Avalara Fiscal Representation Terms and Conditions
Last updated April 9, 2020
These Avalara Fiscal Representation Terms and Conditions (these “Fiscal Representation Terms”) govern Customer’s use of fiscal representation services 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 Return Service Terms located at www.avalara.com/us/en/legal/eu-mrs-terms.html (the “MRS Terms”).
Any capitalized terms used and not defined in these Fiscal Representation Terms have the meaning given in the Terms or the MRS Terms. For Avalara Fiscal Representation, any references in these Fiscal Representation Terms, the Terms, and the MRS Terms to “Avalara, Inc.” or “Avalara” will be deemed to be to “AFTC, Inc.,” an Affiliate of Avalara, Inc.
The following appendices constitute 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 the Customer’s tax representative within the meaning of Article 204 and others of Directive 2006/112/EC in the Selected Countries (as defined below) as purchased by Customer.
“EU” means the European Union.
“Payment Services” means, within the EU, any Avalara Fiscal Representation service relating to or involving payment services including without limitation such 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 outside the EU, any Avalara Fiscal Representation service relating to or involving money remittance, money transmission, issuing of payment instruments and/or acquiring of payment transactions, payment initiation services and/or the executing of payment transactions.
“SaaS” means software as a service.
“Selected Country” means the one or more member countries of the EU purchased by the Customer as set forth in an Order Document for which Avalara will provide Avalara Fiscal Representation. Avalara may change the countries for which it offers Avalara Fiscal Representation.
“VAT” means such value added tax as levied in accordance with Directive 2006/112/EC.
“VAT Obligations” mean, for a Selected Country, 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 Selected Country.
2. Avalara Fiscal Representation Described.
(a) Use of the Service. Avalara grants Customer a nonexclusive, nontransferable, worldwide right to access and use Avalara Fiscal Representation for the Selected Country(ies) during the Term, solely for Customer’s internal business operations. Avalara reserves all other rights, including without limitation those specified below. Avalara will act on behalf of Customer with respect to certain VAT Obligations related to fiscal representation in the Selected Countries. Avalara will only provide Avalara Fiscal Representation to Customer in Selected Countries where Customer has subscribed to the Managed Returns Service in those Selected Countries. Customer shall not purchase 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.
(b) Avalara Obligations. Avalara may carry out the following activities on behalf of Customer in each of the Selected Countries, to the extent required to comply with applicable VAT laws:
i. providing Avalara Fiscal Representation to Customer;
ii. providing the MRS Registration Service and the Managed Returns Service to Customer, whereby Filing Entities are deemed to be Customer and Filing Jurisdictions are deemed to be Selected Countries under these Fiscal Representation Terms;
iii. completing and processing supporting documents;
iv. calculating amounts of VAT Obligations on behalf of Customer. Avalara will generally perform such calculations based on estimated data, and any amounts of overpayments made by Customer when Avalara calculates final amounts of VAT Obligations will be refunded or otherwise credited to Customer in accordance with Avalara’s procedures;
v. facilitating the provision of Payment Services by a duly licensed third party (“Third Party PSP”) in order to remit amounts of VAT Obligations due by Customer to tax authorities; and
vi. assisting Customer to comply with local VAT requirements and undertaking all such actions as may be necessary or appropriate in connection with the foregoing.
(c) Appointment of Avalara as Fiscal Representative. Customer appoints Avalara as Customer’s exclusive fiscal representative solely for VAT purposes in the Selected Countries. Customer agrees to use Avalara Fiscal Representation for all of Customer’s activities relating to VAT and will not use any other fiscal representative for VAT purposes in any Selected Country during the Term. During the Term, Customer will not conduct any activities in a Selected Country that may give rise to any obligations related to fiscal representation or any other form of tax representation, other than activities related to Avalara Fiscal Representation that gives rise to VAT Obligations, and will immediately report to Avalara if it becomes aware of any such prohibited activities or related obligations.
(d) Avalara Affiliates and Subcontractors. Customer acknowledges and agrees that in the performance of Avalara Fiscal Representation under these Fiscal Representation Terms, Avalara may subcontract certain obligations to its Affiliates or third parties in one or more Selected Countries applicable for Customer hereunder. Upon purchasing Avalara Fiscal Representation, Customer shall provide such Affiliates or third parties with any documentation, or enter into any agreements Avalara may require in order for such Affiliates or subcontractors to perform Avalara Fiscal Representation in the Selected Countries, including a power of attorney and an appointment letter in the format required in the Selected Country and separately made available to Customer by or on behalf of Avalara.
(e) Payment Services offered hereunder will be provided in accordance with Applicable Laws by a Third Party PSP, duly licensed in the relevant European Union member state(s). Customer may be required to enter into separate agreements with the Third Party PSP and to pay the Third Party PSP certain fees, charges and expenses for the provision of the Payment Services.
(f) Where in a Selected Country a Third Party PSP is engaged by Avalara to remit amounts of VAT Obligations due by Customer to tax authorities, Customer acknowledges and agrees to pay, and to release and relinquish, amounts of VAT Obligations to the Third Party PSP in accordance with instructions received from Avalara. Customer further agrees that as between Avalara and Customer, Avalara will have the sole power and authority to issue instructions to the Third Party PSP for remittance of such VAT Obligations to tax authorities following their remittance by Customer to the Third Party PSP and, where applicable, to instruct the return of any overpayments to Customer in accordance with Section 2(b)(iv). In connection with such remittance activities, Customer further agrees to adhere and be subject to the following processes and requirements:
i. Customer or its authorized marketplace will receive instructions from Avalara related to Customer’s VAT Obligations, which instructions will indicate the amount of VAT Obligations owed by Customer and the date when Customer or its authorized marketplace must remit such VAT Obligations to the Third Party PSP as described below (a copy of such instructions will also be provided to the Third Party PSP);
ii. Customer or its authorized marketplace will timely fund the amount of such VAT Obligations by way of a credit transfer, on the due date determined by Avalara, of the relevant VAT Obligation amount to a designated account opened in the books of the Third Party PSP;
iii. the Third Party PSP will confirm to Avalara that the designated account has been credited with an amount equal to the amount specified in Avalara’s instruction to the Customer described under Section 2(f)(i); and
iv. subject to the payment requirements of a Selected Country, and upon instructions issued by Avalara, the Third Party PSP will process the VAT Obligations amount either by transferring the VAT Obligations amount to the bank account of the respective tax authorities or by arranging for the direct debit of this amount by the respective tax authorities, such direct debit being processed by the Third Party PSP and confirmed to Avalara when it is completed.
(g) Prior to acceptance of these Fiscal Representation Terms and at all times thereafter upon request from Avalara, Customer shall provide information regarding its legal existence, equity owners, legal representatives, officers, employees and other personnel, and otherwise related to its operations or circumstances as Avalara determines to be appropriate, in order to permit Avalara or its subcontractor to conduct “know your customer,” anti-money laundering, counter-terrorism financing, customer suitability, tax information exchange requirements (including but not limited to Foreign Account Tax Compliance Act, Common Reporting Standard, and other rules in particular any relevant EU directives on administrative cooperation) or related checks or inquiries in connection with Avalara’s legal and regulatory obligations, commercial considerations or best practices at any time during the Term (“Background Screen”). Customer expressly authorizes all such checks, inquiries and activities, shall provide additional information or otherwise cooperate with Avalara or its subcontractor in connection with the Background Screen, and represents and warrants that all information and data provided by it to Avalara or its subcontractor in connection with the Background Screen is and will at all times be true, accurate, and complete. If Customer provides any information or data related to its Background Screen directly to Avalara’s subcontractor or another third party, Customer expressly authorizes Avalara to obtain copies of, transmit to its Affiliates and third parties for processing, and use such information and data from such subcontractor or third party in connection with such Background Screen, in each case as Avalara determines to be appropriate in its discretion. Customer also expressly authorizes Avalara’s subcontractor or other third party to provide to Avalara, and Avalara to obtain, any analyses, conclusions or assessments made by such subcontractor or third party 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 under Section 5; provided that if Avalara refuses to provide Avalara Fiscal Representation, Avalara will refund any prepaid unused fees related to Avalara Fiscal Representation (excluding any activation or other one-time fees). At its option, upon its refusal to provide or termination of Avalara Fiscal Representation, Avalara may elect to offer fiscal representation to Customer through one or more third parties, in which case these Fiscal Representation Terms will not apply, Avalara will issue a separate Order Document and different fees and expenses may apply. Customer’s representations, warranties and obligations under this Section 2(g) will be deemed repeated and to continue at all times during the Background Screen process and through the end of the Term.
(h) Avalara reserves the right, in its discretion, to (i) revise the specific service elements provided through Avalara Fiscal Representation; (ii) impose rules for, limits on use of, or access to, Avalara Fiscal Representation; and (iii) change, suspend, or discontinue any aspect of Avalara Fiscal Representation. If Avalara modifies these Fiscal Representation Terms, such modification will be effective for Customer’s use of Avalara Fiscal Representation 30 days after the date of the updated Fiscal Representation Terms.
3. Certain Rights of Avalara With Respect to Avalara Fiscal Representation.
(a) If Avalara identifies any issues, 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.
(b) Avalara may suspend operations and activities at any time any amount payable by Customer hereunder or to any tax authority remains outstanding, or while any Customer action or provision of information remains outstanding hereunder. If Avalara invokes such right to suspend operations or activities, Avalara shall notify Customer accordingly.
(c) If Customer fails to meet or if Avalara determines that Customer may fail to meet any of its obligations under these Fiscal Representation Terms, Avalara may offset any refunds from any tax authorities in any Selected Country of whatever nature accruing to Customer in order to meet such obligations in whole or in part.
(d) Avalara shall have the right but not the obligation to consult or negotiate with the tax authorities in any Selected Country concerning tax levies, supplementary tax levies or other costs and matters arising under these Fiscal Representation Terms. Avalara shall charge for such services at its then-standard rates and shall provide notice to Customer of such charges in the normal course. Avalara shall consult with Customer regarding the engagement of third parties to handle claims and negotiations with the tax authorities in Selected Countries, all of which operations and activities will be at the additional expense and risk of Customer.
(e) Upon Avalara’s request, Customer shall cooperate with Avalara and provide requested information to address any unforeseen circumstances under these Fiscal Representation Terms. However, if Customer fails to respond to any such request within a reasonable period of time and immediate action is required, Avalara shall address the relevant circumstances in its discretion.
(f) At any time, in Avalara’s discretion, and without notice to Customer, Avalara may report any information related to Customer’s use of Avalara Fiscal Representation or its Background Check process (including without limitation Customer Data and Personal Information) to a regulator, law enforcement agency, or government department or unit in any Selected Country, in each case as Avalara determines to be required by Applicable Laws or otherwise appropriate and in accordance with Applicable Laws.
4. Customer’s Representations, Warranties, and Obligations.
(a) Customer shall perform all obligations under these Fiscal Representation Terms to facilitate Avalara’s fulfillment of its responsibilities as fiscal representative set forth in these Fiscal Representation Terms, including without limitation by (i) providing all information requested by Avalara necessary for it to perform the Avalara Fiscal Representation services, (ii) ensuring all of Customer’s payment obligations to Avalara or any third parties are timely paid in full, (iii) timely funding and remitting all tax liabilities in full (including without limitation Customer’s VAT Obligations), and (iv) providing proof of funding, including for the period after termination of these Fiscal Representation Terms during which any tax authorities may impose tax assessments retroactively. Promptly upon Avalara’s request, Customer shall provide Avalara with security for Customer’s VAT Obligations, or for any other payment obligations towards Avalara, a tax authority, or any third party arising under these Terms. Such security must be in the form of a first demand bank guarantee commonly used for fiscal representation services, and in such amount or such other form as Avalara determines to be appropriate in its discretion. Further, Avalara may require such security to be made in the form of one or more payments made to a Third Party PSP pursuant to Section 2(f) in addition to payments of VAT Obligation amounts, and such amounts of security will be subject to the instructions of Avalara under such section during the Term as Avalara determines to be appropriate.
(b) Under these Fiscal Representation Terms and as between the Parties, Customer is solely liable and responsible for all of its VAT Obligations in a Selected Country, including for timely and correct remittance and invoicing of any VAT amount due to any tax authority in that Selected Country, and for any penalties and interest incurred in relation to any late VAT filing, payment or otherwise. Customer shall pay all amounts of VAT Obligations in a Selected Country to the Third Party PSP on the dates specified in the Filing Calendar or other instruction provided by or on behalf of Avalara. Customer shall provide Avalara all information and documentation from Customer’s accounting systems or invoicing system that Avalara may need to provide to any tax authority. If Customer fails under these Terms to (i) pay Customer’s VAT Obligations in a Selected Country to the Third Party PSP in whole or in part and/or (ii) provide to Avalara in a timely manner the information or documentation required by Avalara to determine Customer’s VAT Obligations in a Selected Country, Avalara may take action with respect to Customer’s local VAT requirements in such Selected Country as Avalara determined to be appropriate in its discretion, which actions may include reporting no VAT Obligations for a period (filing a “nil return’”) and/or filing additional or supplementary VAT returns. Any such activities undertaken by Avalara, as well as any VAT Obligations arising from such activities, shall be at the expense and risk of Customer.
(c) Customer will ensure its invoices are compliant with the EU VAT Directive, 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 shall provide Avalara with VAT Data and any other required documents, information and data, including individual consignment or transaction data and all data regarding Customer’s supplies of goods and services within the EU for which VAT becomes due, required under relevant VAT regulations and these Fiscal Representation Terms, in conformity with Appendix A. Avalara may waive any of these requirements from time to time in its discretion. Customer represents and warrants that all such VAT Data, VAT-compliant invoices and other required documents information are true, complete, and accurate at all times during the Term.
(d) Customer represents and warrants that none of Customer, any of its Affiliates, or any of their respective officers, directors, owners, employees, representatives or agents 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, available at https://eur-lex.europa.eu/eli/dir/2018/1673/oj. 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. Customer’s representations and warranties in this Section 4(d) are deemed to be made continuously throughout the Term, and Customer shall 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.
(e) Customer shall promptly respond, as soon as practicable and not later than 7 days from the date of request by Avalara, to all information requests from Avalara in connection with the provision of Avalara Fiscal Representation, and Customer represents and warrants that all such information, and any other information provided by Customer in connection with Avalara Fiscal Representation, shall be true, complete, and correct.
(f) Customer represents and warrants that it is not (i) established for VAT purposes or (ii) registered for VAT purposes in any of the Selected Countries, nor that it is in the process to do so (except in connection with Avalara Fiscal Representation). Customer represents and warrants that it is current and fully paid up on its tax obligations in each Selected Country. During the Term, at Avalara’s request, Customer shall deliver to Avalara a tax certificate from its resident country or each Selected Country confirming that Customer complies with its VAT Obligations or a certificate of outstanding tax liabilities or any other similar type of certificate. At Avalara’s request, Customer shall provide Avalara with a true, complete, and correct copy of all information related to VAT matters in its resident country and any Selected Country, 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.
(g) Unless Customer notifies Avalara to the contrary in writing, Customer represents and warrants that none of Customer, any of its Affiliates, or any of their respective officers, directors, owners, employees, representatives or agents 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. Subject to this definition, a “PEP” generally refers to a current or former senior official in the executive, legislative, administrative, military, or judicial branch of a government (elected or not); a senior official of a major political party; a senior executive of a government owned commercial enterprise, being a corporation, business or other entity formed by or for the benefit of any such individual; an immediate family member of such individual; meaning spouse, parents, siblings, children, and spouse’s parents or siblings; or any individual publicly known (or actually known by the relevant financial institution) to be a close personal or professional associate.
(h) Customer represents and warrants that none of Customer, any of its Affiliates, or any of their respective officers, directors, owners, employees, representatives or agents is under sanction, prohibition, or restriction from any Selected Countries, the EU, any other EU member states, Canada, or the United States. Customer’s representations and warranties in this Section 4(h) are deemed to be made continuously throughout the Term, and Customer shall 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.
(i) In addition to its other obligations specified in these Fiscal Representation Terms, Customer will pay all fees and Expenses for Avalara Fiscal Representation. Except as otherwise provided in an Order Document, Customers will pay an annual subscription fee for each Selected Country designated by Customer. Further, Customer will pay all fees and Expenses for the Managed Return Service, other Services, Notices and other items in accordance with the MRS Terms and applicable Order Documents.
(a) Customer understands and agrees that Avalara may terminate Customer’s use of Avalara Fiscal Representation for any or all Selected Countries at any time, and without prior notice, for any reason or no reason as determined by Avalara in its discretion. Grounds for such termination include but are not limited to the following:
i. Customer violates any Applicable Laws, including in any Selected Country;
ii. Customer breaches these Fiscal Representation Terms;
iii. 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;
iv. if the power of attorney granted by Customer to Avalara or any Affiliate of Avalara terminates, any appointment of Avalara or any Affiliate of Avalara is terminated for any reason, or Customer fails to comply with any obligation towards Avalara or its Affiliates;
v. Any determination or finding Avalara makes based on Customer’s Background Screen; or
vi. if the Managed Returns Service for one or more Selected Countries, or any other Services or contractual relationship between Avalara and Customer, terminates for any reason.
(b) The Avalara Fiscal Representation termination date will be the earlier date on which either Customer’s access to Avalara Fiscal Representation is terminated in accordance with this Section or the date on which the appropriate form(s) to terminate Avalara or any of its Affiliates as Customer’s fiscal representative are filed with the respective tax authorities.
(c) Termination of Avalara Fiscal Representation will automatically lead to termination of any appointment under these Fiscal Representation Terms, and to the termination of any power of attorney granted under these Fiscal Representation Terms. If Avalara terminates Customer’s subscription for Avalara Fiscal Representation pursuant to this Section for any reason, Avalara will not refund any amount of fees to Customer (subject to Section 2(g)) nor shall Avalara be liable for any damages Customer incurs related to such termination. At its option, Avalara may but shall not be obligated to terminate Customer’s use of the Managed Return Service or any other Service upon Customer’s termination under these Fiscal Representation Terms.
(d) If required under any Applicable Laws or requested by Avalara, Customer shall 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 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).
(e) These Fiscal Representation Terms will continue to apply after termination to govern any continued liabilities to or obligations relating to any tax authority or other party that arise out of any Avalara Fiscal Representation.
6. Communications. By using Avalara Fiscal Representation or sending electronic messages to Avalara, Customer is communicating with Avalara electronically. Avalara may be required by law to send Customer communications about the Avalara Fiscal Representation or third-party products or services. By registering for the Avalara Fiscal Representation, sending Avalara an electronic message, or otherwise communicating with Avalara, Customer has agreed to communicate with Avalara electronically.
7. Account Access. Avalara Fiscal Representation requires Customer to provide certain information using Customer’s account, and Customer must provide current, complete, and accurate account information as requested (including any bank account information, and any access code to the relevant tax authorities’ website or portal). Customer is solely responsible for all activities that occur under its account using Customer’s access information, whether authorized by Customer 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 other than Avalara, authorized or otherwise, of Customer’s access information. Customer shall notify Avalara immediately of any unauthorized use of the account or any other breach of security.
8. Disclaimer of Warranties and Limitation of Liability. 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 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 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. 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 SELECTED COUNTRY, 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 SELECTED COUNTRY DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM IN THAT SELECTED COUNTRY. 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 SELECTED COUNTRY DUE TO A LATE OR MISSED FILING RESULTING FROM CUSTOMER’S FAILURE TO PROVIDE ANY REQUIRED INFORMATION OR TIMELY APPROVAL OF A RETURN, OR DUE TO LATE OR MISSED VAT OBLIGATION OR OTHER PAYMENT OWED BY CUSTOMER.
9. Limitation of Claims. Except as prohibited by Applicable Law, 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; Security. Under the laws of each Selected Country, it is expected that Avalara and Customer will have joint and several liability to that Selected Country’s tax authorities for Customer’s fulfillment of VAT 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, (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 hereunder), unless 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. If any Avalara Indemnitee incurs any liability in connection with the VAT Obligations or Customer’s actions or omissions hereunder, 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 these Fiscal Representation Terms or otherwise, Avalara has a right of retention and offset, and a right of pledge over, all moneys and other items of value that the Third Party PSP may hold on behalf of Customer, or that may be due from Avalara to Customer under these Fiscal Representation Terms 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 these Fiscal Representation Terms.
11. Order of Precedence; Interpretation. In the event of any contrary or inconsistent terms between the MRS 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 the Avalara Fiscal Representation. Any reference in these Fiscal Representation Terms to the “discretion” of Avalara means the “sole and absolute discretion” of Avalara.
12. Assignment. 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. Governing Law; Arbitration; Forum; Waiver of Jury Trial. These Fiscal Representation Terms will be governed by the laws of the State of New York, USA, without regard to its choice of law principles. Any dispute, controversy or claim arising under or relating to these Fiscal Representation Terms will be resolved exclusively by binding arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules then in effect (the “Rules”). The place of arbitration will be New York City, New York, USA. The language of the arbitration will be English. The arbitral tribunal will be composed of one (1) arbitrator appointed in accordance with the Rules. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. Judgment may be entered on the arbitration award in any court of competent jurisdiction. Subject to and without waiving the foregoing, and subject to any Party’s right to seek recognition and enforcement of an award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the Parties hereby irrevocably accept and submit to the exclusive jurisdiction of the courts of the United States or the State of New York sitting in New York City, New York, USA, with respect to any action or proceeding in aid of arbitration, for emergency or injunctive relief remedies, or in the event that the foregoing arbitration provision is found not to be enforceable for any reason. The Parties irrevocably waive any objection to the laying of venue or defense that the forum is inconvenient with respect to any such action or proceeding for such purpose. The Parties’ right to apply for such judicial relief in aid of arbitration and the commencement of any such suit, action or proceeding in aid of arbitration will not be deemed incompatible with, or a waiver of, the Parties’ agreement to arbitrate. The Parties acknowledge and agree that terms and conditions of these Fiscal Representation Terms have been freely, fairly, and thoroughly negotiated. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING BROUGHT UNDER THESE FISCAL REPRESENTATION TERMS. Each Party (i) certifies that no representative of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce the foregoing waiver, and (ii) acknowledges that it and each other Party has been induced to enter into these Fiscal Representation Terms by, among other things, the mutual waivers and certifications in these Fiscal Representation Terms.
14. 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) (Avalara’s Responsibilities); Section 2(e) (Customer Affiliates); Section 6(d) (Trial Period); Section 6(e) (Termination for Breach or Cause); Section 9(b) (Avalara’s Warranties); Section 10 (Indemnification); Section 12 (Exclusion of Certain Claims; Limitation of Liability); Section 13(e) (Governing Law); Section 13(f) (Equitable Relief); Section 13(g) (Force Majeure); and Section 13(i) (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 appropriately and in a timely manner no later than 10 days after expiry of the VAT return period. After termination of the Avalara Fiscal Representation, Customer shall continue to have the obligation, pursuant to Section 5(e), 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 the Customer in a Selected Country pursuant to these Fiscal Representation Terms.
REQUIRED DOCUMENTS, INFORMATION AND DATA PER TRANSACTION CARRIED OUT BY CUSTOMER IN A SELECTED COUNTRY, 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.