Schedule A - Minimum Required Terms
“Minimum Required Terms” refers to the following terms:
Avalara Services. The Avalara services, documentation and related technology that Company Customer accesses or uses pursuant to this agreement (collectively, the “Avalara Technology”) is proprietary technology of Avalara, Inc., a Washington, U.S.A., corporation, including its affiliates, suppliers and licensors (collectively “Avalara”). The Avalara Technology is licensed, not sold, to Company Customer. Avalara retains all ownership rights in and to the Avalara Technology.
Restrictions on Use. Company Customer shall not (i) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the Avalara Technology or any component thereof, except as specifically permitted by law for interoperability; (ii) modify, translate or prepare derivative works of the Avalara Technology or any component thereof; (iii) copy or reproduce the Avalara Technology or any component thereof, other than as necessary for its internal, authorized use of the Avalara Technology; (iv) use the Avalara Technology in any manner that infringes the intellectual property or other rights of Avalara or another party; (v) distribute, redistribute, sublicense, assign, share, sell, rent, lease, or grant a security interest in the Avalara Technology; (vi) interfere or attempt to interfere in any manner with the functionality or proper working of the Avalara Technology; (vii) publish the Avalara Technology or any part of the Avalara Technology for others to copy; (viii) use the Avalara Technology for commercial hosting services; (ix) attempt to avoid or circumvent the security measures set up to protect the Avalara Technology from unauthorized use; (x) make the Avalara Technology available to anyone other than its authorized users; (xi) use the Avalara Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to store or transmit material in violation of third-party privacy rights; (xii) use the Avalara Technology to store or transmit any malware; (xiii) interfere with or disrupt the integrity or performance of the Avalara Technology or third-party data contained therein; (xiv) attempt to gain unauthorized access to the Avalara Technology or their related systems or networks; and (xv) access the Avalara Technology to build a competitive product or service or to copy any features, functions or graphics of the Avalara Technology.
Exclusion of Implied Warranties. As between Company Customer and Avalara, to the maximum extent permitted by applicable law, Avalara makes the Avalara Technology available to Company Customer AS IS, WITHOUT WARRANTY OF ANY KIND. AVALARA HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. The foregoing shall not be interpreted to limit any warranties that Company provides on its own behalf directly to Company Customers.
Exclusion of Certain Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVALARA BE LIABLE TO COMPANY CUSTOMERS OR ANY OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, GOODWILL, USE OR OTHER LOSSES) ARISING OUT OF, OR RELATED TO, THE AVALARA TECHNOLOGY OR THIS AGREEMENT, EVEN IF AVALARA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Avalara’s entire liability, if any, to Company Customer under this [agreement between Company and each Company Customer] or with respect to the Avalara Technology exceed the fees paid by Company Customer to Company for Company Customer’s use of the Avalara Technology in the three (3) months immediately preceding Company Customer’s first assertion of its claim, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
Third Party Beneficiary Rights. Avalara is a direct and intended third party beneficiary of all of Company’s rights and Company Customer’s obligations under the Minimum Required Terms and the [agreement between Company and each Company Customer], and may directly enforce or exercise such obligations or rights against Company Customer.
Export Compliance. Company Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Avalara Technology. Without limiting the foregoing, (i) Company Customer represents that neither it nor any of its authorized users is named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Company Customer shall not permit any user to access or use the Avalara Technology in violation of any U.S. export embargo, prohibition or restriction.
Governing Law and Venue. As between Company Customer and Avalara, the Minimum Required Terms and this [agreement between Company and each Company Customer], the Company agrees that it's [agreement between Company and each Company Customer] shall include the following text: “For all matters concerning or related to sales taxes involving Avalara or any product or Service offered by Avalara, whether exposed directly to the end user or handled without the users’ knowledge, the governing law shall be New York state law and controlling United States federal law, without regard to the choice or conflicts of law provisions of such jurisdictions and any jurisdiction. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or in connection with the Minimum Required Terms and this [agreement between Company and each Company Customer] or the products or Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington USA, and each party waives any claim that a more convenient forum can be found.
Governing Language. As between Company Customer and Avalara: The governing language for the Minimum Required Terms and this [agreement between Company and each Company Customer], for the transactions contemplated hereby, for any notices, instruments or other documents or media transmitted or delivered hereunder, and for the negotiation and/or resolution of any dispute or other matter between the parties, shall be the English language. In the event of any conflict between the provisions of any instrument, document, or other media and an English version thereof, the provisions of the English version shall prevail. Company Customer hereby waives all and any rights it may have under any law in any country or portion thereof to have the [agreement between Company and each Company Customer] written in any language other than English.
Severability. If any provision of the Minimum Required Terms and this [agreement between Company and each Company Customer] is determined to be invalid or unenforceable in any relevant jurisdiction, then to the fullest extent permitted by law: (i) it will be deemed modified to the extent necessary to make it enforceable in that jurisdiction and consistent with the original intent of the parties; (ii) the affected provision will remain in full force and effect; and (iii) all other provisions of the Minimum Required Terms and this [agreement between Company and each Company Customer] will remain in full force and effect.
Entire Agreement. The Minimum Required Terms and this [agreement between Company and each Company Customer] constitutes the entire agreement between the parties concerning the Avalara Technology, and supersedes all prior and contemporaneous agreements or communications, representations, inducements, understandings, promises or agreements, written, oral or by another form of communication, between the parties. No modification, amendment or waiver of any provision of the Minimum Required Terms and this [agreement between Company and each Company Customer] shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
