Avalara Professional Services Terms and Conditions
Effective as of February 20, 2017
The following Avalara Professional Services Terms and Conditions (“Professional Services Terms”) govern the delivery of the consulting, implementation, and other professional services (the “Professional Services”) provided by Avalara, Inc. (“Avalara”) to the 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 provided under these Professional Services Terms 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 (a) configuration, implementation, training, or other consultation related to an Avalara product or service that Customer has received rights to use under a separate agreement, or (b) other consulting services related to Customer’s transaction 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 govern the applicable Professional Services.
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 and local sales, use, excise, value added, or other taxes due on the Professional Services, except for taxes based on Avalara’s income. 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 expenses incurred by Avalara in the course of performing the Professional Services, including but not limited to travel expenses and materials.
3. Term and Termination. These Professional Services Terms will remain in effect from the effective date specified in the first executed Services Schedule through the completion or termination of all Services Schedules between the Parties (the “Term”). Each Services Schedule is effective on the effective date specified in the applicable Services Schedule (“Services Effective Date”) and expires on the date that the Professional Services are completed (“Services Completion Date”). Either Party may terminate a Services Schedule upon written notice to the other Party if the other Party materially breaches the Services Schedule and fails to cure such breach within 30 days following receipt of notice describing the breach. Upon termination by Customer for Avalara’s material breach, Customer shall be liable only for payment for the Professional Services rendered through the termination date, and shall receive from Avalara a pro-rata refund of any unused, prepaid fees for Professional Services.
4. Provision of Professional Services. Avalara will perform Professional Services based on a schedule mutually agreed to by the Parties. Unless otherwise specified in the applicable Services Schedule, an order for Professional Services will expire unless the Professional Services are scheduled and delivered within 12 months from the date they were ordered, and Customer will not be entitled to receive a refund for any fees prepaid for such expired Professional Services. Avalara, in its sole discretion, may provide the Professional Services through a third-party representative. Unless otherwise agreed by Customer in writing, Avalara shall provide all equipment, supplies, and personnel necessary or appropriate to perform the Professional Services.Customer acknowledges that Avalara will not update its advice, recommendations or work product after the completion of the Professional Services (including but not limited to reflect for changes or modifications to applicable law and regulations, or to judicial and administrative interpretations thereof, or for subsequent events or transactions), unless Customer separately engages Avalara to do so in writing after such changes or modifications, interpretations, events, or transactions.
5. Access. Customer shall provide Avalara with access to 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 Professional Services hereunder. 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. Customer acknowledges and agrees that, in performing the Professional Services, Avalara is entitled to base its conclusions on and rely on the accuracy and completeness of the information, data, material, and assumptions that are furnished by or on behalf of Customer, without any independent investigation or verification. Inaccuracy or incompleteness of such data, material, information, or assumptions furnished to Avalara could have a material adverse effect on Avalara’s conclusions.
6. Intellectual Property Rights. Customer has and will retain sole and exclusive right, title, and interest in and to all Customer Confidential Information (as defined in Section 12 hereof) and 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 Avalara Confidential Information, Avalara products, Avalara services, Avalara documentation, and all Avalara technology, platforms, methodologies, processes, techniques, ideas, concepts, 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”). Avalara’s ownership rights do not extend to Customer Property embedded or incorporated in the Avalara Property. If Customer provides Avalara with any suggested improvements to the Avalara services, then 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.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, designs, tools, trade secrets, and know-how, and any modifications, improvements, or derivative works of the foregoing, resulting from providing 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 Customer may now have or in the future may have therein and thereto. 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 within 30 days after the applicable Services Completion 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, OR QUALITY OF SERVICE. AVALARA DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS OR REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE PROFESSIONAL SERVICES TERMS FROM COURSE OF DEALING OR USAGE OF TRADE.
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, investments, use of money or use of 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. Except for instances of gross negligence or willful misconduct, a Party’s aggregate liability will not 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 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. Each Party agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such Party. Customer agrees that without these limitations the fee 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 Advice. These Professional Services Terms do 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 tax or legal advice, including legal opinions, tax opinions, or tax management advice specific to the facts and circumstances of Customer’s business. Customer shall conduct due diligence and seek 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 provided under these Professional Services Terms, 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 may have access to Confidential Information (as defined below). 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 designated by a Party as confidential, or given the circumstances, that 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. Confidential Information includes, without limitation, with respect to Avalara, 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, financial information, forecasts, inventions, know-how, methods, market analysis, pricing, products, 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) 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 as otherwise permitted by the Terms. The receiving Party may disclose Confidential Information to an employee, advisor, consultant, agent or representative (“Representatives”) on the condition that the receiving Party: (i) ensures that such Representatives are bound by binding obligations of confidentiality and restricted use that are as substantially protective as these Terms; and (ii) accepts full responsibility for its Representatives’ disclosure and use of the Confidential Information. 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 of a similar nature and shall not reverse engineer, decompile or disassemble any Confidential Information.
13. Indemnification. Each Party (the “Indemnifying Party”) will indemnify and defend the other Party (the “Indemnified Party”) against any Losses and Litigation Expenses resulting from a third-party claim, action, investigation, or proceeding based on, arising out of, or alleging (1) that the use of technology or information provided by the Indemnifying Party under these Professional Services Terms infringes an issued patent, copyright, trademark, or other intellectual property right of such third party, or (2) the Indemnifying Party’s violation of applicable law. “Loss” means any liability, loss, claim, 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), cost and expense, interest, award, judgment, damages (including punitive damages), fines, fees, penalties, or other charges, other than a Litigation Expense. “Litigation Expense” means filing fees and court costs, witness fees, costs of investigating and defending third party claims, and reasonable attorneys’ and other professionals’ fees, and any other fees.
14. Governing Law; Jurisdiction and Venue.These Professional Services Terms 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. 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 the following locations: (i) if Customer is the plaintiff, in King County, Washington, and (ii) if Avalara is the plaintiff, in the applicable jurisdiction of defendant’s corporate headquarters or principal place of business in the United States, or if defendant does not have a principal place of business in the United States, in New York County, New York.
15. Entire Agreement. These Professional Services Terms, together with all applicable Services Schedules executed by the Parties, constitute the entire agreement between the Parties for the provision of the Professional Services, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter thereof. 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, amendment or waiver of any provision of these Professional Services Terms will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. 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 incorporated into or form any part of these Professional Services Terms, and all such terms or conditions will be null and void. If any provision of these Professional Services Terms is held to be unenforceable for any reason, such provision should be reformed to the extent necessary to make it enforceable, consistent with the original intent underlying such provision, and the remaining provisions of these Professional Services Terms shall remain in full force and effect.