Version: August 4, 2022
These Terms and Conditions for VAT Services (these “Terms”) constitute a binding agreement between Avalara Europe Ltd. (“Avalara”) and the person or entity who sells products or services through an online e-commerce marketplace (“Marketplace”) and elects to purchase or subscribe (“Merchant” and, together with Avalara, “Parties”) for access to and use of VAT Services (as defined below). By accessing, purchasing or using VAT Services, Merchant agrees to be bound by these Terms and all terms or documents incorporated by reference.
Appendix A – Information and Documents Required per Transaction is part of these Terms.
“Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple Avalara customers (including Merchant Data) 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), such that data about a specific Merchant is not discernible. Aggregate Data does not include any personal information relating to Merchant, Merchant’s clients, authorized users or customers, or other information that could reasonably identify or relate to a natural person.
“Affiliate” of a Party means an entity that controls, is controlled by, or is under common control with that Party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
“Content” means all material relating to the VAT Services, including information, data, software, photographs, graphs, videos, text, graphics, music, sounds, compilations, and any other content owned by Avalara or its licensors, excluding Merchant Data.
“EU” means the European Union.
“Fiscal Representation Services” means the service where Avalara acts as Merchant’s tax representative within the meaning of Article 204 and others of Directive 2006/112/EC in the Selected Countries purchased by Merchant, described in Section 2.
“Merchant Data” means any data, reports and information provided by Merchant, Marketplace or any other third party instructed by Merchant to supply data for the provision of the VAT Services as well as data, reports and information created or generated by Avalara on behalf of Merchant as part of the VAT Services.
“Order Document” means a sales order or other document or online workflow used to purchase VAT Services from Avalara.
“Payment Services” means (i) within the EU, any service relating to payment services, including those 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 service relating to money remittance, money transmission, issuing payment instruments, acquiring or executing payment transactions, or payment initiation services.
“Selected Country” means a country where Avalara is able to provide certain VAT Services, and Merchant has selected that country on Marketplace for the provision of VAT Services.
“Service Fees” means the then-applicable fees for the elements of the VAT Services set out on Marketplace or as otherwise notified to Merchant by Avalara from time to time.
“VAT” means, within the EU, such value added tax as levied in accordance with EU Directive 2006/112/EC, and outside the EU, any tax levied by reference to added value, sales and/or consumption.
“VAT Compliance Services” means the VAT registration and filing of indirect tax returns and related services described in Section 2.2.
“VAT Services” means the VAT Compliance Services and the Fiscal Representation Services as ordered by Merchant in a Selected Country under these Terms.
“VAT Obligations” means, for a Selected Country, payment or other financial obligations related to VAT, applications for VAT refund amounts, penalties and interest on VAT payments that are overdue for any reason, and similar financial obligations or liabilities for that Selected Country.
2.1 Avalara grants Merchant a nonexclusive, non-transferable right to access and use the VAT Services during the Term, solely for Merchant’s internal business operations. By purchasing access to the VAT Services or otherwise using the VAT Services, Merchant agrees to use the Services in compliance with these Terms and any documentation or policies available at https://help.avalara.com (or a successor site that Avalara may designate from time to time) that are applicable to the VAT Services. Merchant is not permitted to access VAT Services on behalf of its Affiliate unless such Affiliate separately agrees to be bound by the Terms and Avalara separately agrees to provide VAT Services to such Affiliate. Non-EU-established Merchants receiving VAT Compliance Services in a country where fiscal representation is required agree to automatically and exclusively use the Fiscal Representation Services if the Fiscal Representation Services are offered in such country.
2.2 VAT Compliance Services. Avalara provides the following VAT Compliance Services: acting on behalf of Merchant in respect of VAT registration and filing of indirect tax returns and related services. In the Federal Republic of Germany, Avalara provides technology services to enable Merchant or any tax agent of Merchant to prepare and submit VAT registrations and to timely prepare and file indirect tax returns and related services in the format required by tax authorities.
2.3 Fiscal Representation Services. Avalara may provide the following Fiscal Representative Services:
(a) acting on behalf of Merchant in respect of VAT Obligations ensuing from applicable VAT regulations in the Selected Country;(b) completing and processing supporting documents, including documents related to termination of the Fiscal Representation Services as applicable;
(c) assisting Merchant to comply with local VAT requirements related to fiscal representation in the Selected Countries as Avalara determines to be appropriate; and
(d) facilitating the provision of Payment Services by a duly licensed third-party payment service provider (“Third-Party PSP”) to collect and remit VAT Obligations due by Merchant to tax authorities. Payment Services are further detailed in Section 3.
3.1 In the event that Fiscal Representation Services are required, Avalara may elect to use a Third-Party PSP, duly licensed in the relevant jurisdiction(s), to provide Payment Services in accordance with applicable laws. Third-Party PSP may require Merchant to enter into a separate agreement for the provision of Payment Services.
3.2 Merchant shall pay the VAT Obligations to Third-Party PSP or the applicable tax authority in accordance with Avalara’s instructions.
3.3 Avalara, in its sole discretion, may direct Merchant to apply overpayments to its future VAT Obligations. Any amounts of underpayments will be immediately due and payable by Merchant and shall be paid to Third-Party PSP, Avalara or to the applicable tax authority, as directed by Avalara.
3.4 In connection with collection and remittance activities through Third-Party PSP or Avalara, Merchant shall adhere and be subject to the following processes and requirements:
(a) Merchant will receive instructions from Avalara, Third-Party PSP, or Marketplace stating the amount of Merchant’s VAT Obligations and the date due to Avalara or Third-Party PSP to ensure timely payment;
(b) Merchant will timely fund the VAT Obligations in the currency instructed by Avalara by way of a credit transfer to Avalara or Third-Party PSP’s account, on or before the due date;
(c) If Avalara directs Merchant to fund Third-Party PSP account, Third-Party PSP will confirm to Avalara that the designated account contains an amount equal to the amount specified in Avalara’s instruction to Merchant described under Section 3.4(a); and
(d) Subject to applicable payment requirements and payment processes, Avalara or Third-Party PSP will process the VAT Obligations by (i) transferring the VAT Obligations to the bank account of each applicable tax authority, or (ii) arranging for the direct debit of this amount by each applicable tax authority.
3.5 In the event that Fiscal Representation Services are not required, Merchant shall be responsible to pay VAT Obligations directly to the applicable tax authority(ies) and shall be solely liable for non-payment or late payment of such VAT Obligations.
4.1 Avalara will engage any Avalara Affiliate or any third party, including Third-Party PSP, as subcontractor to perform certain obligations under these Terms. Avalara is responsible for its Affiliate’s compliance with and performance of these Terms when acting as agent or subcontractor, and Merchant shall bring any claims it may have solely against Avalara and not against such Affiliate. Merchant shall provide Affiliates of Avalara or third parties with any documentation or agreement required to permit them to perform the Fiscal Representation Services. This may include a power of attorney and an appointment letter in the format required in the Selected Country.
4.2 Avalara may, in its discretion, impose rules or limits for, or change, any aspect of VAT Services at any time.
4.3 If Avalara identifies any questions or ambiguities related to the application of VAT to Merchant’s activities, Avalara may apply the VAT rates Avalara determines to be appropriate in the filing of a VAT return or amendment of a VAT return previously filed and will notify Merchant of the same. If Merchant is required to report transactions or inventory transfers that occurred prior to Merchant’s appointment of Avalara under these Terms, or after termination of the agreement with Avalara, Avalara may fulfil such backfiling or post-termination filing services on behalf of Merchant, as an ancillary service.
4.4 Avalara may consult or negotiate with the tax authorities in any Selected Country concerning tax levies, or other costs and matters arising under these Terms. Avalara will invoice Merchant for such consultation and negotiation services at its then-current standard rates. Avalara shall, after consultation with Merchant, be entitled to engage third parties to handle claims and negotiations with the applicable tax authorities in any Selected Country, all of which will be at the additional expense and risk of Merchant.
4.5 Avalara may modify these Terms at any time upon 30 days’ notice. Avalara may change or modify these Terms at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the VAT Services (where this does not materially adversely affect Merchant’s use of the VAT Services); or (c) to restrict products or activities Avalara deems unsafe or inappropriate. Avalara will provide notice of modification by posting changes on Marketplace or by sending Merchant an email. Merchant’s continued use of the VAT Services after the effective date of any change to the Terms will constitute Merchant’s acceptance of that change. If changes are unacceptable to Merchant, Merchant shall cease using the Services and terminate the Agreement as provided under Section 9.1.
5.1 In addition to all other obligations specified in these Terms, Merchant shall with respect to VAT registration: provide all powers of attorney, information, and signatures necessary to submit VAT registrations, as determined by Avalara, and with respect to VAT filings: (i) provide necessary and timely transactional information in order for Avalara to assist Merchant in populating the transactional information into the relevant VAT filing forms required for Merchant to complete and submit VAT filings required under local statute, (ii) provide full access to supporting information, including original paper or electronic invoices in support of filings, (iii) provide all powers of attorney reasonably requested by Avalara, and (iv) carefully review all transactional information input into the VAT Compliance Services directly or imported from any other application, service, or site to ensure the accuracy and completeness of that data. Merchant authorizes Avalara to apply for filing credentials on Merchant’s behalf as necessary in the Selected Countries. Merchant shall also, within the timeframe designated by Avalara and/or Marketplace, carefully review all populated forms prior to filing to ensure the accuracy and completeness of the form. Ensuring that the transactional and other information is accurate and complete is solely Merchant’s obligation, and Avalara makes no warranty regarding such accuracy and completeness. If incorrect or incomplete information on a return causes submission of the return to fail, Avalara may in its discretion (a) not file the return or (b) file the return with the incorrect or incomplete information removed. Except as may be prohibited by a Selected Country, Merchant hereby approves each return for filing as of the return review deadline. After the return review deadline, Avalara will file the returns. For all Selected Countries requiring specific approval of the particular return to file, Merchant shall provide specific approval by the return approval deadline if Merchant wishes to file the return. Avalara shall have no liability for any fees, penalties, interest or other charges incurred as a result of a late, missed, or incomplete filing resulting from Merchant’s failure to provide timely approval or correct and complete information. If ancillary services are required to remediate late, missed, or incomplete filings other than due to Avalara’s fault, Avalara may charge Merchant at Avalara’s then-applicable rates. Merchant shall also ensure that the VAT Compliance Services are properly configured at all times for Merchant’s specific circumstances, and it is solely Merchant’s obligation to do so.
5.2 Merchant is prohibited from conducting any activities in a Selected Country, whether through Marketplace or otherwise, 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 not agreed to by Avalara. If at any time during the Term Merchant becomes aware of any such prohibited activities in any Selected Country that may require fiscal or tax representation, Merchant shall immediately notify Avalara in writing. Further, Merchant shall ensure that its systems are properly configured to ensure that all VAT Obligations in a Selected Country are managed correctly through the Fiscal Representation Services, and it is solely Merchant’s obligation to do so.
5.3 Under these Terms and as between the Parties, Merchant is solely liable and responsible for, and shall timely remit funds for, all of its VAT Obligations in a Selected Country, including the timely and correct remittance of any VAT Obligation due to any applicable tax authority in that Selected Country and any penalties and interest incurred in relation to any late VAT filing, payment or otherwise, except as covered by Avalara under Section 16.
5.4 Promptly upon Avalara’s request, Merchant shall provide Avalara with (a) proof of funding for any applicable VAT Obligation or other obligation, including for the period after termination of these Terms during which any tax authorities may impose tax assessments retroactively; or (b) security for Merchant’s VAT Obligations, or for any other payment obligations to Avalara, a tax authority, or any third party arising under these Terms. Avalara will determine the form and amount of security necessary in its discretion and may require security to be made in the form of one or more payments to Third-Party PSP pursuant to Section 3.4(a), or a first demand bank guarantee, in form and in amounts Avalara determines to be appropriate in its discretion. If requested by Avalara, Merchant shall provide Avalara with such additional security as Avalara deems appropriate in its discretion, taking into account Avalara’s potential liabilities. In the event that Merchant is required to provide a bank guarantee or other security, Avalara will not be obliged to provide the VAT Services until such bank guarantee or other security is provided.
5.5 During the Term, at Avalara’s request, Merchant shall deliver to Avalara a tax certificate from its resident country or each Selected Country confirming that Merchant complies with its VAT Obligations or a certificate of outstanding tax liabilities or any other similar type of certificate. Also upon Avalara’s request, Merchant shall 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. Merchant (i) shall ensure its invoices are compliant with the EU VAT Directive 2006/112/EC, as amended from time to time, (ii) provide VAT-compliant invoices to Avalara promptly upon request, and (iii) follow all compliance-related requirements specified by Avalara. Merchant shall 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 the Fiscal Representation Services. Merchant shall respond promptly, and no later than 7 days from the date of the request, to all information requests from Avalara related to the Fiscal Representation Services.
5.6 If Merchant fails under these Terms to (i) pay VAT Obligations in a Selected Country to Avalara or Third-Party PSP in whole or in part, or (ii) timely provide to Avalara the information or documentation required by Avalara to determine Merchant’s VAT Obligations in a Selected Country, Avalara may take such action as it deems appropriate with respect to Merchant’s local VAT requirements in such Selected Country, including reporting no VAT Obligations for a period (filing a “nil return”) or filing additional or supplementary VAT returns. Any such activities Avalara undertakes, and any related VAT Obligations that arise will be at Merchant’s expense and risk. Avalara will notify Merchant of any such actions.
5.7 Prior to acceptance of these Terms and at all times thereafter upon request, Merchant shall provide all information requested by Avalara (or, if applicable, a third-party subcontractor engaged by Avalara for this purpose (a “Screener”)) regarding Merchant’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”). Merchant expressly authorizes all such activities and shall provide additional information and otherwise cooperate with Avalara or the Screener in connection with the Background Screen. If Merchant provides any information related to its Background Screen directly to the Screener, Merchant expressly authorizes Avalara to receive, obtain copies of, transmit to its Affiliates and third parties, including Marketplace, for processing, and use such information and data from the Screener and any analyses, conclusions or assessments made by the Screener in connection with such Background Screen as Avalara determines to be appropriate. Avalara may, in its discretion, elect not to provide Merchant with or terminate the Fiscal Representation Services and related Services due to the results of the Background Screen or Merchant’s failure to timely provide the information requested by Avalara or the Screener for the Background Screen; provided that if Avalara elects not to provide or terminates the Fiscal Representation Services under this Section 5.7 other than for failure to provide documentation required for the Background Screen, Avalara will refund any prepaid unused subscription Service Fees related to the VAT Services (excluding any activation or other one-time fees).
5.8 At any time, in Avalara’s discretion and in accordance with applicable laws, and without notice to Merchant, Avalara may report any information related to Merchant’s use of VAT Services or its Background Screen process (including Merchant 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.
6.1 Merchant represents and warrants that none of Merchant, any of its Affiliates, nor any of their respective officers, directors, owners, employees, representatives or agents (the “Merchant Affiliated Parties”) is or has engaged in, or been charged with, 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. 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.
6.2 Merchant represents and warrants that it is not (i) established for VAT purposes or (ii) registered for VAT purposes in a Selected Country that requires fiscal or tax representation, or in the process of doing so, unless such establishment or registration is agreed to in writing by Avalara. Merchant will take all actions requested by Avalara to transition any prior VAT registrations to Avalara in order for Avalara to provide the Fiscal Representation Services in a Selected Country. Unless Merchant separately has notified Avalara to the contrary in writing prior to entering into these Terms, Merchant represents and warrants that it has no tax liability in each Selected Country that require fiscal or tax representation.
6.3 Unless Merchant notifies Avalara to the contrary in writing, Merchant represents and warrants that none of the Merchant 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. Merchant represents and warrants that none of the Merchant Affiliated Parties are under sanction, prohibition, or restriction from any Selected Countries, the United Nations, the EU, any other EU member states, Canada, or the United States.
6.4 Merchant represents and warrants that all information and documentation provided to Avalara under these Terms, including in relation to Payment Services and to fulfil its obligations under Section 5, are true, correct, and complete. Merchant’s representations and warranties in this Section 6 are deemed to be made continuously throughout the Term, and Merchant will immediately provide written notice in reasonable detail to Avalara at any time that this statement ceases to be true, correct, or complete during the Term.
7.1 Merchant shall use the Content solely for the uses specifically authorized for the VAT Services and Merchant will make no other use of it without Avalara's express written permission. Merchant shall not delete or alter any proprietary rights or attribution notices in the Content. Avalara does not grant Merchant a license, express or implied, to any Avalara intellectual property or the Content. To the extent a compilation of information provided by governmental agencies was created by Avalara, Avalara owns the rights to that specific compilation.
7.2 Merchant or its third-party data supplier is the owner of any Merchant Data. Merchant is the owner of any product of the VAT Services in its tangible form and becomes ultimately entitled to use the product of the VAT Services on payment of the applicable Service Fees. Avalara may retain, use, and disclose Merchant Data solely (i) to fulfil its obligations to Merchant under these Terms; (ii) to respond to support requests; (iii) for internal business purposes in order to maintain, evaluate, develop, and improve the VAT Services; (iv) to comply with applicable laws; or (v) to create Aggregate Data. Avalara may create, generate, and use Aggregate Data for any lawful purpose.
8.1 The term of the agreement between Avalara and Merchant (the “Term”) begins on the date that Merchant first purchases or subscribes to VAT Services and ends on the later of (a) last day of the final Transaction Period (as defined below) and (b) the completion of expiration of the last one-time VAT Service, unless terminated earlier in accordance with these Terms.
8.2 Subscription VAT Services will consist of one or more periods (the “Transaction Periods”), which are one-year periods during which Avalara will provide subscription VAT Services with respect to a Selected Country. Multiple Transaction Periods may run concurrently for multiple Selected Countries, with the beginning and end date of each Transaction Period for the applicable Selected Country dependent upon the later of (i) the date of receipt or transfer of Merchant’s VAT number and (ii) the date Merchant first subscribed for subscription VAT Services for the applicable Selected Country. For subscription VAT Services, Merchant’s initial obligation (the “Initial Merchant Term”) for any Selected Country for which it subscribes shall be one Transaction Period.
8.3 Unless terminated in accordance with these Terms, at the end of the then-current Initial Merchant Term or Renewal Merchant Term for a Selected Country, the applicable subscription will automatically renew for an additional Transaction Period unless inactive (each a “Renewal Merchant Term”). Merchant’s subscription for VAT Services for a Selected Country shall not renew if Merchant provides no information or documentation (except the initial information provided upon enrolment) required to facilitate VAT registration or any other component of VAT Services in that Selected Country before the end of the first Transaction Period for that Selected Country.
8.4 Avalara’s obligation to provide one-time VAT Services will expire twelve months after the fee for such VAT Service is incurred; provided that Avalara shall continue to perform a VAT Service if as of that date the relevant registration or transfer application has been submitted to, but not yet approved or accepted by, the taxing authority in the applicable Selected Country.
9.1 Either Party may terminate subscription VAT Services in a Selected Country for convenience with effect on the last date of the Transaction Period for the Selected Country upon written notice of not less than 30 days. These Terms will terminate automatically upon the later of (a) expiration or termination of Merchant’s final Transaction Period and (b) the completion of expiration of the last one-time VAT Service. If Avalara terminates VAT Services under this Section 9.1, it will refund any prepaid unused Service Fees related to the VAT Services (excluding any activation or other one-time fees).
9.2 Avalara may suspend VAT Services activities on behalf of Merchant at any time if Merchant has not fully paid its VAT Obligations or performed its other obligations under these Terms, or while any Merchant action or provision of information is outstanding after the relevant deadline, or if Avalara has reasonable grounds to believe that Merchant will not be able to comply with its obligations under these Terms. If Avalara invokes such right to suspend
operations or activities, Avalara will notify Merchant accordingly and may also notify affected third parties including Marketplace.
9.3 Merchant acknowledges that Avalara may, at its option, terminate the agreement and Merchant’s use of VAT Services for cause, for any or all Selected Countries at any time. Grounds for such termination include but are not limited to the following:
(a) Merchant suffers from an insolvency event, i.e. (a) upon the filing of any voluntary petition by Merchant under any bankruptcy laws; (b) upon the filing of any involuntary petition against Merchant under any bankruptcy laws that is not dismissed within sixty (60) days after filing; (c) upon any appointment of a receiver for all or a substantial portion of Merchant’s business or operations; (d) upon any assignment of all or substantially all the assets of Merchant for the benefit of creditors or (e) in the event of a change of control over Merchant.
(b) Merchant has violated any applicable laws, including in any Selected Country, prior to or during the Term;
(c) Merchant breaches these Terms, including by failing to timely provide required information or fund VAT Obligations or other payments;
(d) Merchant uses VAT Services in a manner that threatens the reputation or wellbeing of Avalara or its Affiliates or the integrity of VAT Services, or that impairs the use of VAT Services by other Merchants or other Avalara customers;
(e) if a power of attorney granted by Merchant to Avalara or any Affiliate of Avalara terminates, or any appointment of Avalara or any Affiliate of Avalara is terminated for any reason;
(f) if the relationship between Merchant and Marketplace terminates for any reason; or
(g) if the relationship between Avalara and Marketplace terminates for any reason.
9.4 The Fiscal Representation Services termination date will be the earlier date on which either Merchant’s access to the Fiscal Representation Services is terminated or the date on which the appropriate form(s) to terminate Avalara or any of its Affiliates as Merchant’s fiscal representative in all Selected Countries are filed with the respective tax authorities. Termination of the Fiscal Representation Services will automatically terminate any appointment or any power of attorney granted under these Terms.
9.5 Upon any termination by Avalara under Section 9.3, Avalara will not refund any amount of fees to Merchant. Avalara expressly disclaims liability for any damages Merchant incurs related to such termination. In the event of such termination, Avalara may terminate Merchant’s use of any other product or service offered by Avalara or any Affiliate immediately upon written notice.
9.6 If required under any applicable laws or requested by Avalara, Merchant will appoint another fiscal representative that assumes Avalara’s obligations under these Terms immediately following Avalara’s termination of Merchant’s subscription to the Fiscal Representation Services, or at any other time specified by Avalara in its discretion. During any period in which Merchant fails to comply with this obligation, Merchant shall continue to comply with its obligations to Avalara and will be liable for all resulting Losses (as defined below).
9.7 Following any termination Merchant remains subject to all obligations and liabilities, including VAT Obligations and other payment obligations and information requirements, arising out of or related to VAT Services prior to termination.
10.1 By purchasing access to or otherwise using VAT Services, Merchant agrees to pay the applicable Service Fees for VAT Services to Avalara or its appointed agent. Invoices or other Order Documents specifying the Service Fees may be issued and sent to Merchants by Avalara or an Avalara Affiliate or on behalf of Avalara or its Affiliates by Third-Party PSP or another service provider. Avalara or its Affiliate may invoice Merchant for the VAT Services provided under these Terms, and Merchant shall pay all invoices to the Avalara entity that issued the invoice. If Avalara determines that Merchant fails or may fail to meet any of its obligations under these Terms, Avalara may offset those obligations against any refunds from any tax authorities in any Selected Country of whatever nature accruing to Merchant in order to meet those obligations.
10.2 Unless otherwise expressly set forth in an invoice or other Order Document, all Service Fees are exclusive of any VAT or other tax obligations applicable to the provision of VAT Services, which constitute the additional payment obligations of Merchant. Merchant authorizes Third-Party PSP to collect Service Fees and pay such amounts to Avalara or its Affiliate, provided that Merchant may also pay such amounts to Avalara or its invoicing Affiliate directly. Any Service Fees collected by Third-Party PSP may be deducted from amounts that Third-Party PSP holds on behalf of Merchant. Fees for other ancillary services, if any, will be charged at Avalara’s then-applicable rates as set forth on the applicable Order Document.
10.3 Service Fees are subject to increases to the level of then-current standard pricing, which with respect to a Selected Country will become effective for subscription VAT Services on the first day of the next Renewal Merchant Term for that Selected Country. Avalara will notify Merchant of any increase at least 60 days prior to a Renewal Merchant Term. Such notice may be in the form of an invoice or any other form of notice used by Avalara to communicate with Merchant. If Merchant objects to the increase, then Merchant may elect to not renew the applicable subscription in accordance with Section 9.1.
11.1 Merchant authorizes Avalara to share with Marketplace and with any other tax agent of Merchant any information Avalara holds about or from Merchant, including any information generated by the VAT Services. Merchant further agrees that Merchant’s personal data may be transferred outside the EEA, subject to the Avalara Data Transfer Addendum, located at https://www.avalara.com/DTA.
11.2 The VAT Services require Merchant to provide certain information using Merchant’s account, and Merchant must provide current, complete, and accurate account information as requested. Merchant represents and warrants that it has the right to share all information with Avalara that Avalara receives under the Terms. Merchant is solely responsible for all activities that occur under its account using Merchant’s access information, whether authorized or not. Avalara will not be liable for any loss or damages that Merchant may incur as a result of the use by any party, authorized or otherwise, of Merchant’s access information. Merchant shall notify Avalara immediately of any unauthorized use of the account or any other breach of security.
11.3 Avalara will implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Merchant’s information. Avalara will implement processes and maintain procedures designed to comply with applicable laws and shall facilitate Merchant’s data security obligations with respect to personal information in Avalara’s possession or control to the extent that Merchant is required to comply with the following: (i) the U.K. Data Protection Act of 2018; (ii) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) and any applicable laws enacted by an EU member state implementing the requirements of the regulation; and (iii) any amendments and successors to the aforementioned privacy laws, or any newly enacted applicable laws regarding privacy.
11.4 The Terms are Merchant’s instructions for processing Merchant’s personal data, and Avalara will not process Merchant’s personal data for any other purpose. The Avalara Data Processing and Transfer Addendum located at https://www.avalara.com/GDPR-DPA is incorporated by reference except that the Avalara Service Terms and Conditions are incorporated only as needed to import defined terms. Avalara may use subcontractors to facilitate its obligations under the Terms, provided that such subcontractors agree to provisions at least as stringent as these Terms.
12.1 Merchant shall not use the VAT Services for any purpose that is unlawful or prohibited by these Terms. This prohibition includes, but is not limited to, using the VAT Services 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 VAT Services. Merchant shall not attempt to gain unauthorized access to the VAT Services, other accounts, computer systems, or networks connected to Avalara through hacking, password mining, or any other means. Merchant shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the VAT Services. Merchant shall not use the VAT Services to, nor permit any third party to: (a) promote Merchant’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 Merchant’s and without permission of the intellectual property rights owner or (d) impersonate someone else or falsely represent Merchant’s identity or qualification, or to breach another’s privacy. Merchant shall use the VAT Services in compliance with applicable law, including laws regarding privacy and data use.
13.1 Merchant acknowledges that Avalara does not provide professional tax opinions or tax management advice specific to the facts and circumstances of Merchant’s business when rendering the VAT Services and that Merchant’s use of the VAT Services or the Content does not create any fiduciary obligations on the part of Avalara to Merchant. Although Avalara strives to ensure that data and information contained in the VAT Services 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, Merchant agrees that it uses and relies upon the Content and VAT Services at its own risk and acknowledges that Avalara cannot guarantee that any data and information contained in the VAT Services is accurate or current. In addition, due to rapidly changing tax rates and regulations that require interpretation by qualified tax professionals, Merchant bears full responsibility to determine the applicability of the output generated by the VAT Services and to confirm its accuracy. Merchant shall conduct due diligence and seek the assistance of qualified tax counsel or accounting professionals on matters requiring professional advice.
14.1 VAT SERVICES AND THE CONTENT ARE MADE AVAILABLE TO MERCHANT ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AVALARA DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. AVALARA SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT (A) ANY GOVERNMENTAL INFORMATION (INCLUDING WITHOUT LIMITATION INFORMATION REGARDING TAX RATES OR THE APPLICABILITY OF CERTAIN TAXES), OR (B) ANY INFORMATION IMPORTED FROM ANY OTHER APPLICATION, SITE, OR SERVICE, IS ACCURATE, COMPLETE, CURRENT, OR APPLICABLE TO MERCHANT OR ITS BUSINESS.
14.2 NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS LIMITING EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FOR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. AVALARA SHALL NOT BE RESPONSIBLE FOR ANY UNAVAILABILITY OF THE MARKETPLACE WEBSITE OR OTHER SERVICES PROVIDED BY MARKETPLACE. THE REMEDIES DESCRIBED IN THIS SECTION ARE MERCHANT’S ONLY REMEDIES FOR ANY BREACH OF WARRANTY OR ANY OTHER CLAIM. AVALARA'S TOTAL LIABILITY ARISING OUT OF VAT SERVICES FOR A SELECTED COUNTRY, WHETHER ON WARRANTIES, CLAIM OF NEGLIGENCE, OR OTHERWISE, SHALL NOT IN ANY CASE EXCEED THE AMOUNT PAID BY MERCHANT TO USE VAT SERVICES FOR THAT SELECTED COUNTRY DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM IN THAT SELECTED COUNTRY.
14.3 SAVE AS OTHERWISE STATED IN SECTION 14.2, AVALARA SHALL NOT BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, LOST PROFITS OR SPECIAL DAMAGES, EVEN IF MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE. FURTHER, EXCEPT UNDER SECTION 16, 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 MERCHANT’S FAILURE TO PROVIDE ANY REQUIRED INFORMATION OR TIMELY APPROVAL OF A RETURN, DUE TO THE TIMING OR REJECTION OF ANY OPTING LETTER SEEKING TO WAIVE THE DISTANCE SELLING THRESHOLD, OR DUE TO LATE OR MISSED VAT OBLIGATIONS OR OTHER PAYMENT OWED BY MERCHANT. EXCEPT AS PROHIBITED BY APPLICABLE LAWS, MERCHANT MAY NOT BRING ANY CLAIM RELATING TO THESE TERMS OR VAT SERVICES MORE THAN TWO YEARS AFTER THE EVENTS GIVING RISE TO THE CLAIM OCCURRED.
15.1 Subject to the laws of each Selected Country, Avalara and Merchant may have joint and several liability to that Selected Country’s tax authorities for Merchant’s fulfilment of VAT Obligations. If Avalara incurs any liability, or is compelled to pay any amount related to Merchant’s actions, omissions, or obligations, Merchant 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 of or relate to (i) any VAT Obligations except those Avalara pays in accordance with Section 16, (ii) any third-party claim or action arising out of or related to Merchant’s actions or omissions or the provision of the VAT Services to Merchant under these Terms (including any claims or actions in connection with Avalara’s termination of Merchant under these Terms), except to the extent such claim or action results directly from the gross negligence or intentional misconduct of Avalara, or (iii) breach of any of Merchant’s representations or warranties, or any failure or omission of Merchant to meet or perform any of its covenants, undertakings or obligations pursuant to the Terms or to the VAT Services, 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.
15.2 If any Avalara Indemnitee incurs any liability in connection with the VAT Obligations or Merchant’s actions or omissions hereunder, that Avalara Indemnitee shall have full recourse against Merchant 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 or may be due from Merchant to any Avalara Indemnitee under these 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 Avalara or Third-Party PSP may hold on behalf of Merchant, or that may be due from Avalara to Merchant under these Terms or under any other current or future arrangement Merchant may enter into with Avalara or any of its Affiliates. Each Avalara Indemnitee is an intended third-party beneficiary under these Terms.
16.1 Avalara provides a guarantee of the timeliness of returns prepared and filed and VAT Obligations remitted through the VAT Compliance Services (the “Returns Guarantee”) under the following terms:
(a) If Merchant receives a notice of late filing, failure to file, or a failure to remit VAT Obligations that results in liability for penalties or interest due solely to Avalara’s failure to timely prepare and file a return it was obligated to file or to timely remit VAT Obligations it was obligated to remit (an “Avalara Error”), Avalara will pay Merchant the lesser of either: (i) the amount of the penalties and interest that directly result from the Avalara Error, as specified in the final assessment notice received from the applicable Selected Country, or (ii) the amount of the VAT Compliance Services fees for the applicable Selected Country paid by Merchant during the 365 days preceding the final assessment of penalties or interest for the Avalara Error (calculated as described in subsection (c) below).
(b) The following conditions apply to the Returns Guarantee:
(i) Merchant must have met all of its obligations under these Terms, including providing and maintaining accurate, complete, and current information and data, timely providing all VAT Obligations, and timely paying Service Fees. To the extent the Avalara Error was caused by Merchant’s failure to perform any of the obligations in these Terms, the Returns Guarantee will not apply.
(ii) Merchant must not have requested changes to Merchant’s return after the return review deadline.
(iii) Merchant must promptly forward any notices and relevant information from the Selected Country within 10 days of the date of the notice.
(iv) Merchant must assist Avalara in challenging the Selected Country’s findings if Avalara deems it appropriate in Avalara’s sole discretion.
(v) Merchant must assist Avalara’s efforts to abate or reduce the amount of penalties or interest imposed by the Selected Country.
(c) For purposes of calculating the amount of the VAT Compliance Service fees paid that are eligible for the Returns Guarantee payment, the amount will be the fees actually paid by (or on behalf of) Merchant for VAT Compliance Services in the Selected Country, and the time period will be the 365 days preceding the final assessment of penalties or interest after all appeals and abatement options have been exhausted. For clarify, the parties acknowledge that for purposes of this section, VAT Compliance Service fees do not include any one-time fees.
(d) In the event that (i) Merchant ultimately settles with the Selected Country for less than the full amount claimed by that Selected Country, (ii) the audit implicates other issues in addition to the alleged Avalara Error, and (iii) the settlement does not specifically apportion the settlement amounts between the audit issues, the amount to be paid by Avalara under this Returns Guarantee will be the percentage of the settlement amount equal to the percentage of the entire settled claim (as such claim existed at the time of settlement) related to the alleged Avalara Error.
(e) Avalara will make the Returns Guarantee payment within 60 days after the date that Merchant receives the final assessment notice from the applicable Selected Country, after all administrative appeals are exhausted. Avalara may also, in its sole discretion, make the payment at an earlier date, in which case Merchant’s obligations to continue to assist Avalara in contesting the Avalara Error will cease on the date of the payment.
Merchant must have a current VAT Compliance Service subscription in good standing to be eligible to receive payment under this Returns Guarantee.
17.1 Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English. The governing law of the Agreement shall be the substantive law of England and Wales.
18.2 Merchant may not assign these Terms without the prior written consent of Avalara. Avalara may assign all or any part of these Terms to any other party upon notice to Merchant.
18.3 If any provision of these Terms is held to be invalid, such invalidity will not affect the validity of the remaining provisions. The failure of either Avalara or Merchant to enforce any provision of these Terms will not constitutes a waiver of such Party’s rights to subsequently enforce such provision. Subject to the other provisions of these Terms, each of the remedies specified in these Terms are in addition to, and without limitation of any other remedies that may be available at law, in equity, under contract (including these Terms) or otherwise.
18.4 These Terms do not create a partnership, joint venture, agency, or fiduciary relationship between the Parties.
18.5 Any reference in these terms to the “discretion” of Avalara means the “sole and absolute discretion” of Avalara.
18.6 All provisions that by their nature should survive termination of these Terms will do so (including, by way of example and not limitation, payment and indemnification obligations).
18.7 Any translation of these Terms in any language other than English is provided for information purposes only. In the event of interpretation differences, the English language version of these Terms shall prevail.
18.8 These Terms, along with the applicable invoice, sales order, or other ordering documentation for the VAT Services purchased, constitute the entire agreement and understanding between Avalara and Merchant with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect to the subject matter of these Terms.
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 the applicable 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. Merchant 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 the Fiscal Representation Services, Merchant shall continue to have the obligation, pursuant to Section 9, for the period during which the authorities may impose tax assessments retroactively, to cooperate in every way and if so required, to provide all documents, information, and data concerning the activities carried out under these Terms. The following information, at a minimum, is required:
Description of any transactions for which Avalara is to act as fiscal representative for Merchant in a Selected Country pursuant to these Terms.