Avalara TrustFile Terms and Conditions
Last Updated October 10, 2019
These Avalara TrustFile Terms and Conditions (these “Terms”), together with any applicable Order Document(s) (“Agreement”), constitute a binding agreement between Avalara, Inc. (“Avalara”) and the person or entity who uses or purchases the Service (“Customer”) (each, a “Party”) under which Avalara provides Customer access to Avalara’s TrustFile Service. By accessing or using the Service or by executing an Order Document that references these Terms, Customer agrees to be bound by these Terms and all terms incorporated by reference. If Customer does not agree to all of these Terms, it must not access or use the Service.
“Auto-file” means Avalara’s automatic filing of a Return. Customer may elect to activate Auto-file with respect to a particular jurisdiction via the Auto-file switch.
“Order Document” means a sales order, other document, or online order process used to purchase Services from Avalara.
“Return” means a tax return or other filing prepared with the assistance of TrustFile.
“Tax Professionals” means tax preparers who are authorized by clients to prepare Returns on their clients’ behalf for a fee.
“TrustFile” or “Service” means the Avalara service for preparing and filing sales and use tax returns.
2. TrustFile Service.
a. Access to the Service. Avalara grants Customer a nonexclusive, nontransferable, worldwide right to access and use the Service during the Trial Period and Subscription Terms, solely for Customer’s internal business operations. “Internal business operations” include the preparation and filing of Returns by Tax Professionals for their clients. Avalara reserves all other rights. By purchasing access to or otherwise using the Service, Customer agrees to pay the applicable service fees and to use the Service in compliance with the Agreement and any documentation or policies provided by Avalara that are applicable to the Service.
b. Customer’s Obligation to Review Data and Returns and to Configure the Service. In addition to all other obligations specified in the Agreement, Customer shall carefully review all (i) data input into the Service directly or imported from any other application, service, or site and on all Returns prior to filing (including Returns filed by Auto-file before the deadline set forth in TrustFile) (collectively, “Tax Data”) and (ii) if Avalara is filing Returns for Customer, tax registration numbers and log-in information for each entity in each filing jurisdiction sufficient to allow Avalara to identify and access Customer’s account in that filing jurisdiction (“Account Information”) to ensure the accuracy and completeness of that data or information. Ensuring that all Tax Data and Account Information is accurate and complete is solely Customer’s obligation, and Avalara makes no warranty regarding such accuracy and completeness. Avalara is not responsible for any charges, interest or penalties incurred as a result of incorrect Auto-file configuration, Tax Data or Account Information. Customer shall also ensure that the Service is properly configured at all times for Customer’s specific circumstances (including any Auto-file setting), and it is solely Customer’s obligation to do so.
c. Rights Reserved by Avalara. Avalara reserves the right, in its sole discretion, to (a) revise the Avalara Technology and the Service; (b) impose rules for, limits on use of, or access to, the Service; (c) restrict Customer’s access to part, or all, of the Service without notice; (d) change, suspend, or discontinue any aspect of the Service; or (e) change pricing for the Service. Avalara will not be liable to Customer or to any third party for taking any of the actions listed in (a)-(e) above. Avalara may terminate Customer’s use of the Service at any time, for any or no reason, and without prior notice. If Avalara terminates Customer’s access to the Service for any reason other than Customer’s breach of the Agreement, Customer’s sole remedy will be the refund of a pro-rata amount of any prepaid Subscription Fees applicable to the unused portion of the Subscription Period. If Avalara modifies these Terms, that modification will be effective for Customer’s use of the Service at the beginning of the next Subscription Term that begins at least 14 days after the date of the updated Terms. If Customer does not agree to such changed terms, Customer must contact Avalara to terminate subscription to the Service prior to the date that the updated Terms become effective for Customer.
3. Fees. Customer shall pay all fees specified in the Order Document. Fees for use of the TrustFile service consist of two elements, the periodic subscription fee (“Subscription Fee”) and fees for filing Returns.
a. Payment. Avalara shall charge Customer’s preferred payment method on file (e.g., credit card or ACH draw) for fees that are due. If a payment is not processed for any reason, Avalara may suspend access to the Service until payment is made. Customer shall not access the Service except during a Trial Period or paid-up Subscription Term. Fees are non-refundable.
b. Annual Subscription Fees and Automatic Renewal. The effective period of a TrustFile subscription is 12 months (the “Subscription Term”) beginning on the date Customer provides payment information. All subscriptions automatically renew for additional Subscription Terms at the end of each Subscription Term (each a “Renewal Subscription Term”) unless Customer notifies Avalara that it wishes to terminate the Service prior to the end of that Subscription Term. At the beginning of a Subscription Term, Avalara will automatically charge Customer’s preferred payment method for the Subscription Fee.
c. Filing Credits. A “Filing Credit” can be used to file a Return through the TrustFile Service. Filing Credits are non-refundable and non-transferable and may only be used to file Returns for the account for which they were purchased. If not used, Filing Credits will expire 12 months after the last purchase of Filing Credits. Avalara will apply any unused Filing Credits prior to billing for usage fees under Section 3(d).
d. Usage Fees. During a paid-up Subscription Term, Customer may file Returns through the TrustFile service. If Customer elects to enable Auto-file, Customer shall pay all fees associated with Returns filed by Auto-file. Avalara shall charge Customer’s payment method on file for the Returns filed through TrustFile in each month. Fees for filing Returns are provided on the Order Document or renewal notice and based on aggregate filings during the Subscription Term.
e. Annual Increases. TrustFile fees are subject to annual increases to 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 before the renewal date.
4. Restrictions. Avalara does not grant Customer license, express or implied, to any Avalara intellectual property except as specifically authorized by these Terms. All the technology and intellectual property used in providing the Service, including computer software programs, websites, networks, and equipment, and any content (collectively, the “Avalara Technology”) is the property of Avalara or its third party content suppliers and is protected by United States and international copyright and trademark laws. Avalara does not claim copyright for information provided by governmental agencies, but to the extent a compilation of that information was created by Avalara, Avalara owns the rights to that specific compilation. Customer shall only use the Avalara Technology and services as set forth in an Order Document or these Terms, and not for the benefit of any third party unless expressly permitted by these Terms. 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; (iii) distribute or display any of the Avalara Technology; (iv) share, sell, rent, lease, or otherwise distribute access to TrustFile, or use TrustFile to operate any timesharing, service bureau, or similar business; (v) alter, destroy or otherwise remove any proprietary notices within the Avalara Technology; or (vi) disclose the results of any benchmark tests to any third parties without Avalara’s prior written consent.
7. Account Password and Security. The Service requires Customer to open an account with the Service, and Customer must complete the registration process by providing current, complete, and accurate information as prompted by the applicable registration form. In addition to entering relevant account information, Customer will be asked to choose a password and a username. Customer is solely responsible for maintaining the confidentiality of the password, username, and other account information. Furthermore, Customer is solely responsible for all activities that occur under its account, whether authorized or not. Avalara will not be liable for any loss or damages that Customer may incur as a result of the use by any party, authorized or otherwise, of Customer’s password or account. Customer shall notify Avalara immediately of any unauthorized use of the account or any other breach of security.
8. No Unlawful or Prohibited Use. Customer shall not use the Service for any purpose that is unlawful or prohibited by the Agreement. This prohibition includes, but is not limited to, using the Service in a manner that could damage, disable, overburden, or impair any Avalara server, or the networks connected to any Avalara server, or interfere with any other party’s use and enjoyment of any of the Service. Customer shall not attempt to gain unauthorized access to the Service, other accounts, computer systems, or networks connected to Avalara through hacking, password mining, or any other means. Customer shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. Customer shall not use the Service to, nor permit any third party to: (a) promote Customer’s offerings or services (commercial or otherwise); (b) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others or publish, post, upload, or distribute any information that would result in the same; (c) download, upload, or otherwise make available materials, software, or information that is not legally Customer’s and without permission of the intellectual property rights owner or (d) impersonate someone else or falsely represent Customer’s identity or qualification, or to breach another’s privacy.
9. No Professional Tax Opinion and Advice. Customer acknowledges that Avalara does not provide professional tax opinions or tax management advice specific to the facts and circumstances of Customer’s business and that Customer’s use of the Service does not create any fiduciary obligations on the part of Avalara to Customer. Although Avalara strives to ensure that data and information contained in the Service are current and accurate, Avalara is dependent on third parties, including, but not limited to, state and local governmental agencies, to timely update and provide information that affect such data and information. As such, Customer agrees that it uses and relies upon the Service at its own risk and acknowledges that Avalara cannot guarantee that any data and information contained in the Service is accurate or current. In addition, due to rapidly changing tax rates and regulations that require interpretation by qualified tax professionals, Customer bears full responsibility to determine the applicability of the output generated by the Service and to confirm its accuracy. Customer shall conduct due diligence and seek the assistance of qualified tax counsel or accounting professionals on matters requiring professional advice.
10. Disclaimer of Warranties and Limitation of Liability. The Service is made available to Customer on an “as is” and “as available” basis, unless otherwise specified in writing. To the fullest extent permissible by applicable law, 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, but not limited to, information regarding tax rates or the applicability of certain taxes), or (b) any information imported from any other application, site, or service is accurate, current, or applicable to Customer or its business. 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 the Service, whether on warranties, claim of negligence, or otherwise, shall not in any case exceed the cost paid by customer to access the service during twelve-month period preceding the events giving rise to the claim or $300, whichever is less, and Avalara shall not be liable to Customer or any third party for cost of cover or any incidental, consequential, or special damages, including damages for loss of data, goodwill, use of money, stoppage of work, or any other claim.
11. Links to Third Party Sites or Services. Certain links on the Service may take Customer to third party websites or services. Avalara provides these links only as a convenience and the use by Avalara of such links does not imply any warrant or endorsement of the third party, its products, services, or its sites.
12. Trial Period. Customer may create a TrustFile account and use the account for up to 30 days before providing payment (the “Trial Period”). The Trial Period ends on the earlier of Customer providing a method of payment or 30 days from account activation date. Customer may file one Return through the TrustFile service without charge during the Trial Period or the first Subscription Term. To file additional Returns through the Service, Customer will need to subscribe to the Service.
13. Applicable Law, Jurisdiction, Venue. The laws of the state of Washington will govern the Agreement and use of the Service, without regard to any conflict of laws provisions that would result in the application of the laws of any other forum. In the event of any dispute relating to or arising out of the Service, the Avalara Technology, or the Agreement, both Customer and Avalara agree to personal jurisdiction in, and exclusive venue of, the state and federal courts located in King County, Washington.
14. 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 (a) the assigning Party must provide notice to the other Party of the assignment, (b) the assignee must agree in writing to be bound by the Agreement, and (c) the non-assigning Party may prohibit assignment to a competitor of non-assigning Party. 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.