Avalara Trustfile GST Terms and Conditions
Last Updated November 14, 2017
These Avalara Trustfile GST Terms and Conditions (these “Terms”) together with any applicable Avalara’s sales order form (“Sales Order”) that describes the Services constitute a binding agreement (collectively, the “Agreement”) between Avalara, Inc. (“Avalara”) and the person or entity who purchases the Service and its agents (“Customer”) (each, a “Party”) under which Avalara provides Customer access to Avalara’s Trustfile GST Service (the “Service”). By accessing or using the Service, 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.
1. Trustfile GST Service.
a. Access to the Service. Avalara grants Customer a nonexclusive, nontransferable, worldwide right to access and use the Service during the Subscription Term, solely for Customer’s internal business operations. Avalara reserves all other rights, including, but not limited to, those specified below. By purchasing access to the Service or otherwise using the Service, Customer agrees to pay the applicable service fees for the Service and use the Service in compliance with these Terms 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 these Terms, Customer shall carefully review all data input into the Service directly or imported from any other application, service, or site to ensure the accuracy and completeness of that data. Customer shall also carefully review all returns prior to filing to ensure the accuracy and completeness of that data. Ensuring that all such data is accurate and complete is solely Customer’s obligation, and Avalara makes no warranty regarding such accuracy and completeness. Customer shall also ensure that the Services is properly configured at all times for Customer’s specific circumstances, 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 Content available through 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 these Terms, Customer’s sole remedy for such termination will be the refund of the pro-rata amount (if any) of any prepaid amounts for Service that Customer had not yet used at the time of termination. If Avalara modifies these Terms, such 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 use of the Service prior to the date that the updated Terms become effective for Customer.
a. Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date of the Initial Subscription Term and ends on the date of termination or expiration of the final Subscription Term.
b. Subscription Terms. Customer may purchase one or more subscriptions to the Service during the Term. The effective period (usually 12 months) of each subscription is a “Subscription Term” and, depending on the timing and agreed terms of the applicable Sales Order, those subscriptions may or may not have different Subscription Terms. Each Initial Subscription Term begins on an “Effective Date,” the service activation date as specified on the Sales Order, or, if not specified, the date of signing of Sales Order.
i. Initial Subscription Term. Customer’s initial Subscription Term for a Service (the “Initial Subscription Term”) is one year, which begins on the Effective Date and ends on the first anniversary of the Effective Date, unless the Sales Order specifies a different period.
ii. Automatic Renewal. At the end of the then-current Subscription Term, each subscription to a Service will automatically renew for an additional one-year period (a “Renewal Subscription Term”) unless (a) Customer provides written notice of non-renewal to Avalara on or before the expiration date of the then-current Initial Subscription Term or Renewal Subscription Term, or (b) Avalara provides written notice of non-renewal to Customer at least 30 days before such expiration date. Customers should submit notice of non-renewal or termination to email@example.com. Unless another payment method has been specified, Avalara will charge Customer’s payment information on file for the Service fees for the Renewal Subscription Term. If such 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 paid-up Subscription Term.
a. Customer will pay all fees for the Trust File Service based on Customer’s subscription plan for the Service, as specified in the Sales Order, at the beginning of the applicable Subscription Term. Each form transmitted for one filing period will count as one “Return.” If Customer’s usage exceeds the maximum described in the Sales Order, Avalara will invoice to Customer, and Customer shall pay, an overage fee for excess usage.
b. Customer’s subscription plan for the Service is specified in the applicable Sales Order form. Customer shall pay a per-invoice overage fee for all Returns filed in excess of Customers subscription plan. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Sales Order during a Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any unused volume to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Service subscription plan, then Customer must notify Avalara before the start of the next Subscription Term for the Service; the reduction will be effective at the start of that next Subscription Term.
c. Service fees are subject to annual increases at the level of then- current standard pricing, which will become effective beginning upon the first day of the next Subscription Term. Avalara will notify Customer of any increase at least 30 days prior to Customer’s renewal. Such notice may be in the form of an invoice or any other form of notice commonly used by Avalara to communicate with Customer. If Customer objects to the increase, then Customer may elect to not renew its order of Services. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or an additional Service, and (ii) expiration of any discount or incentive programs to which Customer was previously entitled.
4. Avalara does not grant Customer license, express or implied, to any Avalara intellectual property except as specifically authorized by these Terms. All material on the Service, including information, data, software, photographs, graphs, videos, text, graphics, music, sounds, compilations, and any other content (collectively, the “Content“) is the property of Avalara or its third party content suppliers and is protected by United States and international copyright and trademark laws. Customer shall use the Content solely for the uses specifically authorized on the Service and Customer will make no other use of it without Avalara’s express written permission. Except as specifically authorized, Customer shall not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit the Content. The Content is not for resale. Customer shall not delete or alter any proprietary rights or attribution notices in the Content. 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.
6. 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.
7. No Unlawful or Prohibited Use. Customer shall not use the Service for any purpose that is unlawful or prohibited by these Terms. 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.
8. 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 or the Content 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 CONTENT AND 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.
9. Confidential Information.
a. “Confidential Information” means all information designated by a Party as confidential, or given the circumstances, would reasonably be understood by the receiving Party to be confidential, and that is disclosed by either Party to the other Party, regardless of the form of disclosure.
b. Confidential Information does not include information that the receiving Party can establish: (i) (except with respect to Personal Information) has entered the public domain without the receiving Party’s breach of any obligation owed to the disclosing Party; (ii) has been rightfully received by the receiving Party from a third Party without confidentiality restrictions; (iii) is known to the receiving Party without any restriction as to use or disclosure prior to first receipt by the receiving Party from the disclosing Party; or (iv) has been independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
c. Restrictions on Use and Disclosure. The receiving Party shall hold Confidential Information in strict confidence and shall not directly or indirectly disclose Confidential Information to third parties except required under the law. The receiving Party shall protect Confidential Information from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information and refrain from reverse engineering, decompiling or disassembling any Confidential Information.
10. Disclaimer of Warranties and Limitation of Liability. THE SERVICE AND THE CONTENT ARE 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, AND AVALARA SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES.
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. Applicable Law, Jurisdiction, Venue. The laws of the State of Washington will govern these Terms 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 Content, or these Terms, both Customer and Avalara agree to personal jurisdiction in, and exclusive venue of, the state and federal courts located in King County, Washington.