion. During any period in which Customer fails to comply with this obligation, Customer shall continue to comply with its obligations towards Avalara and will be liable for all resulting Losses (as defined below).
(f) Following any termination, Customer remains subject to all obligations and liabilities, including VAT and other payment obligations and information requirements, arising out of or related to Avalara Fiscal Representation prior to termination.
(a) Invoices or other Order Documents specifying fees may be issued and sent to Customer on behalf of Avalara or its Affiliates by Third-Party PSP or another service provider. If Avalara determines that Customer fails or may fail to meet any of its obligations under the Agreement, Avalara may offset those obligations against any refunds from any tax authorities in any Filing Jurisdiction of whatever nature accruing to Customer in order to meet those obligations.
(b) Customer authorizes Third-Party PSP to collect subscription fees and pay such amounts to Avalara or its Affiliate, provided that Customer may also pay such amounts to Avalara or its Affiliate directly. Any subscription fees collected by Third-Party PSP may be deducted from amounts that Third-Party PSP holds on behalf of Customer. If Customer is required to report transactions or inventory transfers that occurred prior to Customer’s appointment of Avalara under these Fiscal Representation Terms, these backfiling services will be considered an ancillary service.
9. Further Limitations of Liability.
(a) AVALARA FISCAL REPRESENTATION IS MADE AVAILABLE TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN THESE FISCAL REPRESENTATION TERMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, AVALARA DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. AVALARA SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT (A) ANY GOVERNMENTAL INFORMATION (INCLUDING WITHOUT LIMITATION INFORMATION REGARDING TAX RATES OR THE APPLICABILITY OF CERTAIN TAXES), OR (B) ANY INFORMATION IMPORTED FROM ANY OTHER APPLICATION, SITE, OR SERVICE, IS ACCURATE, COMPLETE, CURRENT, OR APPLICABLE TO CUSTOMER OR ITS BUSINESS.
(b) NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS LIMITING EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FOR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE REMEDIES DESCRIBED IN THIS SECTION ARE CUSTOMER’S ONLY REMEDIES FOR ANY BREACH OF WARRANTY OR ANY OTHER CLAIM. AVALARA’S TOTAL LIABILITY ARISING OUT OF AVALARA FISCAL REPRESENTATION FOR A FILING JURISDICTION, WHETHER ON WARRANTIES, CLAIM OF NEGLIGENCE, OR OTHERWISE, SHALL NOT IN ANY CASE EXCEED THE AMOUNT PAID BY CUSTOMER TO USE AVALARA FISCAL REPRESENTATION FOR THAT FILING JURISDICTION DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM IN THAT FILING JURISDICTION.
(c) SAVE AS OTHERWISE STATED IN SECTION 9 (b), AVALARA SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, LOST PROFITS OR SPECIAL DAMAGES, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE. FURTHER, AVALARA SHALL NOT BE LIABLE FOR ANY FEES, PENALTIES, INTEREST AND OTHER CHARGES ASSESSED BY A FILING JURISDICTION DUE TO A LATE OR MISSED FILING RESULTING FROM CUSTOMER’S FAILURE TO PROVIDE ANY REQUIRED INFORMATION OR TIMELY APPROVAL OF A RETURN, DUE TO THE TIMING OR REJECTION OF ANY OPTING LETTER SEEKING TO WAIVE THE DISTANCE SELLING THRESHOLD, OR DUE TO LATE OR MISSED VAT OBLIGATION OR OTHER PAYMENT OWED BY CUSTOMER. EXCEPT AS PROHIBITED BY APPLICABLE LAWS, CUSTOMER MAY NOT BRING ANY CLAIM RELATING TO THESE FISCAL REPRESENTATION TERMS OR AVALARA FISCAL REPRESENTATION MORE THAN TWO YEARS AFTER THE EVENTS GIVING RISE TO THE CLAIM OCCURRED.
10. Indemnification; Liability of Customer.
(a) Subject to the laws of each Filing Jurisdiction, Avalara and Customer may have joint and several liability to that Filing Jurisdiction’s tax authorities for Customer’s fulfillment of VAT Obligations. If Avalara incurs any liability, or is compelled to pay any amount related to Customer’s actions, omissions, or obligations, Customer shall indemnify and hold harmless, and at Avalara’s option shall defend, Avalara, each of its Affiliates, and each of its and their officers, directors, owners, employees, representatives and agents (each, an “Avalara Indemnitee”) from and against any liability, loss, settlement payment (including any settlement an Avalara Indemnitee agrees to pay), interest, award, judgment, damages (including punitive damages), fines, fees, penalties, filing fees and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses and charges (“Losses”) incurred by, or pending or threatened against, any Avalara Indemnitee that arise out or relate to any (i) any VAT Obligations, or (ii) any third-party claim or action arising out of or related to Customer’s actions or omissions or the provision of Avalara Fiscal Representation to Customer under these Fiscal Representation Terms (including any claims or actions in connection with Avalara’s termination of Customer under these Fiscal Representation Terms), except to the extent such claim or action results directly from the gross negligence or intentional misconduct of Avalara, or (iii) breach of any of Customer’s representations or warranties, or any failure or omission of Customer to meet or perform any of its covenants, undertakings or obligations pursuant to the Fiscal Representation Terms or to Avalara Fiscal Representation, including without limitation the payment of any VAT Obligation or other liability hereunder or the provision of accurate VAT identification numbers and correct documents, information and data.
(b) If any Avalara Indemnitee incurs any liability in connection with the VAT Obligations or Customer’s actions or omissions under the Agreement, that Avalara Indemnitee shall have full recourse against Customer and all other rights available at law and in equity to recover such liability. In order to secure the payment of any amount that is may be due from Customer to any Avalara Indemnitee under the Agreement or otherwise, Avalara has a right of retention and offset, and a right of pledge over, all moneys and other items of value that Third-Party PSP may hold on behalf of Customer, or that may be due from Avalara to Customer under the Agreement or under any other current or future arrangement Customer may enter into with Avalara or any of its Affiliates. Each Avalara Indemnitee is an intended third-party beneficiary under the Agreement.
11. Governing Law; Arbitration.
Any dispute arising out of or in connection with these Fiscal Representation Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English. The governing law of these Fiscal Representation Terms shall be the substantive law of England and Wales.
(b) In the event of any contrary or inconsistent terms between the MVR Terms and the Terms, on the one hand, and the Fiscal Representation Terms, on the other, with respect to the provision of Avalara Fiscal Representation, the Fiscal Representation Terms will control with respect to the provision of Avalara Fiscal Representation.
(c) Any reference in these Fiscal Representation Terms to the “discretion” of Avalara means the “sole and absolute discretion” of Avalara.
(d) Customer may not assign these Fiscal Representation Terms without the prior written consent of Avalara. Avalara may assign all or any part of these Fiscal Representation Terms to any other party upon notice to Customer.
13. Inapplicable Provisions of the Terms.
The following provisions of the Terms do not apply to Avalara Fiscal Representation or with respect to these Fiscal Representation Terms: Section 2(c) (i), (ii) and (iii) (Avalara’s Responsibilities); Section 2(e) (Customer Affiliates); Section 5 (Service Suspension and Disputes); Section 6(d) (Trial Period); Section 6(e) (Termination for Breach or Cause); Section 9(b) and (c) (Avalara’s Warranties; Disclaimer of Implied Warranties); Section 10 (Indemnification); Section 11 (Modifications); Section 12 (a), (b) and (c) (Exclusion of Certain Claims; Limitation of Liability; Limitation of Claims); Section 13(g) (Governing Law); Section 13(i) (Force Majeure); and Section 13(k) (Successors and Assigns).
INFORMATION AND DOCUMENTS REQUIRED PER TRANSACTION
An authorization to act as fiscal representative may only be granted by local authorities if certain conditions are fulfilled. One of these conditions is that the fiscal representative keeps efficient and well-organized records. These must clearly and convincingly demonstrate to any tax authorities that VAT legislation and VAT regulations have been applied correctly. In many cases Avalara may not have the required documents, information and data at its disposal, but nevertheless shares responsibility to local tax authorities with respect to this information. Customer therefore must provide these in the manner and format specified by Avalara no later than 7 days after expiry of the VAT return period. After termination of Avalara Fiscal Representation, Customer shall continue to have the obligation, pursuant to Section 7, for the period during which the authorities may impose tax assessments retroactively, to cooperate in every way and if so required provide all documents, information, and data concerning the activities carried out within the framework of these Fiscal Representation Terms.
Description of any transactions for which Avalara is to act as fiscal representative for Customer in a Filing Jurisdiction pursuant to these Fiscal Representation Terms.
REQUIRED DOCUMENTS, INFORMATION AND DATA PER TRANSACTION CARRIED OUT BY CUSTOMER IN A FILING JURISDICTION, INCLUDING:
- all documents, information and data required for customs clearance;
- all customs declarations of goods imported or to be imported;
- VAT invoices issued and received;
- VAT identification numbers of Customer’s B2B customers performing intra-Community or domestic acquisitions;
- all information required for purposes of applying the exemptions laid down in Article 138 of Directive 2006/112/EC, including written statements from any acquirer stating that goods have been transported cross-border, a signed CMR document or note, a bill of lading, airfreight invoice or invoice from the carrier of the goods, insurance policy with regard to the dispatch or transport of the goods, or bank documents proving payment for the dispatch or transport of the goods, official documents issued by a public authority, such as a notary, confirming the arrival of the goods in the Member State of destination; a receipt issued by a warehouse keeper in the Member State of destination, confirming the storage of the goods in that Member State;
- all information required for the register prescribed in Article 243 of Directive 2006/112/EC;
- all information required for the recapitulative statement prescribed by Article 262 of Directive 2006/112/EC; and
- customs export documentation, validated by customs at EU border.