Avalara Service Terms and Conditions
Effective as of January 1, 2017
Please note that our Service Terms and Conditions have been updated. You can view our current terms at www.avalara.com/terms.
These Avalara Service Terms and Conditions (these “Terms”), together with any applicable Order Document(s) and applicable Supplemental Terms (collectively, the “Agreement”) constitute a binding agreement between Avalara and Customer (each, a “Party”) under which Avalara provides Customer access to Avalara’s Services and/or provides the Avalara Professional Services. Customer accepts and agrees to be bound by these Terms by executing an Order Document that references these Terms or by using Avalara’s Services.
1. DEFINITIONS. Unless otherwise defined in the Agreement, capitalized terms have the following meaning:
“Affiliate” means an entity that controls, is controlled by, or is under common control with a Party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
“Authorized User” means any employee, contractor, representative, or other person acting on Customer’s behalf who is authorized by Customer to use the Services and who has been supplied with access to the Services by either Customer or Avalara, at Customer’s written request.
“AvaTax” means Avalara’s AvaTax Service for calculating transactional taxes on the sale of goods and services, including sales, use, and value added taxes.
“Avalara” means Avalara, Inc., a Washington corporation, and its Affiliates.
“Avalara Professional Services” mean 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 Order Document.
“Avalara Returns” mean Avalara’s Service for compliance, preparation, and management of sales and use tax returns, treasury, remittance, and notice management.
“Avalara Technology” means the technology and Intellectual Property used in providing the products and services offered by Avalara, including computer software programs, websites, networks, and equipment. Avalara Technology does not include Third Party Applications.
“CertCapture” means Avalara’s CertCapture Service for exemption certificate storage and management.
“Certificate” means, with respect to CertCapture, each unique image file of a form document image file for a single jurisdiction uploaded to the CertCapture Service. Customers who purchase the CertCapture Services are charged on a per-Certificate basis.
“Customer” means the legal entity that executes or otherwise accepts an Order Document, or uses Avalara Services, and thereby accepts these Terms, and its Affiliates.
“Customer Data” means any information uploaded to the Avalara’s systems by Customers or Authorized Users, the resulting Customer unique output that is generated by the Avalara Services when processing the uploaded information, and any information provided by Customer in connection with its use of the Services.
“Documentation” means Avalara’s user guides, training manuals and other similar information, as updated or revised by Avalara from time to time, that Avalara provides to Customer at the following location: https://help.avalara.com/
“Expenses” mean any reasonable, preapproved expenses described in an Order Document 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, rights in Inventions, 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 rights that may exist 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.
“Order Document” means a Sales Order, SOW, or other document used to purchase Services from Avalara.
“Personal Information” means any personally identifiable information of an individual person that is protected by law and by the confidentiality provisions set forth in Section 9 (Confidential Information).
“Sales Order” means Avalara’s sales order form that describes the Services, Avalara Professional Services, fees, support plans, Expenses and any special terms for using the Services that Customer has ordered.
“Services” mean the Avalara service offerings to which Customer subscribes, as specified in the applicable Order Document.
“SOW” means a statement of work executed by the Parties that describes the Avalara Professional Services that Avalara will provide to Customer, and any related obligations that may be more fully described in the SOW.
2. THE SERVICES
a. Use of the Services. Avalara delivers “software as a service” on a subscription basis. Avalara grants Customer a nonexclusive, nontransferable, worldwide right to access and use the Services during the Term, solely for Customer’s internal business operations. Avalara reserves all other rights.
b. Customer’s Account. Avalara will enable an account for Customer to access the Services (“Account”). Customer will designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users will maintain the confidentiality of all usernames, passwords, access, and account information under their control. Except to the extent caused by Avalara’s breach of this Agreement, including its obligations under Section 9 (Confidential Information), Avalara is not responsible for unauthorized access to the Account. Customer will contact Avalara promptly if (i) if Account information is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the Account has been compromised, including any unauthorized access, use, or disclosure of account information; or (iii) any other breach of security in relation to its passwords, usernames, access information, or Avalara’s Services that may have occurred or is reasonably likely to occur.
c. Avalara’s Responsibilities. Avalara will: (i) provide uptime statistics and status updates at status.avalara.com, as applicable, or an equivalent replacement site; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (1) planned downtime (please note that Avalara does not generally have planned downtime, but in the event that it ever needs to do so, such planned downtime will be scheduled with at least 7 days’ notice and scheduled at a time that is intended to minimize impact to Customer), and (2) any unavailability caused by circumstances beyond Avalara’s reasonable control, including internet service provider failures or delays or denial of service attacks against which Avalara maintains commercially reasonable controls; (iii) provide its basic support for the Services to Customer at no additional charge, or upgraded support if purchased separately and (iv) conduct its business in compliance with all applicable local, state, federal and international laws and regulations (“Applicable Laws”).
d. Customer’s Responsibilities. Except to the extent of any Avalara Professional Services for which Customer has expressly subscribed, Customer is responsible for (i) the accuracy and completeness of Customer’s initial and ongoing configuration and set up of the Services, (ii) ensuring that the Services are compatible with Customer’s business systems requirements; (iii) the accuracy, quality, legality, and integrity of the Customer Data and the means by which Customer acquired Customer Data; (iv) the maintenance and use of Customer’s hardware, network, internet connectivity, and software; and (v) compliance with the Acceptable Use Policy available, with all Documentation and with all Applicable Laws. Customer will ensure that its Authorized Users, Affiliates, employees, agents, and representatives comply with all of Customer’s obligations under the Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
e. Restrictions. Customer shall only use Avalara Services as set forth in the Order Document, these Terms, and the Documentation, and not for the benefit of any third party. Customer shall not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Avalara Technology; (ii) reproduce, modify, create, 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 Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to the Services, or use the Services to operate any timesharing, service bureau, or similar business; (v) alter, destroy or otherwise remove any proprietary notices within the Avalara Technology or Documentation; or (vi) disclose the results of any Service or program benchmark tests to any third parties without Avalara’s prior written consent.
3. TRANSACTION CALCULATIONS
a. Transaction Usage. Fees for usage of AvaTax are based on the number of “Transactions” used in the AvaTax Service by Customer. Avalara will charge a number of Transactions used each day equal to the greater of the results of (i) or (ii) below:
i. The number of Documents recorded; or
ii. The number of API calls to the tax calculation service recorded, divided by 10.
In addition to the Transactions counted under (i) or (ii) above, every 10 API calls to the address validation service, other than API calls that are specifically associated with a tax calculation, will count as one Transaction.
b. Document Definition. A “Document” is any record that is entered, uploaded, or otherwise recorded in the AvaTax Service by Customer. Documents include, for example, committed sales invoices, purchase invoices, inventory transfer invoices, return invoices, and committed e-commerce shopping carts. Each such record will count as one Document for purposes of calculating usage of the AvaTax Service, as will each subsequent alteration of the record. All such records will be considered Documents, regardless of the tax result generated by the AvaTax Service, except for records on which no tax is calculated solely because the Customer has configured the AvaTax Service to not calculate tax in the jurisdiction of the destination address because the Customer does not have nexus in that jurisdiction. For purposes of calculating Document usage, each Document is assumed to have 35 or fewer invoice lines. If the ratio of invoice lines per Document exceeds 35/1 in any day, the number of Documents counted will be the total number of invoice lines in that day divided by 35.
c. Global Transactions. If Customer records any Documents for which ship-to address is outside of Customer’s home Global Zone, Avalara may count such Documents as “Global Transactions.” Global Transaction usage will count against the Global Transaction plan purchased by Customer. If Customer has not purchased a Global Transaction plan, Avalara will not return a tax result for the Global Transaction. A Global Zone is any one of the following three geographic areas: (i) Americas (North and South America, excluding Brazil); (ii) EMEA (Europe, Africa, and the Middle East); or (iii) APAC, (Asia, Russia, Australia, and the Pacific Islands). Customer’s home Global Zone will be the Global Zone in which Customer’s billing address is located.
d. Transaction Calculations. For purposes of calculating Transactions used, fractional Transactions will be rounded up to the next whole number. The number of Transactions used will be measured on a daily basis.
e. Prior Definitions. The description of Transaction usage in this section applies to Subscription Terms that begin or renew on or after January 1, 2017. For any Subscription Terms that began or renewed before January 1, 2017, the prior usage calculations and the definition of Transactions or Documents set forth in the version of the Terms in effect at the time that the current Subscription Term began will be used to determine usage of the AvaTax Service. Upon renewal of any such Subscription Term after January 1, 2017, the new definition of Transactions will apply.
4. ACCURACY GUARANTEE. Avalara provides a guarantee of the accuracy of sales tax calculation results provided by the AvaTax Service (the “Accuracy Guarantee”) under the following terms:
a. If a Customer suffers a negative audit finding that results in financial loss due to an incorrect sales tax calculation result returned by AvaTax, Avalara will pay Customer the lesser of either: (i) the amount of the penalties, interest, and uncollected sales or use taxes that directly result from the incorrect result, or (ii) the amount of the AvaTax Service fees paid during the year preceding the negative audit finding.
b. The following limitations apply to this guarantee:
i. Customer must have properly set up, configured, and maintained its tax profile on the Avalara system and have correctly classified items sold by Customer. To the extent that the incorrect result was caused by Customer’s failure to properly set up, configure, and/or maintain its tax profile, Avalara will not be responsible for the incorrect result.
ii. Avalara will not be responsible for the incorrect result to the extent that it was caused by the failure of the applicable taxing authority to timely and accurately provide or update correct and current tax rates, boundaries, rules, and classifications.
iii. Customer must provide notice to Avalara no later than the earlier of either (1) 10 days after the taxing authority’s finding of a negative audit assessment, or (2) 45 days after the date that Customer or the taxing authority initially identifies an issue that relates to the incorrect result provided by Avalara. Such notice must be sent to firstname.lastname@example.org.
iv. Customer must provide full and timely assistance to Avalara in confirming the nature and occurrence of the error, including providing Avalara with access to its financial reporting records, transaction logs, reports, and all other relevant information reasonably related to the error.
v. Customer must provide full and timely assistance to Avalara in challenging the taxing authority findings if Avalara determines them to be incorrect. To the extent that an audit assessment involves other issues in addition to the alleged incorrect result from Avalara, Customer, its Representatives, and Avalara will work together to ensure a collaborative response to the audit.
vi. Upon first becoming aware of a potential error related to an incorrect result by Avalara, Customer must take reasonable steps to mitigate its losses, including, but not limited to, changing taxability determinations or calculations for ongoing transactions and rebilling customers for the uncollected tax.
c. For purposes of calculating the amount of the Service fees paid that are eligible for the guarantee payment, the amount will be the fees actually paid by Customer to Avalara for the AvaTax Service, and the time period will be the 365 days preceding the issuance of the negative audit finding (e.g., in the case of a negative finding issued by a taxing authority on March 31, 2017, the period used in the calculation will be from April 1, 2016, to March 31, 2017).
d. In the event that (i) Customer ultimately settles with the taxing authority for less than the full amount claimed by such authority, (ii) the audit implicated other issues in addition to the alleged incorrect result provided by Avalara, and (iii) the settlement did not specifically apportion the settlement amounts between the audit issues, the amount to be paid by Avalara under this guarantee will be the percentage of the settlement amount equal to the percentage of the entire settled claim (as such claim existed at the time of settlement) related to the alleged incorrect result provided by Avalara.
e. Avalara will make the guarantee payment to Customer within 30 days of the date that all administrative appeals are exhausted. Avalara may also, in its sole discretion, make the payment at an earlier date, in which case, Avalara’s obligations to continue to contest the audit will cease on the date of the payment.
f. The Accuracy Guarantee only applies to sales tax calculation results provided by the AvaTax Service after October 15, 2015. Customer must have a current AvaTax subscription in good standing to be eligible to receive payment under the Accuracy Guarantee.
5. PROPRIETARY RIGHTS
a. Avalara’s Intellectual Property. As between Customer and Avalara, Avalara and Avalara’s licensors retain and own all right, title, and interest in all Intellectual Property rights in the Avalara Technology, the Documentation, Avalara’s Confidential Information, the Services, and all enhancements or improvements to, or derivative works of, the foregoing. Any work product created by the Avalara Professional Services (including any Inventions used, created, or developed by Avalara or its subcontractors in connection with the Avalara Professional Services) will be Avalara’s Intellectual Property only to the extent that the work product does not incorporate (i) any Customer Intellectual Property or (ii) any works-made-for-hire that Avalara creates for Customer’s exclusive use. Nothing in this Agreement transfers or conveys to Customer any ownership interest in the Avalara Intellectual Property.
b. Suggestions. If Customer provides Avalara with any suggested improvements to the Services, then that suggestion is provided as is, and Customer grants Avalara a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements. Notwithstanding the foregoing, nothing in this Section 5(b) (Suggestions) grants Avalara a license to use any Inventions covered by a registered patent owned by Customer.
c. Customer Data. Customer retains all ownership rights in Customer Data, Customer’s Personal Information, and Customer’s Confidential Information, including any Intellectual Property rights therein. Avalara may use Customer Data solely (i) for internal use in order to maintain, evaluate, develop, and improve its Services; (ii) to respond to a Customer or Authorized User’s support request; or (iii) to fulfill its obligations to Customer under the Agreement. Nothing in the Agreement transfers or conveys to Avalara any ownership interest in or to the Customer Data, Customer’s Personal Information, or Customer’s Confidential Information.
d. Aggregate Data. Avalara shall strictly comply in all respects with Applicable Laws and the confidentiality provisions of the Agreement that apply to use of Aggregate Data. “Aggregate Data” means de-identified and anonymized sets of data that have been gathered by Avalara for the purpose of expressing that information in summary form (for example, price index numbers are aggregated, in contrast to the price of a single commodity). Aggregate Data does not include any information that could be used to identify, or re-identify, Customer; Customer’s clients or customers; any products, goods, or services provided by Customer; or any locations in which Customer does business. Avalara may use Aggregate Data for its own purposes only to the extent that it complies with this Agreement, including the confidentiality obligations.
6. SERVICE SUSPENSION AND DISPUTES
a. Generally. Avalara will make a good faith effort to contact and provide notice to Customer in advance of any suspension. As reasonably practicable under the circumstances, Avalara will endeavor to resolve together with Customer any circumstance that may give rise to Avalara’s suspension rights, which include, without limitation, the following: (i) a material risk to the security or performance of the Services, the network, or any other Avalara Customer or business partner; (ii) use of the Services in violation of the Agreement; or (iii) Customer is delinquent in its payment obligations for any undisputed fees. Unless otherwise agreed in signed writing, payment will be considered delinquent if not received within 15 days following the due date set forth on an invoice. Avalara acknowledges that suspending Customer’s right to access or use some or part of the Services is a significant action, and, therefore, Avalara will not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to Avalara’s right to suspend the Services. Avalara will also pursue other less drastic measures as appropriate, including collaborating with Customer to isolate the issue and escalating unresolved issues to senior management of Customer and Avalara. Avalara will not erase any Customer Data during the suspension period.
b. Effect of Suspension. If Avalara suspends Customer’s ability to access the Services, (i) Customer remains responsible for all fees and charges, including for Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to Avalara’s error or omission.
c. Payment Disputes. Customer must assert any payment dispute in writing to Avalara’s accounting department at email@example.com or Customer’s account representative within 30 days of the date of the invoice giving rise to the dispute. Avalara will not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith, and provides reasonable cooperation to resolve the dispute.
7. TERM AND TERMINATION
a. Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date of the Initial Subscription Term for the first Service purchased, and ends on the date of termination or expiration of the final Subscription Term.
b. Subscription Terms. Customer may purchase subscriptions to one or more Services during the Term. The effective period (usually 12 months) of each subscription is a “Subscription Term” and, depending on the timing and agreed terms of the applicable Order Documents, those subscriptions may or may not have different Subscription Terms. Each Initial Subscription Term begins on an “Effective Date,” which is either (1) the date Avalara enters Customer’s Order Document into Avalara’s billing system or (2) an alternate date mutually agreed by the Parties in writing.
i. Initial Subscription Term. Customer’s initial Subscription Term for a Service (the “Initial Subscription Term”) is one year, which begins on the Effective Date and ends on the first anniversary of the Effective Date, unless the Order Document specifies a different period.
ii. Automatic Renewal. At the end of the then-current Subscription Term, each subscription to a Service will automatically renew for an additional one-year period (a “Renewal Subscription Term”) unless (a) Customer provides written notice of non-renewal to Avalara on or before the expiration date of the then-current Initial Subscription Term or Renewal Subscription Term, or (b) Avalara provides written notice of non-renewal to Customer at least 90 days before such expiration date. Customers should submit notice of non- renewal or termination to firstname.lastname@example.org. Unless another payment method has been specified, Avalara will charge Customer’s payment information on file for the Service fees for the Renewal Subscription Term.
c. 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. In the event of any upgrade, Avalara will charge Customer’s payment information on file, unless another payment method is specified, the then-current applicable upgrade fee plus 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 Effective Date for that Service and Customer will be separately charged for the applicable activation and annual Service subscription fee for the additional Service.
d. Trial Period. During the Initial Subscription Term only, Customer may immediately terminate Customer’s subscription to any Service by sending an email to email@example.com within 60 days of the Effective Date. If Customer exercises Customer’s termination rights under this Section 7(d) (Trial Period), then Avalara will refund Customer the fees Customer paid to Avalara for the terminated Services.
e. Termination for Breach or Cause. Either Party may terminate the Agreement or any affected Services by notice to the other (i) if the other Party materially breaches its obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of notice of breach; or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. Material breach by Customer includes, but is not limited to, the following: (1) Customer is unable to resolve any issue leading to suspension of Customer’s Services to Avalara’s reasonable satisfaction within 30 days following notice of suspension, or (2) if Customer purchases the Returns Service and fails to fund its tax liabilities within the specified deadlines.
f. Consequences of Termination for Breach or Cause. If Customer terminates the Agreement or any Service as a result of Avalara’s material breach, then Avalara will refund Customer a pro rata amount of any prepaid Service subscription fees (excluding any activation or other one-time fees) applicable to the unused portion of the Subscription Term of the terminated Services. If Avalara terminates the Agreement or any Service due to Customer’s material breach, Avalara will not refund any amounts to Customer.
g. General Effects of Termination. Upon any termination of the Agreement: (i) all of Customer’s rights under the Agreement immediately terminate (with the exception of those surviving termination); (ii) except as set forth in Section 7(d) (Trial Period) and Section 7(e) (Termination for Breach or Cause), Customer remains liable for all fees, charges, Expenses, and any other obligations Customer has incurred during Customer’s Subscription Term; (iii) upon request, each Party will immediately return or, if instructed, destroy the other Party’s Confidential Information in its possession or control other than in automatic computer backups; and (iv) Avalara will destroy or overwrite Customer Data and Personal Information within a reasonable period of time, subject to Section 7(h) (Return and Retention of Data), and Avalara’s backup and data retention policies, which will be subject to the confidentiality provisions of these Terms. All provisions that by their nature should survive termination will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
h. Return and Retention of Data. Upon a request from Customer received no later than 60 days after the termination of this Agreement, Avalara will provide Customer with an export file of Customer Data stored on Avalara’s systems in a commonly used format reasonably determined by Avalara. To fulfill certain tax audit requirements, Avalara may retain some Customer Data to comply with such requirements, provided that such retained Customer Data will continue to be subject to the confidentiality provisions herein for as long as it is retained.
8. FEES AND TAXES
a. Fees. Customer will pay all fees specified in each Order Document. Customer may be invoiced based on the Order Document and for usage-based fees. Except as otherwise specified in these Terms or an Order Document: (i) fees are quoted and payable in United States dollars; and (ii) payment obligations are non-cancelable and fees paid are nonrefundable. Unless otherwise specified in an Order Document, Avalara will automatically charge Customer’s payment information on file for any renewals, upgrades, overage fees, and additional Services purchased.
b. Automatic Upgrades and Overages. Customers may choose one of two options in the event that Customer exceeds the number of Documents or Transactions set forth in its Order Document: either payment of a per-Document or per-Transaction overage charge or automatic upgrade to the next highest subscription tier. At any time prior to exceeding the purchased number of Documents or Transactions, Customer may change the selected option. For Customers who first purchase an Avalara Service after January 1, 2016, the default choice will be the automatic upgrade option. For Customers who first purchased an Avalara Service before January 1, 2016, the default choice will remain the overage fee. Overage fees will be charged at the rate specified in the Order Document, and in any Renewal Subscription Term, Avalara’s then-current overage rates will apply.
c. Subscription Plans. Customer’s subscription plan for the Services is specified in the applicable Order Document. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Order Document 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 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 before the start of the next Renewal Subscription Term for the applicable Service; the reduction will be effective at the start of that next Renewal Subscription Term.
d. Taxes. Customer is responsible for any applicable taxes, including without limitation, any sales, use, levies, duties, or any value added or similar taxes (collectively, “Taxes”) payable with respect to Customer’s order of Services or Avalara Professional Services assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Document, all fees, rates and estimates exclude sales taxes. Avalara is solely responsible for taxes based upon Avalara’s net income, assets, payroll, property, and employees.
e. Annual Increases. Unless otherwise agreed in writing, following the Initial Subscription Term, Service fees are subject to annual increases at the level of then- current standard pricing, which will become effective beginning upon the first day of each Renewal Subscription Term. Avalara will notify Customer of any increase at least 30 days prior to Customer’s Renewal Subscription Term. Such notice may be in the form of an invoice or any other form of notice commonly used by Avalara to communicate with Customer. If Customer objects to the increase, then Customer may elect to not renew its order of Services. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or an additional Service or Professional Service that Customer orders, and (ii) expiration of any discount or incentive programs to which Customer was previously entitled.
9. CONFIDENTIAL INFORMATION
a. Confidential Information. “Confidential Information” means all information designated by a Party as confidential, or given the circumstances, would reasonably be understood by the receiving Party to be confidential, and that is disclosed by either Party to the other Party, regardless of the form of disclosure. Confidential Information includes, without limitation, with respect to Avalara, the Avalara Technology and the Documentation, and with respect to Customer, all Customer Data and Personal Information, and with respect to both Parties, all information relating to business plans, customers and customer lists, data, designs, financial information, forecasts, Inventions, know-how, methods, market analysis, pricing, products, prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the disclosing Party.
b. Exclusions. Confidential Information does not include information that the receiving Party can establish: (i) (except with respect to Personal Information) 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; or (iv) has been independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
c. 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 (a “Disclosure Order”) then, unless otherwise prohibited 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. 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. If, in the absence of a protective order or other remedy or the receipt of a waiver by disclosing Party, receiving Party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency or similar entity, receiving Party may disclose, without liability hereunder, that portion of the Confidential Information that is legally required to be disclosed and receiving Party will exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
d. Restrictions on Use and Disclosure. Subject to the permitted disclosures set forth in Section 9(c) (Disclosures Required by Law), the receiving Party shall hold Confidential Information in strict confidence and shall not directly or indirectly disclose Confidential Information to third parties except as otherwise permitted by the Terms. The receiving Party may disclose Confidential Information to an employee, advisor, or consultant (“Representatives”) on the condition that the receiving Party: (i) ensures that such Representatives are bound by a written agreement that is as substantially protective as these Terms; and (ii) accepts full responsibility for its Representatives’ use of the Confidential Information. The receiving Party shall protect Confidential Information from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information and refrain from reverse engineering, decompiling or disassembling any Confidential Information.
e. Protection of Customer Data, Personal Information, and Confidential Information. Avalara will implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Customer Data, Confidential Information, or Personal Information. Avalara will implement processes and maintain procedures designed to comply with Applicable Laws and will facilitate Customer’s data security obligations with respect to Personal Information in Avalara’s possession or control to the extent that Customer is required to comply with the following: (i) the U.K. Data Protection Act 1998; (ii) Directive 95/46/EC of the European Parliament and of the Council and any applicable laws enacted by an EU member state implementing the requirements of the Directive; (iii) the Australian Privacy Act 1988 and National Privacy Principles; (iv) the Canadian Personal Information Protection and Electronic Documents Act; and (v) any amendments and successors to the aforementioned privacy laws, or any newly enacted laws regarding privacy. If Avalara engages a subcontractor to facilitate its obligations under the Agreement, Avalara will use commercially reasonable measures to ensure that such subcontractor implements and complies with reasonable security measures in handling any Customer’s Data, Personal Information, or Confidential Information.
f. Notice. Avalara will promptly notify Customer, as soon as reasonably practicable and not later than 72 hours from the time of confirmation by Avalara, of unauthorized access, use, or disclosure of any Customer Data, Confidential Information, or Personal Information under Avalara’s control. Each Party will reasonably cooperate with the other with respect to investigation and mitigation of any such unauthorized access, use, or disclosure. Upon confirmation of any vulnerability or breach of Avalara’s security, Avalara will modify its processes and security program as necessary to remediate the vulnerability or breach at Avalara’s sole cost and expense.
a. Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into this Agreement and perform its obligations hereunder; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose.
b. Avalara’s Warranties. In addition to the Accuracy Guarantee set forth in Section 4 (Accuracy Guarantee), Avalara offers the following warranties for the Services. For the sake of clarity, incorrect sales tax calculation results are covered by the Accuracy Guarantee and not by the following warranties.
i. Avalara warrants to Customer that: (1) the Avalara Technology Avalara provides to Customer will perform in all material respects in accordance with its applicable, then-current Documentation; (2) Avalara will use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the Avalara Technology provided to Customer contains no computer virus, Trojan horse, worm, or other similar malicious code; and (3) Avalara will perform the Avalara Professional Services in a professional manner and according to professional industry standards. Except as set forth in the Accuracy Guarantee, Avalara does not warrant that the Avalara Technology is free from all bugs, errors, or omissions.
ii. If Avalara fails to conform to any of the warranties in this Section 10(b) (Avalara’s 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 the Agreement upon immediate notice to Avalara, and Avalara will refund Customer a pro rata amount of (1) any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service excluding, for clarification, any activation (except if such nonconformance occurred in Customer’s Initial Subscription Term), implementation, or other fees or Expenses, and (2) any fees paid for the nonconforming Avalara Professional Services.
iii. The warranties in this Section 10(b) (Avalara’s Warranties) do not apply to the extent that the Avalara Services, systems, software, or Avalara Professional Services have been modified by persons other than Avalara’s employees or persons authorized by Avalara. The warranties in the Agreement are for Customer’s sole benefit, and do not extend to any other person or entity.
c. Customer’s Warranties. Customer represents and warrants that: (i) the information Customer provides in connection with the Services, including billing information, is current, accurate, and complete; and (ii) Customer is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons.
d. Disclaimer of Implied Warranties. Except as expressly provided in the Agreement, the Services are provided on an “as-is” and “as available” basis, and neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all implied warranties, to the maximum extent permitted by Applicable Laws.
a. Indemnification by Avalara. Except with respect to any claims based on an incorrect sales tax calculation result returned by AvaTax, which are exclusively governed by the Accuracy Guarantee (Section 4), Avalara will indemnify and defend Customer against any Losses and Litigation Expenses arising from a third party claim that (1) the use of the Avalara Services in accordance with the Agreement infringes an issued patent, copyright, trademark, or other Intellectual Property right of such third party (an “Infringement”); (2) results from Avalara’s breach of the Agreement; or (3) results from Avalara’s violation of Applicable Laws. “Loss” means any liability, loss, claim, settlement payment (including any settlement the Indemnitee agrees to pay as long as it is in a written settlement approved by Indemnitor in writing), cost and expense, interest, award, judgment, damages (including punitive damages), fines, fees, penalties, or other charges, other than a Litigation Expense. “Litigation Expense” means filing fees and court costs, witness fees, costs of investigating and defending third party claims, and reasonable attorneys’ and other professionals’ fees, and any other fees.
i. If the Avalara Services are subject to a claim of Infringement and as a result, Customer’s use of the Avalara Services is enjoined, then Avalara will, at no cost to Customer, procure for Customer the right to continue using the Avalara Services or replace them with non-infringing or modified Services of materially equivalent functionality.
ii. If none of the above options are available on terms that are commercially reasonable for Avalara, then Avalara may terminate Customer’s right to access and use the Services that require the infringing Avalara Services, in which case Avalara will refund Customer a pro rata amount of any prepaid, unused Service subscription fees (excluding, for clarification, any activation and implementation fees, unless the indemnification obligation arises in Customer’s Initial Subscription Term) applicable to the unutilized portion of the Subscription Term for the terminated Services.
iii. Avalara has no obligation with respect to any actual or claimed Infringement to the extent that the Infringement is caused by (1) Customer Data, (2) use or modification of the Avalara Services other than as specified in the Documentation or these Terms, or (3) combination of the Avalara Services with any products, software, services, data, or other materials not provided by Avalara or approved by Avalara in writing if the Infringement would not have occurred but for such combination.
b. Indemnification by Customer. Customer will indemnify and defend Avalara against Losses and Litigation Expenses arising from a third party claim that (i) Customer’s use of the Avalara Services in violation of the Agreement infringes the Intellectual Property rights of a third party; (ii) results from Customer’s breach of the Agreement; or (iii) results from Customer’s violation of Applicable Laws.
c. Process. The obligations of a Party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 11 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim within the scope of the Indemnitor’s defense or indemnity obligations set forth in these Terms, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor shall be given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not make any admissions on the Indemnitee’s behalf or 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 (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim at the Indemnitor’s expense.
d. Exclusive Remedy. This Section 11 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to any type of claim set forth in this section.
a. Subject to the restrictions in this Section 12 (Modifications), Avalara may modify these Terms or any Supplemental Terms. If Avalara modifies these Terms or any Supplemental Terms, it will provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. 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, subject to the terms of this Section 12 (Modifications).
b. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Subscription Term, an upgrade to the level of the Service purchased by Customer, or the purchase of an additional Service by Customer, then the modifications will become effective for ALL Services affected by the changes upon such upgrade, Service renewal, or purchase of an additional Service. Customer may avoid the applicability of the changes only by cancelling the renewal of Customer’s subscription prior to commencement of the Renewal Subscription Term or by choosing not to upgrade or purchase additional Service(s).
c. 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 (i) the date on which Customer delivers the termination notice, or (ii) the date on which the applicable modifications become effective, provided that Avalara shall continue to provide the Services to Customer as needed to manage a reasonable transition to another vendor, not to exceed 60 days, and at Avalara’s then current rates for Avalara Services to which Customer subscribes. If Customer terminates a Service subscription pursuant to this Section 12(c), 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, time and materials fees, Avalara Returns filing fees, Professional Service fees, or other Expenses incurred in connection with the Services or Avalara Professional Services. Notwithstanding the foregoing, if Customer elects to terminate during Customer’s Initial Subscription Term as a result of the Modification Notice, then Customer will be reimbursed for any activation fees.
d. If Customer does not terminate the affected Service subscription as specified in this Section 12 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
13. EXCLUSION OF CERTAIN CLAIMS; LIMITATION OF LIABILITY
a. Exclusion of Certain Claims. Neither Party will 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 the Agreement or of products, software or Services provided under the Agreement, or (ii) any claim, cause of action, breach of contract, indemnity, or any express or implied warranty, misrepresentation, negligence, strict liability, or other tort. The previous sentence will not apply to instances of gross negligence or willful misconduct, a Party’s breach of its confidentiality obligations set forth in Section 9 (Confidential Information), or a Party’s indemnification obligations set forth in Section 11 (Indemnification).
b. Limitation of Liability. Except for instances of gross negligence or willful misconduct, a Party’s aggregate liability will not exceed the fees paid or payable by Customer to Avalara under the Agreement in the 12-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to a Party’s indemnification obligations set forth in Section 11 (Indemnification), to Customer’s obligations to pay fees and expenses when due and payable, to noncompliance with the acceptable use policy by Customer, Customer Affiliates or Authorized Users, nor to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.
c. Limitation of Claims. Except with respect to claims of infringement or misappropriation of any Intellectual Property, misuse of Confidential Information or Personal Information, or Customer’s failure to pay amounts due, neither Party may bring any claim relating to the Agreement more than two years after the events giving rise to the claim occurred.
d. 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 Authorized Users. 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.
a. Relationship of the Parties; No Professional Tax Opinions or Advice. This Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Distributors and Avalara’s other business partners are independent of Avalara and are not Avalara’s agents. 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 shall conduct due diligence and seek the assistance of a qualified legal, tax or accounting professional.
b. Third Party Applications. Avalara is not responsible for nor does Avalara in any way endorse any Third Party Applications or websites linked to by Avalara’s website or Services. “Third Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties.
c. Publicity. Neither Party shall issue any public statement regarding the Agreement without the other Party’s prior written consent. Unless a Party has specifically notified the other Party to the contrary in writing, either Party may include the name or logo of the other Party in lists of customers or vendors.
d. 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 Order Document).
e. Governing Law; Jurisdiction and Venue. The Agreement will be governed by laws of the state of New York, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction. For any claims or causes of action arising out of the Agreement, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in the following locations: (i) if Customer is the plaintiff, in King County, Washington, and (ii) if Avalara is the plaintiff, in the applicable jurisdiction of defendant’s corporate headquarters or principal place of business in the United States, or if defendant does not have a principal place of business in the United States, in New York County, New York.
f. Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party or the Authorized Users violate the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
g. Force Majeure. Neither Party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this section must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use all commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, the other Party may, in its discretion, terminate this Agreement. Such termination will not result in any liability by either Party, except that, if Customer terminates this Agreement for Avalara’s failure, Avalara will provide a pro-rated refund for any prepaid Services that have been unused as of the date of termination.
h. Notices. Avalara will communicate announcements of general interest by email or by posting on its website or on Customer’s console. Avalara will provide Customer with legal notices by email, mail, or courier to the address provided by Customer. Customer shall immediately notify Avalara if Customer’s address for notice changes. Except as otherwise specified in the Agreement, all notices must be in writing, with account notices sent to firstname.lastname@example.org and legal notices sent to email@example.com.
i. Successors and Assigns. Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of its assets or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
j. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
k. Waiver. No waiver of any provision of the Agreement, nor consent by a Party to the breach of or departure from any provision of the Agreement, 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.
l. Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Except as specified in Section 12 (Modifications), the Agreement may not be modified or amended except by a written instrument executed by both Parties. Customer’s standard terms of purchase (including purchase order terms), if any, are inapplicable. Except to the extent expressly specified otherwise, if there is any conflict between these Terms and any of the other Agreement documents, then the following order of precedence applies: (i) any addendum between the Parties, (ii) the Order Document, (iii) the SOW, (iv) the Supplemental Terms of Service, and (v) these Terms.
15. PURCHASE THROUGH DISTRIBUTORS. The following section only applies to Customers who have purchased the Services through a Distributor. “Distributor” means an entity that Avalara has authorized as a distributor or reseller of Avalara’s Services. For the sake of clarity, this Section 15 (Purchase Through Distributors) does not apply if Customer did not purchase the Services through a Distributor.
a. Distributors. “Distributor Agreement” means the order, agreement or other document between Customer and a Distributor for Customer’s acquisition of Services. Any terms that apply to Customer’s use of the Services when purchased from a Distributor are set forth in this Section 15 (Purchase Through Distributors). In the event of any conflict between the provisions of these Terms and the Distributor Agreement, then the provisions of these Terms prevail. If a 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 Distributor.
b. Subscriptions through a Distributor. If Customer ordered the Services through a Distributor, then the Subscription Term will begin on the Effective Date and it will expire, renew, and terminate in accordance with the terms of the Distributor Agreement.
c. Purchases through a Distributor. If Customer ordered Services through a Distributor, then the billing, payment and termination sections of these Terms may not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Distributor Agreement. However, if the 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 Distributor and that Avalara is not liable to Customer in any manner for such suspension.
16. SUPPLEMENTAL TERMS OF SERVICE. The following supplement terms and conditions (“Supplemental Terms”) apply to Customer’s use of the following Services if Customer has purchased those Services: