Avalara Professional Services Terms and Conditions
Effective as of February 10, 2020
These Avalara Professional Services Terms and Conditions (“Professional Services Terms”), together with the Services Schedule (as defined below) (collectively, the “PS Agreement”), constitute a binding agreement between Avalara, Inc. (“Avalara”) and Customer under which Avalara or its Affiliates (as defined below) provides consulting, implementation, and other professional services (the “Professional Services”) to Customer. In these Professional Services Terms, “Customer” means the entity or person that receives the Professional Services and is specified in a Services Schedule and “Party” means each of Avalara and Customer.
1. Project Authorization & Services. The Professional Services to be provided by Avalara will be those set forth in any mutually agreed services schedule, order form, statement of work, or other document executed by Avalara and Customer referencing these Professional Services Terms (each, a “Services Schedule”). The Professional Services may include (i) configuration, implementation, training, or other consultation related to an Avalara product or service that Customer has received rights to use under a separate agreement, (ii) tax advisory services, or (iii) other consulting services related to Customer’s tax determination and compliance needs. Each Services Schedule is governed by these Professional Services Terms. If the terms of a Services Schedule conflict with these Professional Services Terms, the term in the Services Schedule will control.
2. Payment for Professional Services. Unless otherwise specified in the applicable Services Schedule, fees are invoiced and due in full upon execution of the Services Schedule. Customer is responsible for all applicable federal, state, provincial and local sales, use, excise, value-added, or other similar taxes, levies or duties due on the Professional Services. Unless expressly specified otherwise in any Order Document, all fees, rates and estimates exclude such taxes, levies and duties. Avalara is solely responsible for taxes based upon Avalara’s net income, assets, payroll, property, and employees. If any change in the scope of the Professional Services affects the time or cost of performance under the applicable Services Schedule, the Parties will agree in writing to adjust the time and compensation to make the modification effective. Unless otherwise specified in the applicable Services Schedule, Customer shall reimburse Avalara, without markup, for reasonable expenses incurred by Avalara in the course of performing the Professional Services, including, for example, materials and expenses for preapproved travel.
3. Term and Termination. The term of the PS Agreement (the “Term”) will begin on the effective date specified in the applicable Services Schedule (“Services Effective Date”) and end on the date that the Professional Services are completed (“Services Completion Date”). Either Party may terminate the PS Agreement upon written notice to the other Party (i) if the other Party materially breaches the PS Agreement and fails to cure such breach within 30 days following receipt of written notice describing the breach or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. If Customer terminates for Avalara’s material breach, Customer shall be liable only for payment for the Professional Services rendered through the termination date and will receive from Avalara a pro-rata refund of any prepaid fees applicable to the unused Professional Services. If Avalara terminates for Customer’s material breach, Avalara will not refund any amounts to Customer. All provisions that by their nature should survive termination will do so (including, for example, payment obligations, indemnification and defense obligations, and duties of confidentiality).
4. Provision of Professional Services.
a. Unless otherwise specified in the applicable Services Schedule: (i) Avalara will perform the Professional Services based on the schedule set forth in the Services Schedule; (ii) any estimates of hours or cost are reasonable and good-faith estimates only; and (iii) each task will be performed and payable on a time-and-materials basis.
b. Unless otherwise specified in the applicable Services Schedule, an unused order for Professional Services will expire 12 months from the date of order, and Customer will not be entitled to receive a refund for any fees prepaid for such expired Professional Services.
c. Avalara, in its sole discretion, may provide the Professional Services through its Affiliate or a third-party representative. “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party, where “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity. Avalara is responsible for its Affiliate’s or third-party representative’s compliance with the terms of the PS Agreement, and Avalara shall be responsible for their acts and omissions relating to the PS Agreement as though they were those of Avalara. Avalara or its Affiliate may invoice Customer for the Professional Services, and Customer shall pay all invoices to the Avalara entity that issued the invoice. Customer shall bring any claims it may have solely against Avalara and not against any Avalara Affiliate or third-party representative providing or invoicing for the Professional Services.
d. Unless otherwise agreed by Customer in writing, Avalara shall provide all equipment, supplies, and personnel necessary or appropriate to perform the Professional Services. For clarity, this provision does not apply to the Avalara product or service to which the Professional Services relate, the provision of which will be governed by the separate agreement with Customer for that product or service.
e. Customer acknowledges and agrees that (i) Avalara will not update its advice, recommendations or work product after the completion of the Professional Services (including, for example, updates to reflect changes or modifications to applicable law and regulations, or to related judicial and administrative interpretations, or for subsequent events or transactions), unless Customer separately engages Avalara to do so in writing; and (ii) in performing the Professional Services, Avalara is entitled to base its conclusions on and rely on the accuracy and completeness of the information, data, and assumptions that are furnished by or on behalf of Customer, without any independent investigation or verification. Inaccuracy or incompleteness of any data, information, or assumptions furnished to Avalara could have a material adverse effect on Avalara’s conclusions.
5. Customer Materials; Access. Customer shall provide Avalara with access to information, data, materials, software and hardware as reasonably required for Avalara to perform the Professional Services (“Customer Materials”). Customer hereby grants Avalara a limited right to use the Customer Materials solely for the purpose of performing the Professional Services. Customer represents and warrants that it has all rights necessary in the Customer Materials to provide them to Avalara for this purpose. Customer shall provide Avalara with safe access to Customer’s premises as reasonably required for Avalara to perform the Professional Services, if onsite performance of Professional Services is agreed to by Customer. Avalara personnel shall comply with the reasonable written rules and regulations of Customer related to use of its premises, provided that those written rules and regulations are provided to Avalara prior to commencement of the Professional Services. Avalara shall not be responsible for failures or delays in performing Professional Services due to Customer’s failure or delay to provide access to Customer Materials or Customer premises or due to Customer-imposed or government-imposed security requirements.
6. Intellectual Property Rights.
a. Customer has and will retain sole and exclusive right, title, and interest in and to all of Customer’s Confidential Information (as defined in Section 12 below), Customer Materials, and any third-party data and third-party account information provided by Customer to Avalara (collectively, “Customer Property”), including any and all intellectual property rights therein. Avalara has and will retain sole and exclusive right, title, and interest in and to all of Avalara’s Confidential Information, Avalara products, Avalara services, Avalara documentation, and all Avalara technology, platforms, methodologies, processes, techniques, ideas, concepts, inventions, designs, tools, trade secrets, and know-how, and any modifications, improvements, or derivative works of the foregoing, including any and all intellectual property rights therein (collectively, “Avalara Property”). For clarity, Avalara’s ownership rights do not extend to Customer Property uploaded to, embedded or incorporated in the Avalara Property. Notwithstanding anything to the contrary in the foregoing, Avalara may create, generate and use Aggregate Data for any lawful purpose, both during and after the Term. “Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple Avalara customers (including Customer) for the purpose of expressing that information in summary form (for example, price index numbers are aggregated, in contrast to the price of a single commodity). Aggregate Data does not include any personal information relating to Customer; Customer’s clients, authorized users or customers, or other information that could reasonably identify or relate to a natural person.
b. If Customer provides Avalara with any suggested improvements to the Avalara services, then then that suggestion is provided as is, and Customer also grants Avalara a non-exclusive, perpetual, irrevocable, fully paid up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such suggested improvements. Notwithstanding the foregoing, nothing in this Section 6(b) (Suggestions) grants Avalara a license to use any methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets, or know-how covered by a registered patent owned by Customer.
c. Unless expressly stated otherwise in a Services Schedule, and excluding any Customer Property, Avalara will retain all right, title, and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, inventions, designs, tools, trade secrets, and know-how, and any modifications, improvements, or derivative works of the foregoing, resulting from the Professional Services, including any intellectual property rights therein (“Services Results”). To the extent that the ownership of the Services Results does not automatically vest in Avalara, Customer hereby assigns and shall assign to Avalara the Services Results and all right, title and interest therein and thereto that Customer may have now or in the future. Upon full payment of all fees and expenses owing to Avalara under the applicable Services Schedule, Avalara hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license to access and use the Services Results provided to Customer for the purposes specified in the Services Schedule.
7. Warranty. Provided that Customer performs its obligations to Avalara under these Professional Services Terms and the applicable Services Schedule, Avalara warrants to Customer that the Professional Services will be performed in a professional manner consistent with generally accepted industry practice. Avalara’s warranty shall expire 30 days after the applicable Services Completion Date or the termination of the Services Schedule, whichever occurs first. Avalara’s warranty shall only be effective if Customer notifies Avalara of the breach of warranty before that expiration date. Avalara’s sole and exclusive obligation for breach of warranty will be, at Avalara’s option, to (a) use commercially reasonable efforts to reperform the Professional Services in a manner that conforms to the warranty, or (b) refund to Customer the fees paid by Customer to Avalara for the nonconforming Professional Services. The remedies set forth in this paragraph are Customer’s exclusive remedies for any breach of warranty.
8. Exclusion of Warranties. Except for the express warranty set forth in Section 7 of these Professional Services Terms, the Professional Services are provided “as is”. Avalara expressly disclaims any other warranties of any kind, whether express, implied, or statutory, including but not limited to merchantability, fitness for a particular purpose, noninfringement, design or suitability, quality of service, or any warranties arising from course of dealing, usage or trade. Avalara does not guarantee in any way that the results of any analysis or reports it produces are accurate.
9. Exclusion of Certain Claims; Limitation of Liability.
a. Exclusion of Certain Claims. Neither Party will be liable to the other Party or any other party for cost of cover or any consequential, indirect, special, punitive, incidental, exemplary, or lost profits damages of any kind, whether foreseeable or unforeseeable, including but not limited to any damages for loss of data, goodwill or investments, use of money or facilities, interruption in use or availability of data, stoppage of other work, or impairment of other assets, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to instances of gross negligence or willful misconduct, a Party’s breach of its confidentiality obligations set forth in Section 12 (Confidential Information), or a Party’s indemnification obligations set forth in Section 13 (Indemnification).
b. Limitation of Liability. Neither Party’s aggregate liability will exceed the fees paid or payable by Customer to Avalara for the specific Services Schedule under which the event giving rise to the claim arose. The previous sentence does not apply to instances of gross negligence or willful misconduct, a Party’s indemnification obligations set forth in Section 13 (Indemnification), to Customer’s obligations to pay fees and expenses when due and payable, to noncompliance with Avalara’s acceptable use policy by Customer (located at http://www.avalara.com/legal/acceptable-use), or to any infringement or misappropriation by a Party of any intellectual property rights of the other Party.
c. Limitation of Claims. Except with respect to claims of infringement or misappropriation of any intellectual property rights of the other Party, a Party’s breach of its confidentiality obligations set forth in Section 12 (Confidential Information), or Customer’s failure to pay fees and expenses when due and payable, neither Party may bring any claim relating to these Professional Services Terms or any Services Schedule more than two years after the events giving rise to the claim occurred.
d. General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such Party. Without these limitations, the fees for the Professional Services would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the Parties may have additional rights.
10. Relationship of the Parties; No Professional Tax Opinions or Legal Advice. The PS Agreement does not create a partnership, joint venture, agency, employment or fiduciary relationship between the Parties. Distributors and Avalara’s other business partners are independent of Avalara and are not Avalara’s agents. Customer acknowledges and agrees that Avalara does not provide legal advice, including legal or professional tax opinions, or management advice. Customer is responsible for its own tax policies and tax reporting positions taken. Customer is responsible for conducting its own due diligence and seeking the assistance of a qualified legal, tax, or accounting professional.
11. Non-solicitation. During the Term and for a period of six months thereafter, neither Party shall solicit for employment any employee of the other Party who (a) worked directly on the Professional Services, and (b) came into regular and direct contact with the soliciting Party as the result of such work on the Professional Services. This restriction does not prohibit either Party from hiring employees of the other Party who respond to job advertisements directed to the general public.
12. Confidential Information. In the course of providing and receiving the Professional Services, each Party (the “Disclosing Party”) may have access to Confidential Information (as defined below) of the other Party (the “Receiving Party”). This Section 12 (Confidentiality) governs Confidential Information provided and received solely in conjunction with providing and receiving the Professional Services, and any Confidential Information provided and received as part of any other services provided by Avalara will be governed by the applicable confidential information provisions of the agreement or terms governing such services.
a. Definition. “Confidential Information” means all information that is designated by the Disclosing Party as confidential, or given the circumstances, would reasonably be understood by the Receiving Party to be confidential, and that is disclosed by the Disclosing Party to the Receiving Party, regardless of the form of disclosure. Confidential Information includes, without limitation, with respect to Avalara and its Affiliates, Avalara’s technology and any related documentation, and with respect to Customer, all Customer’s proprietary data and any personal information in possession of Customer, and with respect to both Parties, all information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental or planned), financial information, forecasts, inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the Disclosing Party.
b. Exclusions. Confidential Information does not include information that the Receiving Party can establish: (i) (except with respect to personal information) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) has been rightfully received by the Receiving Party from a third party without confidentiality restrictions; (iii) is known to the Receiving Party without any restriction as to use or disclosure prior to first receipt by the Receiving Party from the Disclosing Party; or (iv) has been independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
c. Disclosures Required by Law. If any applicable law, regulation or judicial or administrative order requires the Receiving Party to disclose any of the Disclosing Party’s Confidential Information (a “Disclosure Order”) then, if legally permitted, the receiving Party shall () promptly notify the Disclosing Party in writing prior to making any such disclosure, in order to facilitate the Disclosing Party’s efforts to protect its Confidential Information. Following such notification, the Receiving Party shall cooperate with the Disclosing Party, at the Disclosing Party’s reasonable expense, in seeking and obtaining protection for the Disclosing Party’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency or similar entity, the Receiving Party may disclose only that portion of the Confidential Information that is legally required to be disclosed and the Receiving Party shall exercise reasonable efforts to preserve the confidentiality of the remaining Confidential Information.
d. Restrictions on Use and Disclosure. The receiving Party shall use Confidential Information of the Disclosing Party solely as permitted under the PS Agreement. The receiving party shall hold Confidential Information in strict confidence and shall not disclose or authorize the disclosure of Confidential Information to third parties except as otherwise permitted by the PS Agreement. The receiving party may disclose Confidential Information to an employee, advisor, consultant, service provider, agent or representative (any of these, a “Representative”) on the condition that the receiving Party: (i) ensures that such Representatives are bound by a written agreement or other legally binding obligations of confidentiality and restricted use at least as protective as these Professional Service Terms; and (ii) is fully responsible for its Representatives’ disclosure and use of the Confidential Information and its compliance with the obligations of the Receiving Party under this Section. The receiving Party shall protect Confidential Information of the Disclosing Party 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 of a similar nature and shall not reverse engineer, decompile or disassemble any such Confidential Information (except, in the case of Avalara, as required for the performance of the Professional Services).
a. Indemnification. Each Party (the “Indemnifying Party”) will indemnify and defend the other Party and its directors, officers, employees, and Affiliates (the “Indemnified Party”) against any Losses incurred as a result of a third-party claim or action that (1) the use of technology or information provided by the Indemnifying Party under these Professional Services Terms infringes copyright, registered trademark, issued patent, or other intellectual property right of such third party, or (2) results from the Indemnifying Party’s violation of any applicable law or regulation. “Loss” means any liability, loss, settlement payment (including any settlement the Indemnified Party agrees to pay, as long as it is in a written settlement approved by Indemnifying Party in writing), interest, award, judgment, damages (including punitive damages), fines, fees, penalties, filing fees and court costs, witness fees, and reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses and charges resulting from the indemnified third-party claim.
b. Process. The obligations of the Indemnifying Party to defend or indemnify the Indemnified Party under this Section 13 (Indemnification) are subject to the following: (i) the Indemnified Party must promptly inform the Indemnifying Party in writing of any claim within the scope of the Indemnifying Party’s defense or indemnity obligations set forth in the PS Agreement, provided that Indemnifying Party shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnifying Party is prejudiced by any such failure to provide prompt notice; (ii) the Indemnifying Party shall be given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnifying Party may not make any admissions on the Indemnified Party’s behalf or settle any such claim without Indemnified Party’s approval unless the settlement unconditionally releases the Indemnified Party of all liability and except that the Indemnified Party may participate in the defense of the claim at its sole cost and expense); and (iii) the Indemnified Party must reasonably assist the Indemnifying Party in all necessary respects in connection with the defense of the claim at the Indemnifying Party’s expense.
c. Exclusive Remedy. This Section 13 (Indemnification) states the Indemnifying Party’s sole liability and the Indemnified Party’s exclusive remedy with respect to any type of third-party claim or action. This Section does not apply to any direct claims between the Parties.
a. Governing Law; Jurisdiction and Venue. The PS Agreement and all matters in connection with the PS Agreement will be governed by laws of the state of New York, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. For any claims or causes of action arising out of these Professional Services Terms, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in New York County, New York.
b. Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party violates its obligations under the PS Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
c. Force Majeure. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this section must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate the PS Agreement. Such termination will not result in any liability by either Party, except that, if Customer terminates the PS Agreement for Avalara’s failure, Avalara shall refund Customer a pro-rata refund of any prepaid fees applicable to unused Professional Services.
d. Notices. Avalara shall communicate announcements of general interest relating to Avalara’s products or services by email or by posting on its website or on Customer’s console for the applicable Avalara product or service. Avalara shall provide Customer with legal notices in writing by email, mail, or courier to the address provided by Customer. Customer shall immediately notify Avalara if Customer’s address for notice changes. Except as otherwise specified in the PS Agreement, all notices to Avalara must be in writing, with account notices sent to firstname.lastname@example.org and legal notices sent to email@example.com.
e. Successors and Assigns. Either Party may assign the PS Agreement without the other Party’s consent to an entity that acquires all or substantially all of the assets of or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the PS Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor of the non-assigning Party or to an entity operating a business in violation of applicable law or regulation. Except as provided above, neither Party may assign its rights or obligations under the PS Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the PS Agreement will be null and void. The PS Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
f. Severability. If any provision of the PS Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the PS Agreement will remain in full force and effect.
g. Waiver. No waiver of any provision of the PS Agreement, nor any consent by a Party to the breach of or departure from any provision of the PS Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver or consent will be effective only in the specific instance and for the purpose for which given.
15. Entire Agreement. The PS Agreement constitutes the entire agreement between the Parties with respect to the provision of the Professional Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral with respect thereto. Any other products or services provided by Avalara to Customer will be governed by a separate agreement specific to those products or services. No modification or amendment of any provision of the PS Agreement will be effective unless in writing and signed by both Parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation, except a Services Schedule, shall be apply, and all such terms or conditions will be null and void..