Avalara Fiscal Representation Terms and Conditions
Last updated July 2, 2020
These Avalara Fiscal Representation Terms and Conditions (“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 appendix constitutes part of these Fiscal Representation Terms:
Appendix A – Information and Documents Required Per Transaction
“Avalara Fiscal Representation” means the Service where Avalara or its Affiliate acts as Customer’s tax representative within the meaning of Article 204 and others of Directive 2006/112/EC in the Selected Countries selected by Customer.
“EU” means the European Union.
“Payment Services” means, (i) 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 (ii) 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 countries selected by 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, within the EU, such value added tax as levied in accordance with Directive 2006/112/EC, and outside the EU, any tax levied by reference to added value, sales and/or consumption.
“VAT Obligations” mean, for a 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. Fiscal Representation Provided by Avalara.
(a) Use of Avalara Fiscal Representation. 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. Customer is not permitted to access Avalara Fiscal Representation on behalf of its Affiliate unless such Affiliate separately agrees to be bound by the Fiscal Representation Terms and Avalara separately agrees to provide Avalara Fiscal Representation to such Affiliate.
(b) Managed Returns Service. Avalara will only provide Avalara Fiscal Representation to Customer under these Fiscal Representation Terms in Selected Countries where Customer has subscribed to the Managed Returns Service in those Selected Countries. Provision of the Managed Returns Service and payment of the fees for this service will be governed by the MRS Terms.
(c) Avalara Obligations. Avalara may carry out the following activities on behalf of Customer in each of the Selected Countries, as Avalara determines to be required to comply with applicable VAT laws:
i. providing Avalara Fiscal Representation to Customer;
ii. completing and processing supporting documents, including documents related to termination of Avalara Fiscal Representation as applicable;
iii. facilitating the provision of Payment Services by a duly licensed third party (“Third Party PSP”) to collect and remit amounts of VAT Obligations due by Customer to tax authorities, based on estimated data. Any amounts of overpayments made by Customer following Avalara’s processing of VAT Obligation payments will be refunded or otherwise credited to Customer from Customer’s overpayment amounts, and any amounts of underpayments will be payable by Customer, in each case in accordance with Avalara’s procedures; and
iv. assisting Customer to comply with local VAT requirements related to fiscal representation in the Selected Countries as Avalara determines to be.
(d) Appointment as Fiscal Representative; Use of Affiliates and Third Parties. Customer appoints Avalara as Customer’s exclusive fiscal representative solely to assist Customer with its VAT compliance obligations in the Selected Countries. Avalara may appoint its Affiliate as its agent to carry out any activities under these Fiscal Representation Terms, and in such case all applicable references to “Avalara” in the Fiscal Representation Terms relating to such activities are deemed to reference such Affiliate. Avalara or such Affiliate may engage any of their Affiliates or third parties, including Third Party PSP, as subcontractor to perform certain obligations under these Fiscal Representation Terms. Avalara or its Affiliate may invoice Customer for the services provided under these Fiscal Representation Terms, and Customer shall pay all invoices to the Avalara entity that issued the invoice. Avalara is responsible for its Affiliate’s compliance with and performance of these Fiscal Representation Terms when acting as agent or subcontractor, and Customer shall bring any claims it may have solely against Avalara and not against such Affiliate. Customer will provide such Affiliates or third parties with any documentation or agreement required, to permit them to perform certain obligations of Avalara Fiscal Representation in the Selected Countries including a power of attorney and an appointment letter in the format required in the Selected Country.
3. Payment Services.
(a) Payment Services offered hereunder will be provided in accordance with Applicable Laws by Third Party PSP, duly licensed in the relevant European Union member state(s). Customer may be required to enter into separate agreements with Third Party PSP and to pay Third Party PSP certain fees, charges and expenses for the provision of the Payment Services.
(b) Where in a Selected Country Third Party PSP is engaged by Avalara to collect and remit amounts of VAT Obligations due by Customer to tax authorities, Customer agrees to pay, and to release and relinquish, amounts of VAT Obligations to Third Party PSP in accordance with instructions received from Avalara. Such VAT Obligations collected by Third Party PSP may be deducted from amounts that Third Party PSP holds on behalf of Customer. As between Avalara and Customer, Customer acknowledges Avalara will have the sole power and authority to issue instructions to Third Party PSP for collection and remittance of such VAT Obligations to tax authorities and, where applicable, to instruct the return of any overpayments to Customer in accordance with Section 3(b)(iv). In connection with such collection and remittance activities, Customer further agrees to adhere and be subject to the following processes and requirements:
i. Customer will receive instructions from Avalara related to Customer’s VAT Obligations that indicate the amount of VAT Obligations owed by Customer and the date by which Third Party PSP must be in receipt of such VAT Obligations as described below;
ii. Except where Third Party PSP is able to deduct sufficient amounts Third Party PSP holds on behalf of Customer, Customer will timely fund the amount of such VAT Obligations by way of a credit transfer to an account designated by Third Party PSP, on or before the due date determined by Avalara;
iii. 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 Customer described under Section 3(b)(i); and
iv. Subject to the payment requirements of a Selected Country, and upon instructions issued by Avalara, 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 Third Party PSP and confirmed to Avalara when it is completed.
4. Avalara’s Rights.
(a) Avalara reserves the right, in its discretion, to impose rules or limits for, or change, suspend, or discontinue any aspect of Avalara Fiscal Representation at any time. 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.
(b) If Avalara identifies any questions or ambiguities related to the application of VAT to Customer’s activities, Avalara may apply VAT rates Avalara determines to be appropriate in the filing of a VAT return or amendment of a VAT return previously filed.
(c) Avalara may suspend operations and activities on behalf of Customer at any time if Customer has not fully paid its VAT Obligations or other payment obligations under these Fiscal Representation Terms, or while any Customer action or provision of information is outstanding, after the relevant deadline. If Avalara invokes such right to suspend operations or activities, Avalara will notify Customer accordingly and may also notify affected third parties.
(d) If Avalara determines that Customer fails or 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.
(e) Avalara may consult or negotiate with the tax authorities in any Selected Country concerning tax levies, or other costs and matters arising under these Fiscal Representation Terms. Avalara will charge for such services at its then-standard rates and will 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 will be at the additional expense and risk of Customer.
(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 Screen (as defined below) 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 appropriate and in accordance with Applicable Laws.
5. Customer’s Obligations.
(a) Customer is prohibited from conducting any activities in a Selected Country that may give rise to any VAT Obligations that are not reported to Avalara, or that may give rise to any other form of tax representation. If at any time during the Term Customer becomes aware of any such prohibited activities in any Selected Country that may require fiscal or tax representation, Customer will immediately notify Avalara in writing. Further, Customer will ensure that Avalara Fiscal Representation is properly configured with its systems to ensure that all VAT Obligations in a Selected Country for Customer’s specific circumstances are managed through Avalara Fiscal Representation, and it is solely Customer’s obligation to do so.
(b) Customer is required to deposit certain amounts that include VAT Obligations payable in each Selected Country into one or more accounts maintained by Third Party PSP, as directed by Avalara. Customer balances in such account(s), will be subject to Avalara’s instructions as specified in these Terms, including in Sections 3 and 8.
(c) 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 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. Upon request, Customer will provide proof of funding for any applicable VAT or other obligation, 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 will provide Avalara with security for Customer’s VAT Obligations, or for any other payment obligations to Avalara, a tax authority, or any third party arising under these Fiscal Representation Terms. Avalara may require such security to be made in the form of one or more payments made to Third Party PSP pursuant to Section 3(b) in addition to payments of VAT Obligation amounts, and such amounts of security will be subject to the instructions of Avalara during the Term as Avalara determines to be appropriate. Avalara may also require such security to be in the form of a first demand bank guarantee or in such other form and in amounts Avalara determines to be appropriate in its discretion.
(d) During the Term, at Avalara’s request, Customer will 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. Also upon Avalara’s request, Customer will provide a 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. 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 will provide Avalara information, in the format and manner specified by Avalara, for all transactions giving rise to VAT Obligations in each Selected Country, as required under relevant VAT regulations and in accordance with Appendix A, and in response to all other requests Avalara determines to be appropriate in connection with Avalara Fiscal Representation. Customer will respond promptly, in no event later than 7 days from the date of the request, to all information requests from Avalara related to Avalara Fiscal Representation.
(e) If Customer fails under these Fiscal Representation Terms to (i) pay Customer’s VAT Obligations in a Selected Country to 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.
(f) Prior to acceptance of these Fiscal Representation Terms and at all times thereafter upon request, Customer will provide all information requested by Avalara or its subcontractor regarding Customer’s legal existence, equity owners and other affiliated persons, and otherwise related to its operations or circumstances, to conduct “know your customer,” anti-money laundering, customer suitability, tax information exchange requirements or related checks or inquiries based on Avalara’s legal and regulatory obligations or commercial considerations (“Background Screen”). Avalara may use Third Party PSP or another third party as a subcontractor for this purpose. Customer expressly authorizes all such checks, inquiries and activities, will provide additional information or otherwise cooperate with Avalara or its subcontractor in connection with the Background Screen. If Customer provides any information or data related to its Background Screen directly to Avalara’s subcontractor, 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 in connection with such Background Screen as Avalara determines to be appropriate. Customer also expressly authorizes Avalara’s subcontractor to provide to Avalara, and Avalara to obtain, any analyses, conclusions or assessments made by such subcontractor 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 7; provided that if Avalara refuses to provide Avalara Fiscal Representation for a reason other than failure to timely make VAT payments and/or provide requested documentation, 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.
6. Customer’s Representations and Warranties.
(a) Customer represents and warrants that none of Customer, any of its Affiliates, or any of their respective officers, directors, owners, employees, representatives or agents (the “Customer Affiliated Parties”) is or has engaged in, been charged with or indicted for, or convicted of, any “criminal activity” as defined in Article 2 of the Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law, 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.
(b) 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, unless such establishment or registration is agreed to in writing by Avalara. Customer will take all actions requested by Avalara to transition any prior VAT registrations to enable Avalara to provide Avalara Fiscal Representation. Unless separately notified to Avalara in writing prior to entering into these Fiscal Representation Terms, Customer represents and warrants that it has no tax liability in each Selected Country.
(c) Unless Customer notifies Avalara to the contrary in writing, Customer represents and warrants that none of the Customer Affiliated Parties is a Politically Exposed Person (“PEP”) as defined by the Financial Action Task Force and which definition is located in the document available at https://www.fatf-gafi.org/documents/documents/peps-r12-r22.html. 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. Customer represents and warrants that none of the Customer Affiliated Parties is under sanction, prohibition, or restriction from any Selected Countries, the United Nations, the EU, any other EU member states, Canada, or the United States.
(d) Customer represents and warrants that all information and documentation provided to Avalara under these Fiscal Representation Terms, including without limitation in relation to Payment Services and to fulfil its obligations under Section 5, are true, correct and complete.
(e) Customer’s representations and warranties in this Section 6 are deemed to be made continuously throughout the Term, and Customer will immediately provide written notice in reasonable detail to Avalara at any time that such statement ceases to be true, correct, or complete during the Term.
(a) Customer acknowledges that Avalara may, at its option, 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, including by failing to timely provide required information or fund VAT Obligations or other payments;
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, or any appointment of Avalara or any Affiliate of Avalara is terminated for any reason;
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. Termination of Avalara Fiscal Representation will automatically lead to termination of any appointment or any power of attorney granted under these Fiscal Representation Terms.
(c) Upon any termination by Avalara under this Section, Avalara will not refund any amount of fees to Customer (subject to Section 5(e)). Avalara expressly disclaims liability for any damages Customer incurs related to such termination. At its option, Avalara may cause Customer’s use of any other product or service offered by Avalara or any Affiliate to be terminated upon Customer’s termination under these Fiscal Representation Terms.
(d) If required under any Applicable Laws or requested by Avalara, Customer will appoint another fiscal representative that assumes Avalara’s obligations under these Fiscal Representation Terms immediately following termination of Customer’s subscription for Avalara Fiscal Representation, 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) Following any termination under this Section, Customer remains subject to all obligations and liabilities, including VAT and other payment obligations and information requirements, arising out of or related to Avalara Fiscal Representation prior to termination.
8. Fees. By purchasing access to or otherwise using Avalara Fiscal Representation, Customer agrees to 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. Invoices or other Order Documents specifying such fees may be issued and sent to Customer on behalf of Avalara or its Affiliates by Third Party PSP or another service provider. Unless otherwise expressly set forth in an invoice or other Order Document, all subscription fees are exclusive of any VAT or other tax obligations applicable to the provision of Avalara Fiscal Representation, which constitute the additional payment obligations of Customer. Customer authorizes Third Party PSP to collect subscription fees and pay such amounts to Avalara or its Affiliate, provided that Customer may also pay such amounts to Avalara or its Affiliate directly. Any subscription fees collected by Third Party PSP may be deducted from amounts that Third Party PSP holds on behalf of Customer. In addition, 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.
9. 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.
10. 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.
11. 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 LAWS, AVALARA DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. AVALARA SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT (A) ANY GOVERNMENTAL INFORMATION (INCLUDING WITHOUT LIMITATION INFORMATION REGARDING TAX RATES OR THE APPLICABILITY OF CERTAIN TAXES), OR (B) ANY INFORMATION IMPORTED FROM ANY OTHER APPLICATION, SITE, OR SERVICE, IS ACCURATE, COMPLETE, CURRENT, OR APPLICABLE TO CUSTOMER OR ITS BUSINESS. 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. Except as prohibited by Applicable LawS, Customer may not bring any claim relating to these Fiscal Representation Terms or Avalara Fiscal Representation more than two years after the events giving rise to the claim occurred.
12. Indemnification; Liability of Customer; Security. Subject to the laws of each Selected Country, Avalara and Customer may have joint and several liability to that Selected Country’s tax authorities for Customer’s fulfillment of VAT Obligations. If Avalara incurs any liability, or is compelled to pay any amount related to Customer’s actions, omissions, or obligations, Customer shall indemnify and hold harmless, and at Avalara’s option shall defend, Avalara, each of its Affiliates, and each of its and their officers, directors, owners, employees, representatives and agents (each, an “Avalara Indemnitee”) from and against any liability, loss, settlement payment (including any settlement an Avalara Indemnitee agrees to pay), interest, award, judgment, damages (including punitive damages), fines, fees, penalties, filing fees and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses and charges (“Losses”) incurred by, or pending or threatened against, any Avalara Indemnitee that arise out or relate to any (i) any VAT Obligations, (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 under these Fiscal Representation Terms, 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 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.
13. 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.
14. 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.
15. 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 LAWS, 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.
16. 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 2(f) (Avalara 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 in the manner and format specified by Avalara no later than 7 days after expiry of the VAT return period. After termination of Avalara Fiscal Representation, Customer shall continue to have the obligation, pursuant to Section 7, for the period during which the authorities may impose tax assessments retroactively, to cooperate in every way and if so required provide all documents, information, and data concerning the activities carried out within the framework of these Fiscal Representation Terms.
Description of any transactions for which Avalara is to act as fiscal representative for Customer in a 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.