TaxValet Services Agreement
This TaxValet Services Agreement is made between Permitted, LLC, a Colorado company dba TaxValet (“TaxValet”) and you, or, if you represent an entity or other organization, that entity or organization (in either case, “Client”) as listed in the signature line of this Agreement or as stated within your Client account.
TaxValet provides certain Services (defined below) and is willing to provide Client with access to and use of the Services solely under the terms of this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I AGREE” OR BY ELECTRONICALLY SIGNING AND ACCESSING OR USING THE SERVICES CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONTAINS ARBITRATION PROVISIONS.
Terms used in this Agreement will have the definitions given below or as otherwise defined in the Agreement.
“Additional Services” any additional paid services offered by TaxValet that are not described in “Exhibit B – Services” or “Exhibit C – Registration Services”. Any Additional Services shall be executed via the Additional Services Order Form.
“Agreement” means this agreement along with any attached exhibits and additional policies as provided by TaxValet.
“Client Data” means any and all data, documents, logins, information, submissions, and content submitted by Client to TaxValet for the purposes of undertaking the Services.
“Confirmation” a written communication that confirms TaxValet’s agreement to provide the Services or Additional Services contemplated for any specific Client Order Form.
“Documents” means any and all filings, submissions, documents, forms, or other materials prepared, processed, or submitted on behalf of Client.
“Effective Date” means the date that the Parties have entered into this Agreement.
“Filings” means all government filings that TaxValet assist Client in preparing.
“Initial Information” means any information, communications, or documents, including but not limited to the Proposal, on-boarding, or initial consultations/analysis provided to Client by TaxValet prior to a receipt of Confirmation from TaxValet.
“Laws” means all relevant United States federal, state, and local laws and regulations.
“Party” or “Parties” shall mean Client or TaxValet in the singular and collectively Client and TaxValet in the plural.
“Payment(s)” means all payments made to any Recipients paid through the Services by either Client or TaxValet (on Client’s behalf), Payments may include all taxes, remittances, registration fees, license fees, and other charges and payments.
“Payment Account” means Client’s bank accounts and debit/credit cards to be used for making Payments.
“Proposal” means the document titled proposal that is provided to the Client
“Order Form” means any order from that is attached to this Agreement.
“Recipient” means any entity receiving a Payment or Filing.
“Services” means the specific services offered by TaxValet as stated within the Proposal and more fully described in Exhibit B – Services and/or Exhibit C – Registration Services and as confirmed within an Order Form.
“Third Party Services” means all other services or functionality developed, provided, or maintained by third-party service providers that are unaffiliated with TaxValet.
Subject to the terms and conditions of this Agreement, during the term of this Agreement TaxValet agrees to use commercially reasonable efforts to provide the Services to Client. Where TaxValet provides any Initial Information, such Initial Information is made without warranty or guarantee and is offered solely for informational purposes. The Initial Information is not contractually binding and TaxValet assumes no liability for Client’s use of such Initial Information. All Services provided are subject to the additional terms, conditions, and restrictions as stated within this Agreement and the Exhibits. Only Services paid for by Client and listed in the Order Form are considered Services. Where Client requires any Additional Services, such other services are different in nature and may include tax or financial advice. Where Client requires any Additional Services, the parties shall execute an Additional Services Order Form.
3. Services Disclaimer
The Filing Services offered by TaxValet are clerical and preparatory in nature and are intended only to assist Client in preparing, filing, remitting, and paying for any sales tax. WHERE YOU REQUIRE ANY TAX OR FINANCIAL ADVICE AND WHERE TAXVALET IS WILLING TO PROVIDE SUCH ADVICE, AN ADDITIONAL SERVICES ORDER FORM MUST BE EXECUTED BETWEEN THE PARTIES. NO LEGAL ADVICE OR TAX OPINION IS GIVEN THROUGH THE FILING SERVICES OFFERED AS DESCRIBED IN THE PROPOSAL OR EXHIBIT B AND C. ALL INFORMATION PROVIDED DURING THE COURSE OF THE SERVICES, WITHIN THE PROPOSAL AND EXHIBIT B AND C, BY TAXVALET IS GENERAL IN NATURE AND INTENDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. PLEASE BE AWARE THAT ALL INFORMATION IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. Where Client requests professional advice or an opinion from TaxValet, and where TaxValet is willing to provide such professional advice or opinion, Client shall execute an Order Form for Additional Services. Where Client declines purchase any Additional Services from TaxValet, Client has been advised by TaxValet to seek professional advice and an opinion from its tax, legal, accounting, and financial advisors.
4. Order Forms and Confirmation
After receipt of any Initial Information an Order Form for Services may be completed by the Parties. Unless expressly stated otherwise, all Order Forms placed by Client shall be governed by the terms of this Agreement. TaxValet is not required to accept any Order Forms and no Order Forms shall be binding until TaxValet provides written Confirmation of acceptance. Following Confirmation, each Order Form shall be subject to the terms of this Agreement. Each Order Form for Services shall constitute a distinct and separate contract between the Parties and such Order Forms shall not be cumulative in liability. If any conflict arises between the terms of any Order Form and the terms of this Agreement, the terms of this Agreement will control over the terms of that Order Form, except where the Order Form expressly states the intent to supersede a specific portion of this Agreement. If the terms of any Order Form conflict with the terms of any Confirmation of that Order Form, the terms of the Confirmation will control over the terms of the Order Form.
TaxValet may provide general support for the Services in the form of email and/or telephone assistance, as available. Support shall be generally available; however, TaxValet makes no guarantee as to any specific support availability. TaxValet has no obligation to provide ongoing support and reserves the right to charge Client for any support provided.
6. Payment Authorization, Communications, and Mail
Client shall execute a Payment authorization form so that TaxValet may access Client’s Bank Accounts for the purposes of providing the Services. Client agrees that any communications or mail related to the Filings, Payments, or Services may be directed to an address owned by TaxValet. Client further authorizes TaxValet to receive and open mail on its behalf for the purpose of providing the Services and agrees to execute a separate mail authorization form as required by TaxValet. Where Client receives any mail or communications pertinent to the Filings or Payments, Client shall immediately notify and send such communications to TaxValet.
This Agreement shall begin as of the Effective Date and shall continue in full force and effect until the expiration or termination of all Order Forms, unless otherwise terminated as provided. Any initial term shall be set forth in an applicable Order Form(s) and shall automatically renew for the same length of time as the initial term unless terminated pursuant to this Agreement.
a. Termination For Cause
TaxValet may immediately terminate this Agreement upon written notice if the other Client commits a material breach of this Agreement. Client may terminate this Agreement for material breach upon written notice only if it gives TaxValet notice of a material breach and allows TaxValet the opportunity to cure such breach within thirty (30) days of being notified.
b. Termination For Convenience
This Agreement may be terminated for convenience by: (1) Client by giving sixty (60) calendar days written notice; or (2) TaxValet by giving thirty (30) calendar days written notice. Where Client provides notice of termination for convenience, Client agrees that it must give written notice of termination between the twentieth (20th) day of any calendar month and the final day of such calendar month (“Convenience Termination Period”). Upon Client giving notice during the Convenience Termination Period, the Services shall continue to be provided up until the final day of the month where the sixty day notice period elapses. For instance, where Client provides written notice of termination on January 21st, the Services will continue to be provided until March 31st (60 day notice + any additional days until the end of that calendar month). Failure to provide termination in this manner may cause Client to incur additional billable Fees.
c. Return Fees
Where this Agreement is terminated by Client, Client shall not be entitled to a refund of any of the Fees paid for any Services provided and Client shall be invoiced and pay for all remaining Fees due and owing. Where Client terminates this Agreement prior to the agreed upon initial term, where any discounts have been applied, Client shall be liable for payment of the Services in full without any price adjustments. Further, Client shall be obligated to pay for fifty (50%) percent of any remaining initial term Fees of the Services contemplated but not yet provided. Where Client has any Services scheduled for quarterly, semi-annual, or annual payment, Client may be required to pay for an additional period of Services if Client fails to abide by the termination for convenience requirements.
9. Effect of Termination
Upon termination or expiration of this Agreement for any reason: (1) Client shall cease using and TaxValet shall cease providing any Services or Additional Services, except where agreed upon in writing or pursuant to this Agreement; (2) TaxValet will have no further obligation to provide any Services or Additional Services to Client, in whole or in part; (3) all Fees incurred or owed shall become immediately payable; (4) Client shall return to TaxValet or destroy (at TaxValet’ direction) all TaxValet Confidential Information in Client’s possession and shall certify that it has done so in writing.
10. Return of Client Data
Within thirty (30) days following termination of this Agreement, Client may request, in writing, that TaxValet provide a copy of any Client Data possessed by TaxValet to Client in a mutually agreeable electronic format. Client shall bear all reasonable costs and expenses for preparing and delivering such information. Where Client has not paid all invoiced Fees, TaxValet reserves the right to withhold any Client Data until all Fees have been paid. TaxValet shall not provide any off-boarding Services where any outstanding Fees or termination Fees are due and owing. After such 30-day period, TaxValet shall have no obligation to maintain or provide any Client Data.
11. Client Responsibilities.
Client covenants, represents, and warrants the following:
a. Direction and Control.
Client shall at all times during the provision of the Services by TaxValet maintain all direction and control of all Payments, Filings, and Documents. The Services are preparatory and clerical in nature and submitted at the direction of Client.
b. Responsibility to Review
Client is responsible for reviewing and overseeing any Services provided by TaxValet. Client is solely responsible for understanding, completing, and reviewing: (1) its business and financial records including all Client Data and its business practices to ensure compliance with all Laws; (2) all Payments, Filings, and Documents prepared, processed, or submitted using the Services; and (3) all tax and product decisions related to its business including but not limited to legal compliance, tax status, or product taxability.
Client shall abide by any deadlines (“Deadline(s)”) as stated within the Order Form or as communicated to Client by TaxValet. Client acknowledges that significant governmental penalties may occur where Client fails to meet a Deadline. Client agrees to provide all necessary Client Data including any pertinent data or adjustments by the fifth (5th) day of each month where such Filing is due. Client agrees that TaxValet cannot “hold returns” to have them submitted on a particular date and must strictly abide by all Deadlines as set forth by TaxValet.
Client shall promptly provide TaxValet with all relevant information including any Client Data required by TaxValet.
e. Additional Cooperation
Upon request from TaxValet, Client shall provide TaxValet with Client Data and any additional documentation as reasonably requested by TaxValet or complete necessary tasks are required in order to provide the Services or to verify Client’s compliance with this Agreement.
f. Fund Availability
Client shall ensure that all Payment Accounts are fully funded and shall properly monitor its Payment Accounts to ensure sufficient funds are available at all times. Client acknowledges that significant governmental penalties may occur where Client fails to maintain sufficient funds in its Payment Account.
g. Bank Changes
Client shall provide sixty (60) calendar days written notice for any material changes to its Payment Accounts including any bank changes. Any bank change may be subject to an additional Fee.
Client shall report any notifications or communications received from a Recipient immediately to TaxValet upon receipt of such notice. Failure to notify TaxValet may cause Client’s Filing to be submitted late and/or inaccurately which may incur penalties/interest.
i. Listed Client Obligations
Client shall abide by any and all additional listed obligations within any Exhibits of this Agreement.
Failure by Client to abide by any obligations within this Section 11 shall constitute a material breach of this Agreement and may result in the immediate termination of the Services or this Agreement, at TaxValet’s discretion. Any breach of this Section 11 may result in additional Fees being charged to Client’s subscription. Where Client fails to abide by any obligations within this Section 11, Client shall release TaxValet from any associated liability and indemnify TaxValet for any actions or damages that may arise from Client’s breach of such obligations.
12. Relationship of the Parties.
Except as expressly stated to the contrary in this Agreement, under no circumstances shall Client’s use of the Services create a fiduciary relationship between Client and TaxValet or create any fiduciary obligation by TaxValet to Client. Client agrees that Client and TaxValet are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, or employment relationship. Except as specifically described within an Additional Services Order Form.
TaxValet provides no opinion as to the lawful operation or proper licensing of Client’s business. Client remains solely responsible for Client’s compliance with all Laws regarding Client’s business, taxes, permitting, licensing, operations, products, and services. Client has been advised by TaxValet to seek a legal opinion regarding Client’s compliance with all Laws.
14. Access to Third-Party Services.
In addition to the terms of this Agreement, Client’s access to and use of any Third Party Services is also subject to any other terms separate from this Agreement that Client may enter into (or may have entered into) relating to those Third Party Services (“Third Party Service Terms”). Where any Third Party Service Terms conflict with this Agreement, this Agreement shall control. Third Party Services may be subject to additional Fees as described in each Order Form or through the Services. TaxValet makes no recommendation, warranty, or representation regarding any Third Party Services, TaxValet shall have no liability to Client in regards to Client’s use of any Third Party Services. Client is solely responsible for verifying the validity of any Third Party Services.
15. Client Data License
Client agrees that it is solely responsible for any Client Data submitted and releases TaxValet from any liability associated with any Client Data submitted. Client understands that TaxValet cannot guarantee the absolute safety and security of any such Client Data. Where Client submits any Client Data to TaxValet, Client grants TaxValet, its partners, affiliates, third party contractors, representatives and assigns a non-exclusive, fully-paid, royalty-free, irrevocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, market, sub-license or use and reuse all or part of the Client Data for the purposes of fulfilling the Services. TaxValet may share Client Data with any Third Party Services and with Client’s own service professionals such as their accountants.
16. Client Data Verification
Client shall provide TaxValet with all Client Data necessary for TaxValet’s performance of the Services under this Agreement, including the accurate, complete and timely preparation and submission of all Documents through the Services. Client acknowledges and agrees that TaxValet does not audit, validate, or verify any Client Data and that Client is solely responsible for the accuracy, completeness, and timeliness of all Client Data. Client represents and warrants that all Client Data is accurate, up-to-date and complete and releases and indemnifies TaxValet from any liability with regards to any Client Data.
17. Service Data.
Other than the Client Data provided by Client, all data, information and other content made available to Client through the Services (“Service Data”) is owned by TaxValet and its third party service providers. Subject to and conditioned on compliance with the terms and conditions of this Agreement, Client may access and use the Service Data solely for Client’s own business purposes in connection with Client’s use of the Services. TaxValet uses commercially reasonable efforts to maintain and verify that the Services and Service Data are accurate and current with respect to the information provided, but TaxValet cannot verify the accuracy of, and will not be responsible for any errors or omissions in, any Service Data. All Services and Service Data are provided for informational purposes only and Client is solely responsible for verifying the accuracy, completeness and applicability of all Service Data and for Client’s use of and reliance on the Service Data.
a. Subscription Fees
Client agrees to pay TaxValet all fees relating to Client’s access to and use the Services or any Additional Services (“Fees”) as set forth in an Order Form. Client may provide Fee authorization payment information or pre-pay for any Fees as required by TaxValet. Except for any Additional Service Fees or Fees described as one-time or set-up within the Order Form, all Fees are subscription Fees that recur and renew automatically during each new subscription period as stated within the Order Form until the expiration of this Agreement. TaxValet may adjust any Fees at any time during the term of this Agreement, to be effective upon the next billing period following notice to Client. All fees are shown in U.S. Dollars and all payments will be made in U.S. Dollars.
b. Fee Adjustments
Client’s subscription Fee is calculated in part based on estimated Filing frequency. Client agrees that as its Filing frequency changes (either positively or negatively) the subscription Fee owed to TaxValet may change and fluctuate from subscription period to subscription period. TaxValet shall attempt to estimate the subscription charges based on Client’ Filing frequency; however, Client agrees that all such subscription charges related to Filing frequency are merely good faith estimates. Where any overpayments are made by Client to TaxValet for subscription Fees calculated due to Filing frequency, such overpayments shall be credited to Client’s account as credits that may be used to pay for Services by Client.
19. Fee Payment.
Billing for all Fees will after the Effective Date pursuant to the Order Form. Client must pay for all Fees incurred and stated as due when invoiced by TaxValet. All Fees must be paid using ACH withdrawal from Client’s Payment Account or another bank account designated by Client (in either case, Client’s “Bank Account”) or by credit card designated by Client. Client agrees to have the Fees charged to Client’s Bank Account or Credit Card on file with TaxValet when due and authorizes TaxValet to automatically submit such charges to Client’s Bank Account or Credit Card. If payment of any Fees is declined for any reason, TaxValet may make additional attempts to process payment. If a declined payment is not resolved through such attempts, access to and use of all Services may be suspended or terminated by TaxValet immediately. All Fees will be non-refundable once paid to TaxValet (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1 1/2% per month or the maximum amount allowable under applicable law. Client will be responsible for all expenses incurred by TaxValet due to the use of collection agencies, attorneys, or courts of law for collection of any Fees from Client.
Where any errors are made during the course of the Services that would cause a deduction in any Fees paid by Client to TaxValet or any refunds are issued to Client by TaxValet (collectively a “Credit(s)”), such Credits may be used to deduct Client’s Fees for any Services provided by TaxValet. Such Credits shall have no cash value and where any Credit is issued to Client and Client terminates the Services for convenience, TaxValet shall not be required to issue any refund payments to Client for any outstanding Credit balance remaining in Client’s account.
Client is solely responsible for all use, sales, excise, licensing, value added, and other applicable taxes and charges levied or imposed on either Client or TaxValet that may result from Client’s use of or access to the Services, including related Filings and Payments prepared and submitted through the Services (except any such taxes based on TaxValet’ net income).
22. Suspension of Services
TaxValet may suspend Client’s access to the Services upon: (1) a failure by Client to timely pay for any Services or Additional Services, (2) a dispute of any Fees invoiced by TaxValet to Client; (3) any actual, threatened, or suspected breach of this Agreement or any applicable Laws, or (4) discovery or belief by TaxValet that Client has participated in conduct that is inappropriate or detrimental to the Services, TaxValet, or any other TaxValet client.
During the term of this Agreement, a Party (the “Receiving Party”) may be exposed to or acquire information regarding the business, projects, operations, finances, activities, affairs, research, development, products, technology, technology architecture, business models, business plans, business processes, marketing and sales plans, customers, finances, personnel data, programs, processing techniques and generated outputs, intellectual property, and procurement processes of the other Party or their respective directors, officers, employees, agents or clients (collectively, the “Disclosing Party”), including, without limitation, any idea, proposal, plan, procedure, technique, formula, technology, or method of operation (collectively, “Confidential Information”). Confidential Information includes any TaxValet information that a reasonable party would conclude is confidential in nature. All Client Confidential Information must be marked or noted as “confidential” in order for these confidentially provisions to apply. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information that is in its possession with the same or comparable security measures as it uses to protect its own Confidential Information, provided that such measures will be at least reasonable for such purpose. The Receiving Party agrees that, except as expressly directed by the other or as necessary for the purposes of this Agreement, it will not at any time during or after the term of this Agreement: (1) disclose any Confidential Information to any third party; (2) permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (3) use any of the Confidential Information. TaxValet may disclose Confidential Information to personnel having a need to know the Confidential Information in the performance of their duties under this Agreement, and will instruct them to keep such information confidential. TaxValet may disclose Client’s Confidential Information on a need to know basis to its subcontractors who are providing all or part of the Services, provided those subcontractors have executed confidentiality agreements. If either party is required to disclose the other party’s Confidential Information pursuant to any statute, regulation, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the other party as soon as practicable to afford such party the opportunity to seek a protective order and the party required to make such disclosure will reasonably cooperate in such efforts (at the other party’s reasonable expense). Confidential Information shall not include any information that a Party can demonstrate: (i) was in the public domain at the time of disclosure to such Party; (ii) was published or otherwise became part of the public domain after disclosure to such Party through no fault of such Party; (iii) was previously disclosed to such Party without a breach of duty owed to the other Party by a third-party who had a lawful right to such information; or (iv) was independently developed by such Party without reference to Confidential Information of the other Party.
TaxValet retains all right, title and interest, including, without limitation, to all Services and any documents, forms, processes, or technology integrated into or provided in conjunction with the Services or any Additional Services. By using the Services, Client acknowledges that it does not receive any ownership interest in or to any portion of the Services. The TaxValet name, logo and the product and service names associated with the Services are trademarks of TaxValet (or its third party providers), and no right or license is granted to Client to use them. Client will not alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Services. Further, where TaxValet assists Client by providing access to any Third Party Services, TaxValet shall own all assets located within such Third Party Services including but not limited to account names, account information, account logins, and account configurations.
Each party hereby represents, warrants and covenants to the other party that: (1) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; and (2) such party has full power and legal authority to enter into this Agreement and to carry out the provisions hereof without any additional consent or authorization.
26. Client Warranties.
In addition, Client represents, warrants, and covenants to TaxValet that: (1) Client will comply with all applicable Laws, including all Laws applicable to Client’s access to and use of the Services and all reports, registrations, postings, or other filings or payments Client is required to prepare or submit under applicable Law; (2) Client’s use of the Services will not cause TaxValet to violate any applicable Law; (3) all Client Data is and will remain current, accurate and complete; and (4) Client has and will maintain all right, title, interest, and consents necessary to allow TaxValet to use, process, and share all Client Data for purposes of providing all Services under this Agreement.
TAXVALET PROVIDES THE SERVICES ONLY AS EXPRESSLY STATED HEREIN AND DOES NOT OFFER A GUARANTEE OF ANY KIND AS TO THE SERVICES. CLIENT’S USE AND RELIANCE UPON THE SERVICES IS AT CLIENT’S OWN RISK. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES ARE PROVIDED TO CLIENT “AS IS” AND TAXVALET AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICES, AND ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, ACCURACY OF RESULTS OR INFORMATION, OR UNINTERRUPTED USE, WHETHER EXPRESS, IMPLIED OR STATUTORY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TAXVALET, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the disclaimers, limitations and exclusions contained herein may not apply to Client. To the extent that TaxValet may not, as a matter of applicable law, disclaim any warranty or limit or exclude any liability, the scope and duration of such warranty and the extent of TaxValet’ liability shall be the minimum TaxValet under such applicable law.
28. Limitation on Liability.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EVEN IF TAXVALET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE, IN NO EVENT WILL TAXVALET, ITS EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR AFFILIATES BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUE, PROFITS OR BUSINESS OPPORTUNITY, LOST OR CORRUPTED DATA, OR INTERRUPTION OF BUSINESS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TAXVALET’S TOTAL LIABILITY FOR ANY AND ALL DAMAGES SHALL NOT EXCEED THE TOTAL FEES RECEIVED BY TAXVALET FROM CLIENT FOR USE OF THE SERVICES AS CONTEMPLATED IN SUCH SPECIFC ORDER FORM IN THE SIX MONTHS PRIOR TO SUCH LIABILITY OR DAMAGES ARISING. EACH PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS OF LIABILITY AND ALLOCATION OF RISK REFLECT PART OF THE BARGAINED-FOR EXCHANGE OF THE PARTIES WITH RESPECT TO THIS AGREEMENT AND THE SERVICES. THIS AGREEMENT IS NOT INTENDED TO LIMIT CLIENT’S RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY FILING OR PAYMENT REQUIRED TO BE MADE BY CLIENT UNDER APPLICABLE LAW, WHETHER OR NOT SUCH FILING OR PAYMENT IS MADE BY TAXVALET ON BEHALF OF CLIENT UNDER THIS AGREEMENT. CLIENT WILL REMAIN SOLELY RESPONSIBLE FOR ALL SUCH FILINGS AND PAYMENTS CLIENT IS REQUIRED TO MAKE UNDER APPLICABLE LAW. FURTHER THIS LIMITATION DOES NOT LIMIT TAXVALET’S RIGHT TO RECEIVE ANY FEES OWED TO IT BY CLIENT.
Client agrees to defend, indemnify and hold harmless TaxValet, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (1) Client’s breach of this Agreement; (2) Client’s use of the Services. This defense and indemnification obligation shall survive this Agreement. Client agrees that it has a duty to defend TaxValet against all such claims and TaxValet may require Client to hire an attorney(s) of TaxValet’s choice in such cases. Client agrees that this indemnity extends to requiring Client to pay for TaxValet’s reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this Section, TaxValet may elect to settle with the party/parties making the claim and Client shall be liable for the damages as agreed upon by TaxValet and such third parties.
All notices to Client provided for under this Agreement or relating to the operation of the Services may be sent by TaxValet electronically via electronic mail or through written communication. All other notices, consents, and communications provided for under this Agreement, (including all notices Client provides to TaxValet) will be in writing and will be delivered by hand or sent by express courier or delivery service that guarantees delivery within 48 hours (such as Federal Express or DHL) to TaxValet’s address. TaxValet may designate specific notices be sent by Client via electronic communication; however, such designation shall only apply to such specific notices and not notices generally sent by Client.
31. Force Majeure.
If TaxValet is unable to perform any of its obligations under this Agreement because of any event beyond its reasonable control and foreseeability, including, without limitation, any natural disaster, labor disputes, actions or decrees of governmental entities, riots, war, terrorism, or epidemics (a “Force Majeure Event”), the obligations of TaxValet under this Agreement prevented by such Force Majeure Event will be suspended for the duration of the Force Majeure Event, provided that TaxValet exercises reasonable efforts to resume performance of such obligations as soon as possible despite such Force Majeure Event.
This Agreement will be governed by the laws of Colorado, without regard to or application of conflicts of law rules or principles.
Except as otherwise expressly provided below in this Agreement, all disputes that arise from or relate to this Agreement shall be decided exclusively by binding, non-appealable arbitration in Denver, CO under the JAMS Comprehensive Arbitration Rules (the “Rules”), provided, however, the Parties may agree in writing to further modify the Rules. The dispute shall be decided by a sole arbitrator, who shall be a retired or former judge, or an attorney with at least ten (10) years of experience, and be mutually acceptable to the Parties. The sole arbitrator shall be selected by mutual agreement of the Parties, or, if the Parties cannot agree upon an arbitrator within ten (10) days, then each Party shall select an arbitrator who shall confer and select a third arbitrator to serve. The arbitrator shall issue a short written statement (not to exceed 15 pages, excluding exhibits) setting forth its decision and reasons therefore. The Parties agree that the arbitrator’s award shall be final, and may be filed with and enforced as a final judgment by any court of competent jurisdiction. Each Party will bear its own attorneys’ fees and its own costs and expenses (including filing fees). The arbitrator shall have no power to (i) award damages in excess of the amount or other than the types allowed by the Limitation of Liability; or (ii) alter any of the provisions of this Agreement. Either Party may seek interim measures of protection concerning any subject matter of the dispute subject to arbitration, including but not limited to interim injunctive relief, in a court of competent jurisdiction located in Denver County, CO.
If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force.
Unless withdrawn upon written request, Client allows TaxValet to publicize its relationship with TaxValet.
TaxValets reserve all rights permitted to it under this Agreement as well as under the provisions of any applicable law. All rights with regards to any remedies are cumulative. TaxValet’s non-enforcement of any particular provision or obligation contained within this Agreement should not be considered a waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
Headers are merely to assist in clarifying the structure of this Agreement and should not be interpreted as binding or a part of this Agreement
Neither this Agreement nor any rights or obligations of Client hereunder may be assigned by Client (in whole or in part and including by sale, merger, operation of law, or otherwise) without the prior written approval of TaxValet. Any assignment in derogation of the foregoing will be null and void. TaxValet may assign this Agreement to any party that assumes TaxValet’ obligations hereunder.
39. Entire Agreement.
This Agreement may be executed or agreed to by the parties in multiple counterparts (including via facsimile or online or electronic method approved by TaxValet), each of which will be deemed an original and all of which will constitute one and the same instrument. Photocopies, facsimiles and other electronic copies of original signatures in a form approved by TaxValet will have the same force and effect as original signatures.
Neither Party may amend this Agreement without the written consent of the other Party.
The rights and obligations that a reasonable party would believe to survive termination shall survive and remain in full force including but not limited to: Fee payment obligations, disclaimers, warranties, indemnification obligations, limitation of liabilities, confidential information, client responsibilities, and dispute provisions.
TaxValet Services – Exhibit B
Exhibit B outlines the specific Services offered by TaxValet to Client and is incorporated into the TaxValet Services Agreement (“Agreement”). All capitalized terms that are undefined within Exhibit B shall have the definition found in the Agreement. Client agrees to abide by all conditions as follows:
1. Onboarding: Client shall submit Client Data to TaxValet and TaxValet may assist Client in organizing and analyzing such Client Data. Client shall provide truthful, accurate, and up to date Client Data and shall cooperate with TaxValet’s requests during the onboarding process. Client shall complete onboarding and submit all Client Data within ninety (90) days of the Effective Date of the Agreement. Client may be subject to additional fees where Client fails to properly and fully complete the onboarding process within the time period.
2. Review and Validation. TaxValet may assist in preparing Client’s Filing and submitting any Filings to any applicable Recipients based on Client’s instructions. Client is solely responsible for reviewing and confirming the accuracy and applicability of each Filing and shall review all Filings prior to submission by TaxValet to the applicable Recipient. Client shall validate that each Filing and all Client Data, information or content contained therein is accurate, complete, timely, and being made in compliance with all applicable Laws. Client agrees to provide TaxValet with any corrections or other changes to each Filing or any Client Data prior to all applicable Deadlines established by TaxValet for any Filings.
3. Payment Account. Client shall designate a Payment Account so Client may make any Payments via the Services, as permitted by TaxValet. Client shall ensure that sufficient funds are maintained in the Payment Account at all times. TaxValet will not be responsible for providing any funds to make Payments on Client’s behalf and will not be responsible for monitoring Client’s Payment Account. If Client’s Payment Account contains insufficient funds to make any Payment, Client will immediately deposit all required funds into the Payment Account prior to the occurrence of a Payment. TaxValet is not required to confirm that Client’s Payment Account contains sufficient funds to make any Payment. Without limiting the foregoing, if for any reason Client’s Payment Account does not contain sufficient funds to make any Payment, TaxValet may refuse to submit such Payment until sufficient funds are available in the Payment Account, may submit any Filing to an applicable Recipient without proper or sufficient Payment, or may cancel submission of that Payment and refuse to proceed further with the Payment or any related Filing. In each case it will be Client’s sole responsibility to ensure that all required Filings and Payments are made directly to the applicable Recipient via Client’s Payment Account. Where a Payment is resubmitted on behalf of Client to Recipient, such resubmission shall be subject to additional Fees.
4. Credentials. Client shall submit all credentials and other Client Data necessary for TaxValet to submit each Payment or Filing with each applicable Recipient (“Credentials”) prior to the applicable Deadline established by TaxValet. TaxValet will assume all Credentials are valid and is not required to confirm the accuracy or validity of any Credentials. Without limiting the foregoing, if for any reason Client fails to submit valid Credentials to TaxValet prior to an applicable Deadline, TaxValet may refuse to submit any Payment or Filing for which such Credentials are required.
5. Preparation and Submission. TaxValet may prepare and submit Client’s tax permit registration application, Client’s Payment, or Filing to the applicable Recipient on Client’s behalf based on the Client Data provided and at Client’s direction.
6. Payments. Payments may be made by TaxValet on behalf of Client in methods allowed by TaxValet. In the case of Payment by check, TaxValet may print a check payable from Client’s Payment Account and submit that check to the applicable Recipient receiving such Payment. Alternatively, TaxValet may withdraw and transfer the applicable Payment amount from Client’s Payment Account to a bank account controlled by TaxValet and make Payment to the applicable Recipient from that account. If Client has elected to have any Payments made by electronic funds transfer, Client authorizes TaxValet to withdraw all applicable Payment amounts from Client’s Payment Account and arrange for such amounts to be remitted to the applicable Recipient. Client will provide TaxValet with all Credentials regarding Client’s Payment Account necessary for TaxValet to make all such Payments and shall ensure that all Payment permissions have been set up correctly. Client agrees that where a Payment is not processed or “bounces” due to insufficient funds, debit blocks, or other reasons, Client shall be solely responsible for any penalties or interest and further shall be solely responsible for resolving the issue with its bank and resubmitting any Payment to any Recipients.
7. Sales Tax Collection Settings: TaxValet may assist Client in setting up its sales tax collection settings on any third party platforms. Where TaxValet offers such assistance, Client shall provide access such third party platform along with any Credentials. TaxValet shall assist in the setup of the sales tax collection settings based on the instructions of Client and Client is solely responsible for verifying that the tax collection settings on any third party platform are set up properly. Due to the limited tax settings available on some third party platforms, Client releases TaxValet from any liability based on any tax collection errors, changes to any tax collection settings, or any liability due to over or under-collecting tax. Where TaxValet provides such Service, TaxValet may charge Client an additional Fee. Ongoing tax setting maintenance is not included in the Services and is considered an Additional Service. Further, it is Client’s responsibility to verify that all tax settings are set-up on all individual products sold by Client. TaxValet shall not assist Client in selecting any product tax codes, where Client requires such assistance Client shall execute an Additional Services Order Form.
8. Nexus and Liability Reviews: Client is solely responsible for determining any nexus to any state during its use of the Services. TaxValet shall not perform any nexus or liability review during the provision of the Services to Client. Where TaxValet provides Client any information regarding nexus to Client during the course of the Services, such information is provided for general informational purposes. Client shall immediately notify TaxValet where it discovers any additional nexus requirements. Any nexus or liability reviews offered would be subject to an Additional Service Order Form.
9. Permit States. Client is solely responsible for determining which permits to apply for and instructing TaxValet to apply for any specific state permits. Additionally, Client shall instruct TaxValet which states to remit tax. Client is solely responsible for any permit fees. TaxValet does not provide any opinion with regards to any choices made by Client in applying for a state permit or any decisions to remit taxes to any particular state. TaxValet shall not be liable to Client for its failure to apply for a permit in a specific state, collect taxes for any specific state, or to remit taxes for any specific state. Where Client requires guidance for any state permitting or state tax remittance Client shall execute an Additional Service Order Form.
10. Permit Start Dates. Client is solely responsible for providing and verifying any permit start dates and effective nexus start dates. TaxValet shall not verify any permit start dates or effective nexus start dates and shall not be liable to Client for any improper permit dates.
11. Product Tax Settings and Uncollected Tax. TaxValet may assist Client in the setup of tax collection settings at the Recipient account level as directed by Client. TaxValet shall not verify any account level settings and all inputs are based on the instructions and direction of Client. Client bears all responsibility in ensuring that proper tax settings are enabled at the product level and account level. TaxValet shall not assist in or review any product level settings for Client. Client is responsible for verifying that tax collection has been set up correctly on its accounts and must notify TaxValet immediately where any tax collection settings have been improperly set. Further, Client shall notify TaxValet where any change has been made to an account level or product level setting. Client is solely responsible for determining any exemptions for any product or service transactions.
12. Remittance Calculation. Client shall instruct TaxValet to prepare Filings based on the following methods: 1) The Filing is calculated based on the tax calculations provided by any third party platform that Client or TaxValet uses; or 2) The Filing is prepared based on a reconciliation of the actual tax collected for the products or services sold. Where Client selects Option 1, Client shall be solely responsible for any tax over and/or under calculations in any Filings based on any third party platform calculations. Where Client selects Option 2 Client shall be solely responsible for verifying any under collection of taxes and paying any differences in such under collection. TaxValet does not provide sales tax calculation services for any transactions by Client.
13. Verification of Uncollected Taxes. TaxValet shall not verify whether Client has any uncollected taxes, Client is solely responsible for verifying any uncollected taxes.
14. Tax Collection Variance. TaxValet shall not monitor whether there is variance between the tax collected for Client and the tax paid for Client for any Filings, Client is solely responsible for monitoring any tax variance.
15. Tax Setting Support. TaxValet shall not provide ongoing support or active monitoring of any state changes to sales tax rates. Client is solely responsible for monitoring and notifying TaxValet for any changes to sales tax rates. Where Client requires sales tax setting updates due to any state changes or any ongoing tax setting maintenance such update or maintenance shall be subject to an additional Fee.
16. Product Testing. TaxValet may test sales tax settings on one product across all of Client’s sales channels; however, Client shall have the obligation to ensure that tax settings are set-up properly on each of Client’s individual products including any tested product.
17. Tax Rate Determination: Client is solely responsible for tax rate determination on all products or services. TaxValet shall not responsible for any tax rate determination. TaxValet may provide information regarding tax rate determination at the request of Client. Where TaxValet provides Client any information regarding tax rate determination to Client during the course of the Services, such information is provided for general informational purposes. Where any third party provides any tax rate determination, Client shall not hold TaxValet liable for any third party’s tax rate recommendations. Where Client requires guidance regarding specific tax rate determinations Client shall execute an Additional Services Order Form.
18. Tax Remitted to States. TaxValet uses Third Party Services to calculate the tax due for any Payments; Client is responsible for verifying that any tax due is calculated correctly. Client understands that tax due is based on state and local laws and not based on the tax collection settings used in Client’s sales channels. Client agrees that it is solely liable for any discrepancies in tax due and tax collected. Where Client requests that TaxValet remit the sales tax based on tax collected and adjusts the taxable/exempt sales so that tax collected/due may be reconciled, TaxValet will not be held liable for any under collection or improper remittance.
19. Filing Holds. TaxValet is unable to pause or “hold” any Filings and any request by Client to do so shall cause the Filing to be delayed and may subject Client to any additional Fees and fines.
20. Local Permits and Filings. TaxValet may assist in the application of permits on the local level and such local permitting shall be the responsibility of Client. The Order Form shall describe any permit registrations included in the Services. Any additional filings shall be the sole responsibility of Client unless instructed by Client otherwise and agreed upon by TaxValet.
21. Submission of Late Returns. Client must verify historical Client Data as complete and accurate, prior to the preparation of any late return filings. Client is solely responsible for disclosing any late returns required and TaxValet shall not verify whether Client has any outstanding late returns. TaxValet may assist in preparing late returns for Client but such late returns are subject to TaxValet’s capacity constraints and TaxValet shall not liability to Client for any penalties or fees incurred due to delayed submission of late returns.
22. Filing Deadlines. Client shall submit Client Data for any relevant Filings no later than the fifth (5th) day of each calendar month where such Filing is due. Where TaxValet has not received such Client Data, if TaxValet does not receive any additional Client Data by the fifth (5th) day Client instructs TaxValet to approve all transactions and submit the relevant Filings.
23. Sales Tax Collection. TaxValet does not provide sales tax rate calculation services and is reliant on third party providers to calculate and collect sales tax. Client is solely responsible for verifying and monitoring that all sales tax calculation and collection has been properly set up. TaxValet will not be held liable in the event that the tax collected by a sales channel does not match the tax that is due to the state, as TaxValet does not provide sales tax calculation or collection services.
24. Check-In. Taxvalet may offer an annual check in to Client regarding Client’s use of the Services. Client is solely responsible for scheduling such annual check-in with TaxValet.
25. Audits. TaxValet does not provide any audit support via the Services, any audits shall be subject to an Additional Services Order Form.
26. Product Taxability. Client shall decide the product taxability settings for any products sold by Client. Client shall instruct TaxValet to set up any accounts and prepare any Filings based on Client’s selected product taxability settings. Where Client fails to notify TaxValet, TaxValet shall treat all products as generally taxable. Where Client requests information regarding any product taxability, TaxValet may provide general information with regards to product taxability. Where product taxability information is provided, such information is general in nature. Where Client requires an opinion or advice regarding any product taxability issues, Client shall be required to execute an Additional Services Order Form so that an independent product taxability study may be commissioned.
27. Additional Services. All Services not explicitly enumerated within this Exhibit B shall be considered Additional Services; Client shall be required to execute an Additional Services Order Form prior to TaxValet providing any Additional Services. TaxValet is not required to provide any Additional Services and may refuse or refrain from providing any Additional Services at any time. Where Client requires tax guidance or tax research, and where TaxValet is willing to provide such guidance and research, such guidance and research shall be provided pursuant to an Additional Services Order Form.
28. The Services are subject to the disclaimer located within the TaxValet Services Agreement.
29. Failure by Client to abide by any of the listed responsibilities or obligations within this Exhibit B shall constitute a material breach of this Agreement, that may result in the immediate termination or suspension of the Services or this Agreement, at TaxValet’s discretion. Where Client fails to abide by any enumerated obligation, Client shall release TaxValet from any associated liability and indemnify TaxValet for any actions or damages that may arise from Client’s failure to abide by its obligations.
30. Client specifically releases TaxValet from the following: (1) any failure by Client to review and validate any Filings or tax settings and any errors, omissions, or inaccuracies in any Client Data or in any Filing based on or relating to any Client Data; (2) any penalties, fines, interest, or other assessments due as a result of failure to submit any Filing or Payment due to insufficient Payment Account funds or improper setup of a Payment Account; (3) any failure by Client to submit any valid Credentials to TaxValet prior to any applicable Deadline; (4) any failure or delay in submitting any Payment or Filing where Client fails to meet any applicable Deadline for that Payment or Filing or is otherwise not in compliance with the terms of this Agreement; (5) any nexus, tax setting, tax rate calculation, or product taxability decisions made by Client; (6) any changes Client has made to any account level or product level tax collection settings.
TaxValet Registration Services – Exhibit C
Exhibit C outlines the Registration Services offered by TaxValet to Client and is incorporated into the TaxValet Services Agreement (“Agreement”). All capitalized terms that are undefined within Exhibit C shall have the definition found in the Agreement. Client agrees to abide by all conditions as follows:
Premium Permit Registration. TaxValet may assist Client in preparing and submitting paperwork in order for Client to receive a registered tax permit from a Recipient. In addition, TaxValet may assist Client in setting up its online Recipient account, at Client’s direction, where Client has received an approved tax permit. Further, TaxValet may assist Client in receiving communications from Recipient, on Client’s behalf, during the Term of this Agreement. Client is solely responsible for directing TaxValet to submit paperwork for any such Recipient. Client shall provide all relevant Client Data as required by TaxValet and adhere to any Deadlines as set forth by TaxValet.
Client is solely responsible for determining which tax permits Client wishes to register and apply for and TaxValet shall make no such determination on behalf of Client. TaxValet does not warrant or guarantee that any tax permits applied for shall be approved or granted by any Recipient and Client releases TaxValet from any liability regarding any tax permit approvals. The registration Services listed in this Exhibit are subject to the Services Disclaimer located within the TaxValet Services Agreement. Where Client requires tax advice and where TaxValet is willing to provide such advice, Client and TaxValet shall execute an Additional Services Order Form. Failure by Client to abide by any of the listed responsibilities or obligations within this Exhibit C shall constitute a material breach of this Agreement, that may result in the immediate termination or suspension of the Services or this Agreement, at TaxValet’s discretion. Where Client fails to abide by any enumerated obligation, Client shall release TaxValet from any associated liability and indemnify TaxValet for any actions or damages that may arise from Client’s failure to abide by its obligations.
Exhibit E – TaxValet Mail Authorization
As part of the Services as described in the TaxValet Services Agreement, Client (as identified in the Agreement) authorizes TaxValet to receive mail on its behalf and this Authorization is incorporated into the Services Agreement. Any capitalized terms that are not defined in this Authorization are defined in the Services Agreement.
As part of this Authorization, Client agrees to the following:
1. Client authorizes TaxValet to use its own mailing address to receive mail on behalf of Client for the purposes of providing the Services.
2. Client authorizes that any mailings regarding the Services, communications with Recipients, Client Recipient account addresses, or communications regarding the Filings and/or permit registrations may be directed and addressed to TaxValet’s mailing address on behalf of Client (collectively “Client Mailings”).
3. Client authorizes TaxValet to open, read, and, scan any Client Mailings.
4. Client authorizes TaxValet to destroy any Client Mailings upon scanning and forwarding of such copies of Client Mailings to Client after holding them for a reasonable duration.
5. Where Client requires original copies of such Client Mailings, Client shall promptly notify TaxValet prior to the receipt of any Client Mailings. TaxValet shall have no liability to Client where such Client Mailings have been inadvertently destroyed prior to notification by Client.
Client represents and warrants that Client has the authority to enter into this Authorization on its behalf. Where Client is a company or legal entity, the individual signing this Authorization represents and warrants that he/she has the authority to enter into this Authorization on behalf of the company or legal entity. TaxValet shall keep original copies of Client Mailings for a reasonable period, after such time the Client Mailings may be promptly destroyed.