TaxCloud® Terms of Service Agreement
Welcome to the TaxCloud®
Terms of Service Agreement. In order to obtain or continue using the TaxCloud Service, you must agree to and accept the terms and conditions of this Agreement. Please read this Agreement carefully.
By applying your electronic signature to this document below, or by acknowledging your acceptance of the Agreement terms and conditions by any other method allowed by FedTax, or by using the TaxCloud Services, Merchant acknowledges and agrees that it has reviewed and understands the Agreement and agrees to be legally bound by all its terms and conditions. If Merchant does not agree or is not willing to be bound by the terms and conditions of this Agreement, do not acknowledge your acceptance of the Agreement terms and conditions by any method and do not seek to obtain or continue using the TaxCloud Service.
- 1. Definitions.
- 1.1 "FedTax" means The Federal Tax Authority, LLC, a Washington Limited Liability Company with a mailing address at PO Box 21185, Seattle, Washington, 98111-3185.
- 1.2 "TaxCloud" and "TaxCloud Service" means the FedTax proprietary sales tax management service(s), as further described by this Agreement and the Operating Procedures and User Guide, which is incorporated herein by reference to https://taxcloud.net/guide/ and which may be updated from time to time.
- 1.3 "Operating Procedures and User Guide" means the documentation relating methods, processes and procedures that control TaxCloud Lookups and TaxCloud Transactions, information disclosures, and reporting obligations of Merchant.
- 1.4 "TaxCloud API" means the TaxCloud proprietary Application Programming Interfaces made available to Merchant, subject to Merchant's ongoing compliance with this Agreement to enable Merchant to use the TaxCloud Service.
- 1.5 "Merchant" means the person or business entity who is a party to this agreement, including its parents, agents and employees, that has a contractual relationship with FedTax and sells goods or services to another party.
- 1.6 "TaxCloud Merchant Interface" means the internet accessible sales tax management user interface available to Merchants at https://taxcloud.net/.
- 1.7 "Agreement" means this TaxCloud Terms of Service Agreement, the TaxCloud Service, Fee Schedules, and all exhibits attached hereto, and all incorporated policies, procedures, and specifications.
- 1.8 "Terms of Service" means this Agreement, a current version of which will at all times be available at https://taxcloud.net/tos/
- 1.9 "Merchant Registration" means the electronic forms, and all information submitted therein by Merchant via the Merchant Interface as required to enroll as a Merchant for the TaxCloud Service.
- 1.10 "Sales Tax" means the consumption tax (a tax on spending for goods and services) calculated by the TaxCloud Service based upon applicable Tax Jurisdiction(s) of Record for the transaction. Sales Tax is charged to the consumer or purchaser at the time of purchase from Merchant for certain goods and services. If Sales Tax is not charged at the time of purchase, equivalent Use Taxes are due from the purchaser in the Tax Jurisdiction of Record for the transaction.
- 1.11 "Tax Jurisdictions of Record" means all applicable state, county, regional, tribal, or special tax district jurisdictions for a particular TaxCloud Transaction, with respect to TaxCloud Member States, as determined by at least Section 309 and Section 310 of the Streamlined Sales and Use Tax Agreement.
- 1.12 "Tax Remittances Due" means Sales Taxes collected by Merchant for the benefit of the Tax Jurisdictions of Record for those transactions where merchant has elected to have TaxCloud file sales tax returns as indicated in Exhibit E, Section 3.
- 1.13 "SSUTA" or "Streamlined Sales and Use Tax Agreement" means the multi-state Agreement known as the Streamlined Sales and Use Tax Agreement adopted November 12, 2002, as subsequently amended and incorporated herein by reference to http://www.streamlinedsalestax.org/ or such other internet location as may be determined or modified by the SSUTA Governing Board with or without notice.
- 1.14 "SSUTA Governing Board" means the managing body of the SSUTA.
- 1.15 "Taxability Codes" or "Taxability Information Codes" means product or service taxability classification categories as determined by the SSUTA Governing Board which may be modified at any time with or without notice.
- 1.16 "Exempt Entities" means individuals or entities that qualify to be exempted from obligation to pay Sales Taxes based upon valid exemption credentials issued by the Tax Jurisdictions of Record which Merchant shall exercise due caution and diligence in accepting and verifying in advance of submission to the TaxCloud Service for any applicable TaxCloud Transaction
- 1.17 "TaxCloud Member States" mean any Streamlined Sales and Use Tax Agreement Member State, Contingent Member State, or Associate Member State pursuant to Sections 801.1, 801.2, and 801.3 of the SSUTA, and are listed in Exhibit E, Section 1 to this Agreement. TaxCloud Member States may also include states which would ordinarily be considered a TaxCloud Advisory State because they have not achieved the requirements under SSUTA to qualify as a Member State, Contingent Member State, or Associate Member State pursuant to the SSUTA, but instead have (a) established an agreement with FedTax to enable FedTax to provide services effectively equivalent to those of a Certified Service Provider (or "CSP") as defined by the SSUTA; and (b) have either: (i) verified and certified the Critical Sales Tax Data relied upon by the TaxCloud Service to accurately calculate Sales Taxes for all of that state's Tax Jurisdictions of Record; or (ii) have prepared and published the necessary Critical Sales Tax Data in a format acceptable to FedTax which can be relied upon by the TaxCloud Service to accurately calculate Sales Taxes for all of that state's Tax Jurisdictions of Record, provided such state also agrees to maintain and reissue such Critical Sales Tax Data as necessary to reflect any changes or modifications to that states applicable sales and use tax laws. For TaxCloud Member States, FedTax will take audit responsibility and provide indemnification with regard to rate information.
- 1.18 "Critical Sales Tax Data" means SSUTA member states provided sales tax rates, boundaries and taxability information.
- 1.19 "TaxCloud Advisory State" mean any state which is a Streamlined Sales and Use Tax Agreement Advisor Member State pursuant to Section 801.4 of the SSUTA and are listed in Exhibit E, Section 2. For TaxCloud Advisory States, FedTax will not take audit responsibility nor provide indemnification with regard to rate information. All rates and reports should be considered by the Merchant to be advisory.
- 1.20 "ACH" means the Automated Clearing House financial network for processing electronic funds transfers.
- 1.21 "TaxCloud Lookup" means any Merchant invocation of the TaxCloud API for determination of tax rate or amount information for at least one product or service, as identified by Merchant through the use of applicable Taxability Information Code in accordance with the TaxCloud API documentation embodied by the Operating Procedures and User Guide, and any other documentation which may be made available by FedTax.
- 1.22 "TaxCloud Transaction" means any TaxCloud Lookup which results from a purchase by a Merchant customer where the Merchant has implemented the post-purchase required settlement TaxCloud API invocations, pursuant to the TaxCloud API documentation embodied by the Operating Procedures and User Guide, and other documentation which may be made available by FedTax.
- 1.23 "Refund of Sales Tax" means circumstances where a customer of Merchant returns a product or service, or is otherwise issued a credit by Merchant resulting in the refund of the sales tax to the customer.
- 1.24 "TaxCloud Return" means periodic state by state sales tax returns filed or otherwise reported by the TaxCloud Service based upon Tax Remittances Due to the Tax Jurisdictions of Record in the respective TaxCloud Member States related Merchant's TaxCloud Transactions.
- 1.25 "Sales Tax Return" means TaxCloud Return.
- 1.26 "Fee Schedule" indicates the list of fees and charges (if any are applicable) to be paid by Merchant to FedTax as detailed in Exhibit A.
- 1.27 "Merchant Service Provider" means any third party through whom FedTax may provide the TaxCloud Service to Merchant, including, but not limited to, a reseller, independent service organization, application service provider, Merchant aggregator, and acquiring bank.
- 1.29 "Effective Date" means the date that Merchant executes the Agreement, whether in writing or via online acceptance.1.29.
- 2. Merchant's Capacity and Related Matters.
By submitting a Merchant Registration, Merchant represents and warrants that (a) Merchant (or the person executing this Agreement on behalf of Merchant) is 18 years of age or older, (b) all information Merchant has provided to FedTax is true and correct in all respects, and (c) Merchant will update FedTax via the Merchant Interface with any changes to information Merchant has previously supplied. Merchant hereby authorizes FedTax to investigate and confirm the information submitted by Merchant herein. For this purpose, FedTax may utilize credit bureau / reporting agencies and/or its own agents. Upon Merchant's request, FedTax will provide Merchant with a copy of the results of such investigation. FedTax reserves its right to refuse to provide Merchant with the TaxCloud Service, with or without notice, for any or no reason, including, without limitation, if Merchant has supplied any information which is misleading, untrue, inaccurate or incomplete. Merchant expressly acknowledges and agrees that FedTax may share information about it and its account with Merchant Service Providers.
- 3. Undertakings of FedTax
- 3.1. Grant of Rights.
FedTax hereby grants Merchant a nonexclusive and non-transferable right, during the effective term of this Agreement, to use the TaxCloud Service subject to the restrictions herein and any other restrictions communicated by FedTax to Merchant. Merchant is provided no other right to use the TaxCloud Service or the TaxCloud API except as is expressly provided by this Agreement. Without limiting the generality of the foregoing, Merchant will not directly or indirectly access or use the TaxCloud Service in violation of or contrary to the Operating Procedures and User Guide or the terms of this Agreement.
- 3.2. TaxCloud Service.
Subject to any and all applicable laws and regulations, FedTax shall provide the TaxCloud Service to Merchant in all material respects in accordance with the terms of this Agreement and all generally applicable guidelines or procedures, including, but not limited to, the Operating Procedures and User Guide, and the SSUTA.
- 3.3. Customer Service.
If Merchant is current in payment of all fees owing (if any) to FedTax and is otherwise not in default under this Agreement, FedTax shall provide customer service to Merchant by email via <email@example.com>.
- 4. Undertakings of Merchant.
- 4.1. Login ID and Password.
In connection with the rights described in Section 3.1, Merchant is required to supply a true and valid email address to be used as Merchant's Login ID to access the Merchant Interface. Merchant must also specify a secure Password and agrees not to share or reveal these credentials to anyone, for any reason or purpose. Merchant understands and acknowledges that every access to the Merchant Interface creates an auditable event of record (which is tracked on a per-Login ID basis) related to Merchant's use of the TaxCloud Service. Merchant further acknowledges and understands that Merchant may invite Merchant's employees and agents to access and use the TaxCloud Service by providing the invitee's true and correct email address through the Merchant Contacts area of the TaxCloud Merchant Interface. Merchant is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other access codes that may be issued to Merchant or Merchant's employees or agents by the TaxCloud Service for purposes of giving Merchant access to the TaxCloud Service and TaxCloud API. Merchant is responsible for the results of using the TaxCloud Service for the accuracy and adequacy of the data Merchant provides to FedTax. FedTax shall be entitled to rely on information it receives from Merchant and may assume that all such information was transmitted by or on behalf of Merchant.
- 4.2. Review and Approval of TaxCloud Returns.
Merchant agrees to return to the TaxCloud Merchant Interface before the first business day following the tenth (10th) day of the month in order to a) review TaxCloud Transactions, Sales Taxes, and Tax Remittances Due for the previous monthly period, and b) upload or manually enter any additional TaxCloud Transaction not previously reported to TaxCloud, and c) approve TaxCloud Returns, as prepared, for any Jurisdiction(s) of Record. In the event that Merchant fails to review and approve TaxCloud Returns for any reason, Merchant understands and agrees that TaxCloud will automatically file such TaxCloud Returns on behalf of Merchant in a timely manner.
- 4.3. Risk Management.
Merchant is solely responsible for all acts and omissions of its officers, directors, partners, employees, agents, representatives, contractors, and third party service providers, including persons granted signature authority on Customer's accounts and personnel who are permitted to initiate and/or give FedTax instructions regarding Customer's entries (collectively, "Merchant Personnel"). FedTax is entitled, without further inquiry or investigation, to assume that the actions of Merchant Personnel are appropriate and authorized by Merchant. This authorization will remain in effect unless FedTax receives written notice to the contrary from Merchant and has a reasonable opportunity to react thereto.
- 5. Relationship to States.
FEDTAX HAS ENTERED INTO CONTRACTS WITH THE GOVERNING BOARD ESTABLISHED UNDER THE STREAMLINED SALES AND USE TAX AGREEMENT. AS A PREREQUISITE TO ENTERING INTO THIS CONTRACT FEDTAX HAS CREATED A TAX CALCULATION SYSTEM SATISFACTORY TO AND CERTIFIED BY THE GOVERNING BOARD. IN ADDITION FEDTAX HAS ASSUMED CERTAIN OTHER RESPONSIBILITIES AND OBLIGATIONS AS SET FORTH IN ITS CONTRACTS WITH THE GOVERNING BOARD, THE STREAMLINED SALES AND USE TAX AGREEMENT AND THE LAWS OF THE STATES THAT ARE MEMBERS OF THE GOVERNING BOARD. AS PROVIDED IN THE CONTRACTS BETWEEN FEDTAX AND THE GOVERNING BOARD, FEDTAX IS AUTHORIZED TO REPRESENT ITSELF AS A "CERTIFIED SERVICE PROVIDER" AND SERVE AS AN AGENT FOR SELLERS WHO DESIRE TO REGISTER AND PARTICIPATE IN THE STREAMLINED SALES AND USE TAX AGREEMENT. NOTHING IN THE CONTRACT BETWEEN THE GOVERNING BOARD AND FEDTAX OR THE STREAMLINED SALES USE TAX AGREEMENT ESTABLISHES ANY RIGHT OR ENTITLEMENT IN SELLERS CONTRACTING WITH FEDTAX. A SELLER’S RIGHTS AND ENTITLEMENTS WITH RESPECT TO FEDTAX ARE ESTABLISHED AND GOVERNED BY THIS CONTRACT WITH FEDTAX. A SELLER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO ANY OF THE MEMBER STATES ARE DETERMINED BY THE LAWS OF EACH MEMBER STATE.
- 5.1. Settlement of Tax Collections.
On a periodic basis, as defined in Exhibit B, FedTax will charge an account established by the Merchant for Tax Remittances Due related to Sales Tax collected by the Merchant from Merchant's customers. Merchant authorizes FedTax to access Merchant’s depository account via the ACH account(s) which are required information during Merchant Registration. FedTax shall debit the Merchant’s ACH processing account for the amount of Tax Remittances Due based on the Operating Procedures and User Guide. When a customer of Merchant returns an item which was the subject of a TaxCloud Transaction and which Tax Remittance Due, FedTax shall apply a sales tax credit to the Merchant’s TaxCloud Service account and will be reflected in the Tax Remittances Due in the next periodic Sales Tax Return on the basis of net due for the Tax Jurisdictions of Record, as detailed in the Operating Procedures and User Guide.
- 5.2. Tax Remittances Due.
Merchant hereby authorizes FedTax to either initiate transaction entries to Merchant's depository account number listed in Merchant's Merchant Registration (and as those numbers may be changed, any new account numbers provided to FedTax) without additional authorization or consent for any balance due FedTax, including amounts due associated with TaxCloud Transactions, Sales Taxes, Tax Remittances Due, and service fees (if any are applicable) set forth in the Fee Schedule attached hereto as Exhibit A.
- 5.3. Taxability Information Codes.
Merchant must conform with the Taxability Information Codes systems and policies specified in the Operating Procedures and User Guide.
- 5.4. Expenses.
Merchant agrees to pay all costs and expenses of whatever nature, including attorneys' fees and other costs and legal expenses, incurred by or on behalf of FedTax in connection with the collection of all Tax Remittances Due and fees as described in the Fee Schedule which go unpaid by Merchant for any reason.
- 5.5. Uniform Power of Attorney.
MERCHANT HEREBY APPOINTS FEDTAX AS AN AGENT (ATTORNEY-IN-FACT) TO ACT FOR MERCHANT IN ANY LAWFUL WAY, BUT ONLY WITH RESPECT TO SALES TAX MATTERS IN ANY TAX JURISDICTION(S) OF RECORD. This Uniform Power of Attorney shall be effective upon the Effective Date and will continue throughout the Term of this Agreement. Merchant agrees that any Tax Jurisdictions of Record who receives a copy of this Agreement including the Uniform Power of Attorney may act under it. Revocation of this Uniform Power of Attorney is not effective as to a Tax Jurisdiction of Record until the Tax Jurisdiction of Record has actual knowledge of the revocation. Merchant agrees to indemnify the Tax Jurisdiction of Record for any claims that arise against the Tax Jurisdiction of Record because of reliance on this Uniform Power of Attorney. Some states do not allow Uniform Power of Attorney such as this one, and in such circumstances Merchant also agrees that upon receiving written notice by FedTax, Merchant will immediately provide to a duly witnessed and notarized copy of this Agreement, with initials next to this Uniform Power of Attorney Section 5.5. BY ACTING UNDER THIS APPOINTMENT, FEDTAX ASSUMES FIDUCIARY AND LEGAL RESPONSIBILITIES OF AN AGENT.
- 5.6. Compliance with Laws, Operating Procedures, and FedTax Guidelines.
- 5.6.1. Compliance.
In connection with the exercise of Merchant's rights and obligations under this Agreement (including, without limitation, any related to individual privacy), Merchant warrants that it will comply, at Merchant's own expense, with all applicable laws (including Sales Tax laws as defined by Tax Jurisdictions of Record for all TaxCloud Transactions), regulations, rules, ordinances and orders of governmental and governing authorities having jurisdiction, including, but not limited to, the Gramm Leach Bliley Act, the Operating Procedures and User Guide, the Electronic Fund Transfer Act, Federal Reserve Regulation E, the Fair Credit Reporting Act, all rules and operating guidelines of the National Automated Clearing House Association ("NACHA") and similar state laws and regulations, to the extent the same may be applicable to the ACH transactions processed hereunder. Merchant shall comply with sanctions enforced by the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC), including trade embargoes, antimoney laundering, and terrorism controls. Information regarding such sanctions may be found at http://www.treas.gov/ofac/ or the OFAC Compliance Hotline at (800) 540-OFAC
- 5.6.2. Bona Fide Transactions.
Merchant agrees that all TaxCloud Transactions are the result of bona fide business transactions between Merchant and its customers and no such entries are, directly or indirectly, for the benefit of any third party whether in a service bureau or other context.
- 5.6.3. Other Compliance.
Merchant is prohibited from using the TaxCloud Service in any manner or in furtherance of any activity that constitutes a violation of any law or regulation or that may reasonably be expected to subject FedTax or its suppliers or vendors to investigation, prosecution or legal action.
- 5.6.4. FedTax Policies.
Merchant shall comply with all current policies, procedures, and guidelines of FedTax governing the TaxCloud Service, including, but not limited to, the Operating Procedures and User Guide and the FedTax Terms of Service. FedTax reserves the right to amend, modify or change such policies, procedures, and guidelines, at any time and with notice as provided for in Section 14.4.
- 5.6.5. Exempt Entities.
Merchant agrees to provide FedTax information on Exempt Entities as specified in the Operating Procedures and User Guide.
- 5.6.6. Error Resolution.
Merchant further agrees to respond to and resolve all Customer-alleged errors at its expense under this Agreement, and in accordance with all applicable laws and regulations.
- 5.6.7. Record Retention; Inspection Rights.
Merchant shall preserve all records pertaining to sales and Sales Tax, Exempt Entities and ACH transactions as may be required by law and in no event less than three (3) years from the date of creation. As a Certified Service Provider, FedTax accepts liability for audits, except in situations of fraud or misrepresentation by Merchant, by any and all Tax Jurisdictions of Record, as detailed in Exhibit E, Section 3 and Merchant will have records relevant to such audits. Merchant shall provide FedTax with responses to requests for information and/or copies of any requested information, electronically or otherwise, no later than forty-eight (48) hours from the date of FedTax's request. Merchant also agrees to execute, file and record any statements, notices and certificates as FedTax may reasonably request to preserve and protect its interest.
- 5.6.8. Additional Financial Documents.
FedTax reserves the right to require additional financial documents from Merchant if State tax codes place similar requirements on FedTax.
- 5.7. Notifications & Information Updates.
Merchant is responsible for returning to the Merchant Interface no less than monthly for the purposes of: (i) reviewing all Sales Tax Returns prepared by the TaxCloud Service in advance submission to Tax Jurisdictions of Record, (ii) reviewing and maintaining the accuracy and completeness of all Merchant Registration information (including methods of payment), and (iii) Reviewing, and when necessary, updating information required by states including but not limited to periodic attestation(s) regarding changes in status related to activities of the Merchant which may establish nexus for Merchant in any of the Tax Jurisdictions of Record. Merchant is expected to perform this update by the 10th of every month. Ongoing, systematic, and repeated failures to respond by the specified monthly date will be considered a willful breach and default under this Agreement.
- 5.8. Exclusive Use of FedTax.
Merchant agrees to use the TaxCloud Service exclusively for states participating as full members in the SSUTA. This requirement is based on state requirements that there can be one and only one sales tax return filed in any particular Tax Jurisdictions of Record Tax for any Merchant. Exhibit E, Section 3, which is subject to change, lists the SSUTA members, and those SSUTA members where Merchant has configured TaxCloud to indicate the Tax Jurisdictions of Record and authorized FedTax to collect and remit Tax Remittances Due.
- 6. Data Collection, Privacy and Security.
- 6.1. Merchant Obligations
- 6.1.1. Merchant is solely responsible for the security of data residing on the servers of Merchant, or a third party designated by Merchant (e.g., a Web hosting company, processor, or other service provider), including all sales tax information. Merchant shall comply with all applicable laws and regulations governing the collection, retention and use by Merchant of all data associated with TaxCloud Transactions. Merchant agrees to provide notice to consumers on Merchant's Internet Web site transaction page(s) disclosing how and why personal information is collected and used. Merchant is solely responsible for obtaining and maintaining any and all necessary rights, power and authority to provide data associated with TaxCloud Transactions to FedTax.
- 6.1.2. Merchant agrees to comply with all FedTax security protocols and security advisories in effect during the term of this Agreement. Merchant is solely responsible for verifying the accuracy and completeness of all TaxCloud Transactions submitted to the TaxCloud Service. Merchant acknowledges that FedTax shall not be liable for any improperly processed or unauthorized TaxCloud Transactions, or any illegal or fraudulent access to Merchant's account or data. FedTax's liability for improperly processed or unauthorized Transactions solely attributable to the negligence of FedTax is limited pursuant to Section 13.
- 6.1.3. Merchant will comply with all then-current legal obligations and guidelines, including, without limitation, those issued by all relevant taxing authorities (federal, state & local) and the Federal Trade Commission, associated with the collection, security, dissemination and destruction of data on its Web site. Merchant warrants that it has taken such precautions as are necessary to ensure that its server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Merchant's system is breached and an unauthorized third party has access to or has accessed data or transaction data, Merchant shall notify FedTax promptly of such breach and shall take such precautions as may be necessary to remedy and prevent such breaches from occurring in the future.
- 6.2. FedTax Obligations.
For those states listed in Exhibit E, Section 3, FedTax agrees to undertake, on behalf of Merchant, all functions and services mandated of a Certified Service Provider under the terms of the SSUTA, each Member State’s or Associate Member State’s laws, the Streamlined Sales Tax Governing Board, Inc. Rules and Procedures, all interpretations of the SSUTA issued by the Governing Board pursuant to Section 902 of the SSUTA and Rule 902 of the Streamlined Sales Tax Governing Board, Inc Rules and Procedures.
- 7. Fees.
Merchant shall pay FedTax the service fees (if any are applicable) set forth in the Fee Schedule attached hereto as Exhibit A.
- 7.1. Tax Remittances. Merchant hereby authorizes FedTax to either initiate transaction entries to Merchant's depository account number listed in Merchant's Merchant Registration (and as those numbers may be changed, any new account numbers provided to FedTax) without additional authorization or consent for any fees as described in Exhibit A, and any amounts due to Tax Jurisdictions of Record related to Merchant’s preceding tax period TaxCloud Transactions, Sales Taxes, and Tax Remittances Due. FedTax will remit these Sales Tax sums to the respective states according to the terms of the SSUTA, each Member State’s or Associate Member State’s laws, the Streamlined Sales Tax Governing Board, Inc. Rules and Procedures, all interpretations of the SSUTA issued by the Governing Board pursuant to Section 902 of the SSUTA and Rule 902 of the Streamlined Sales Tax Governing Board, Inc Rules and Procedures.
- 7.2. Payment Terms.
- 7.2.1. Billing Terms.
Merchant shall remit any and all amounts which are payable to FedTax under this Agreement (including, but not limited to, Tax Remittances Due and any Fees) no less frequently than monthly in accordance with Exhibit B. All monthly payments are due on the first day of the month immediately following the Effective Date. Merchant hereby authorizes FedTax to initiate transaction entries to Merchant's account as specified in the Merchant Registration. The Merchant authorizations provided here and in sections 5.1, 5.2, and 5.4 to initiate transactions to Merchant's depositories account are to remain in full force and effect until FedTax has received written notification from Merchant of its request for termination in adequate time to afford FedTax and Merchant's depository institution a commercially reasonable opportunity to acknowledge and respond to the request.
- 7.2.2. Payment Methods Maintenance.
If Merchant's depository account number(s) change, Merchant shall promptly update the relevant payment profiles indicated in the Merchant Registration available via the Merchant Interface. If Merchant fails to maintain their Merchant Registration with accurate current depository accounts, FedTax may suspend the TaxCloud Service for Merchant until such information is provided to FedTax. Although TaxCloud Service will attempt to apply any changes to payment methods immediately, there can be no assurance such modifications will be effected until the following billing month in which such payment method was modified. Any amounts due to FedTax under this Agreement and not paid when due will be subject to a finance charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such finance charges will not excuse or cure any breach or default for late payment. FedTax may accept any payment from Merchant without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any payment or any correspondence accompanying any payment or elsewhere will be construed as an accord or satisfaction. Merchant agrees to pay all costs and expenses of whatever nature, including attorneys' fees, incurred by or on behalf of FedTax in connection with the collection of any unpaid charges and fees.
- 7.3. Non-Sufficient Fund Fee, Late Fee, and Service Reactivation Fee.
- 7.3.1. Non-Sufficient Fund Fee
Merchant shall pay to FedTax a Non-Sufficient Fund Fee, in the amount set forth in the TaxCloud Fee Schedule, each time FedTax attempts to charge Merchant's depository accounts for any amounts owing under this Agreement and receives a Non-Sufficient Funds (NSF) or an invalid account message from Merchant's bank.
- 7.3.2. Late Fee - Delinquent TaxCloud Transactions
If Merchant does not upload or manually enter all additional TaxCloud Transactions on or before the first business date following the tenth (10th) day of the month, Merchant will be subject to a Late Fee, in the amount set forth in the TaxCloud Fee Schedule.
- 7.3.3. Late Fee - Delinquent Sales Tax Proceeds
If Merchant does not pay owing amounts on or before the first business day following the tenth (10th) day of the month, Merchant will be subject to a Late Fee, in the amount set forth in the TaxCloud Fee Schedule.
- 7.3.4. Service Reactivation Fee
In the event FedTax has suspended the TaxCloud Service to Merchant for failure to pay pursuant to Section 9.2, FedTax agrees to restore Merchant's access to the TaxCloud Service if Merchant subsequently pays in full all owing fees and charges, including a Service Reactivation Fee in the amount set forth in the TaxCloud Fee Schedule.
- 8. Term.
This Agreement shall commence on the date Merchant executes this Agreement, whether in writing or via online acceptance, (the "Effective Date") and remain in full force and effect until terminated by either party pursuant to Section.
- 9. Termination.
- 9.1. Termination At Will.
Either party may terminate this Agreement at any time and for any reason by providing ninety (90) days prior written notice to the other party. Merchant acknowledges that FedTax may immediately terminate this Agreement: (i) if it has reasonable evidence of Merchant's fraudulent or illegal use of the Services; (ii) as required by legal or regulatory authority; (iii) as a result of Merchant's breach of any representations or warranties contained herein; (iv) if, in its sole opinion, any information contained in the Merchant Registration is found or believed to be inaccurate or false; (v) for violation of this Terms of Service; or (vi) as a result of a Force Majeure Event.
- 9.2. Termination for Cause; Suspension of Service.
In addition to any other termination rights granted by this Agreement, FedTax may terminate this Agreement on ten (10) days written notice for material breach by the Merchant of any obligations hereunder unless such breach is cured within such ten (10) day period. FedTax may immediately terminate this Agreement and/or suspend Merchant's sales tax calculation, reporting, and remittance capabilities via the TaxCloud Service, upon written notice, for failure of Merchant to pay all amounts due and owing to FedTax. If FedTax suspends the TaxCloud Service, FedTax (i) shall have no obligation to resume the service until the causes of such suspension are remedied to FedTax's satisfaction and (ii) reserves the right to terminate this Agreement at any time.
- 9.3. Effect of Termination.
Upon termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that: (a) all accrued payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the parties under Sections 1, 5 through 11, 14, 15, 16, and 19 through 23 shall survive such termination. Upon termination of the effective term of this Agreement for any reason, FedTax will immediately suspend all TaxCloud Services on behalf of Merchant, and will also notify the SSUTA Governing Board that TaxCloud is no longer the CSP of record for Merchant.
- 10. Intellectual Property and Confidentiality.
- 10.1. FedTax.
The parties agree that FedTax owns and retains all right, title and interest in and to the FedTax Marks, TaxCloud Trademarks and any related technology utilized under or in connection with this Agreement, including, but not limited to, all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Merchant or any other entity or person under this Agreement. Merchant will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the TaxCloud Services or related technology.
- 10.2. FedTax Trademarks License.
Subject to the terms and conditions contained herein, FedTax hereby grants to Merchant the right to use, reproduce, publish, perform and display the FedTax Trademarks (as defined by the TaxCloud Logo Specifications referenced in Exhibit C): (a) on Merchant's Web site; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the TaxCloud Services.
- 10.3. Merchant Trademarks License.
Subject to the terms and conditions contained herein, Merchant hereby grants to FedTax and its affiliates the right to use, reproduce, publish, perform and display Merchant Trademarks specified in Merchant's Merchant Registration: (a) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the TaxCloud Services offered and/or accessible through the Merchant Interface; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the TaxCloud Services.
- 10.4. Use of Trademarks.
Each party shall strictly comply with all standards with respect to the other party's Trademarks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Each party hereby acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
- 10.5. Use the appropriate registered trademark ® or pending trademark ™ Symbol.
Merchant must reproduce any FedTax Trademarks exactly as shown on the TaxCloud Logo Specification, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.
- 10.6. Provide Appropriate Trademark Attribution.
Merchant must include a statement of ownership when displaying or reproducing any FedTax Marks. The statement should read: "FEDTAX, the FedTax logo, TAXCLOUD, and the TaxCloud logo, are trademarks or registered trademarks of FedTax." If it is not feasible to include the attribution statement, it is acceptable to use a general-purpose attribution statement in a form such the following: "All other trademarks are the property of their respective owners."
- 10.7. Trademarks and Domain Registration.
Merchant shall not use, register or attempt to register any: (a) FedTax Marks; or (b) trademarks or domain names that are confusingly similar to any of the FedTax Trademarks or the Domain.
- 10.8. Trademark Restrictions.
Merchant shall not (a) use the FedTax Trademarks except as expressly authorized in this Agreement; and (b) take any actions inconsistent with FedTax's ownership of the FedTax Trademarks and any associated registrations, or attack the validity of the FedTax Marks, its ownership thereof, or any of the terms of this Agreement; (iii) use the FedTax Trademarks in any manner that would indicate it is using such FedTax Trademarks other than as a licensee of FedTax; nor (iv) assist any third party to do any of the same.
- 10.9. Further Assurances.
Each party shall take, at the other party's expense, such action (including, without limitation, execution of affidavits or other documents) as the other party may reasonably request to effect, perfect or confirm such other party's ownership interests and other rights as set forth in this Section 10.
- 10.10. Confidential Information.
Merchant agrees to hold all information communicated by FedTax to it, whether written or oral or in any media whatsoever (the "Confidential Information"), in strict confidence, not to disclose, distribute or disseminate the Confidential Information or information derived therefrom in any way or in any form (electronic or otherwise) to any third party and not to use the Confidential Information for Merchant's own benefit or the benefit of others, or for any purpose except in connection with the purposes of this Agreement. Merchant agrees to use its best efforts to protect all Confidential Information and in any event, to take precautions at least as great as those taken to protect Merchant's own information of a similar nature. Upon FedTax's request, Merchant will return all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information. Merchant acknowledges that breach of this provision may result in irreparable harm to FedTax, for which money damages may be an insufficient remedy, and therefore FedTax will be entitled to seek injunctive relief to enforce the provisions of this Section 10.
- 11. Representations and Warranties.
- 11.1. Mutual Warranties.
Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party's obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use, its respective Trademarks (as defined in Merchant's Merchant Registration), and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party.
- 11.2. FedTax Warranties.
- 11.2.1. During the effective term of this Agreement, FedTax represents and warrants that the TaxCloud Services will conform in all material respects to the Operating Procedures and User Guide, as may be amended from time to time. The preceding warranty will not apply if: (i) any TaxCloud Services or products provided hereunder are used in material variation with this Agreement or the applicable documentation; (ii) any TaxCloud Services or products have been modified without the prior written consent of FedTax; or (iii) a defect in TaxCloud Services or products has been caused by any of Merchant's malfunctioning equipment or software. Merchant expressly acknowledges that the TaxCloud Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.
- 11.2.2. In the event Merchant discovers that the TaxCloud Services are not in conformance with the representations and warranties made in Section 11.2.1 and reports such non-conformity to FedTax or if the TaxCloud Services are subject to outages, interruptions, attacks by third parties and delay occurrences, FedTax shall use commercially reasonable efforts to remedy material interruptions and will provide adjustments, repairs and replacements, within its capacity, that are necessary to enable the TaxCloud Services to perform their intended functions in a reasonable manner. Merchant acknowledges that FedTax does not warrant that such efforts will be successful. If FedTax's efforts are not successful, Merchant may terminate this Agreement in accordance with Section 9.1. The foregoing shall constitute Merchant's sole remedy, and FedTax's sole liability, in the event of interruption, outage or other delay occurrences in the TaxCloud Services. FedTax does not warrant the services of any third party, including, without limitation, the Merchant Service Provider, bank or any third-party processor.
- 11.2.3. DISCLAIMER. THE TAXCLOUD SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. FEDTAX DOES NOT REPRESENT OR WARRANT THAT THE TAXCLOUD SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE TAXCLOUD SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2.1, FEDTAX SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE TAXCLOUD SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT FEDTAX SHALL BEAR NO RISK WITH RESPECT TO MERCHANT'S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD OR CHARGEBACKS.
- 11.3. MERCHANT UNDERSTANDS AND AGREES
THAT ALL MERCHANT COMPLAINTS AND CLAIMS CONCERNING THE TAXCLOUD SERVICES PROVIDED HEREUNDER ARE TO BE MADE SOLELY AND EXCLUSIVELY THROUGH FEDTAX.
- 11.4. Merchant Warranties.
Merchant represents and warrants that:
- 11.4.1. At all times during the term of this Agreement, its use of the TaxCloud Services will conform to specifications set forth in the Operating Procedures and User Guide and that all representations and statements made by it in this Agreement, or in any other document relating hereto by Merchant or on its behalf, are true, accurate and complete in all material respects;
- 11.4.2. Merchant is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which Merchant conducts business;
- 11.4.3. Merchant will comply with all laws, policies, guidelines, regulations, ordinances or rules applicable to Merchant, this Agreement, its business or the TaxCloud Transactions, including, without limitation:(i) all applicable state use tax laws including the proper use of Taxability Codes and (ii) the Gramm Leach Bliley Act.
- 11.5. Third-Party Software.
Merchant acknowledges that the TaxCloud Service is designed for use with third-party software systems and services, including, but not limited to, certain internet browser software programs and various e-commerce software platforms. Merchant will look solely to the developers and manufacturers of such programs and platforms with regard to warranty, maintenance or other support regarding the same. FedTax makes no warranty, express or implied, with regard to any such third-party software.
- 12. Indemnification
- 12.1. Indemnification by FedTax.
- 12.1.1. General.
FedTax shall defend, indemnify and hold Merchant, Merchant's affiliates, and any of their officers, directors, agents and employees harmless from and against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Merchant, arising out of or relating to: (a) any alleged breach by FedTax of any representation, warranty or obligation of FedTax set forth in Section 11; or (b) any alleged infringement of a U.S. patent or copyright of any other entity or person by the TaxCloud Service.
- 12.1.2. Limitation; Prevention of Infringement.
FedTax's obligations in Section 12.1.1(b) do not apply if the TaxCloud Service or portions or components thereof (a) are modified by persons or entities other than FedTax if the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by FedTax where the alleged infringement relates to such combination, or (c) continue to be used after FedTax has made a non-infringing version available to Merchant (collectively, "Merchant Faults"). If the TaxCloud Service or any component thereof becomes, or in FedTax's opinion is likely to become, the subject of a claim of infringement, then Merchant shall permit FedTax, at FedTax's sole option and expense, either to (i) procure for Merchant the right to continue using the TaxCloud Service as permitted in this Agreement, or (ii) replace or modify the affected TaxCloud Service or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, FedTax is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, as provided in Section 9.1. This Section 12.1 states the entire liability of FedTax to Merchant with respect to infringement of any intellectual property rights by the TaxCloud Service.
- 12.2. Indemnification by Merchant.
- 12.3. Indemnification Procedure.
The obligations of each party ("Indemnitor") under this Section 12 to defend, indemnify and hold harmless the other party ("Indemnitee") shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under Sections 12.1 and 12.2 to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) herein, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.
- 13. LIMITATIONS OF LIABILITY AND DISCLAIMERS.
- 13.1. LIMITATIONS.
UNDER NO CIRCUMSTANCES; (I) WILL FEDTAX OR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, SUBSIDIARIES, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL FEDTAX'S TOTAL LIABILITY TO MERCHANT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY FEDTAX SERVICES, EXCEED THE AGGREGATE COMPENSATION FEDTAX RECEIVED FOR PROVIDING THE TAXCLOUD SERVICES TO MERCHANT DURING THE THIRTY DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000, WHICHEVER IS LESS.
- 13.2. DISCLAIMER.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, MERCHANT EXPRESSLY AGREES THAT FEDTAX SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER ARISING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (I) MERCHANT'S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE ITS TAXCLOUD MERCHANT INTERFACE ACCOUNT; (II) FRAUDULENT TAXCLOUD TRANSACTIONS SUBMITTED BY MERCHANT TO THE TAXCLOUD SERVICE; (III) DISRUPTION OF THE TAXCLOUD SERVICE, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING, WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (V) UNAUTHORIZED ACCESS TO (A) DATA, CUSTOMER DATA (INCLUDING CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION), TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO FEDTAX, MERCHANT OR ANY THIRD PARTY AND/OR (B) THE TAXCLOUD SERVICE, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH; OR (VI) THE LIMITATION OF THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR SERVICE.
- 13.3. THIRD-PARTY SERVICES.
FEDTAX EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD-PARTY PRODUCT OR SERVICE.
- 14. General Provisions.
- 14.1. Publicity.
The parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party will have any obligation to do so. In addition, neither party will issue such publicity and general marketing communications concerning this relationship without the prior written consent of the other party (not to be unreasonably withheld or delayed).
- 14.2. Relationship of the Parties.
The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise.
- 14.3. Notices.
All notices to Merchant shall be given electronically, sent to the electronic mail address provided in Merchant's Merchant Registration with the TaxCloud Service and/or posted in the Announcement section of the Merchant Interface. All notices to FedTax shall be in writing and sent to the address of record for the Federal Tax Authority, as specified in Exhibit D. To cancel the TaxCloud Service, Merchant must either contact its Merchant Service Provider or send an email to <contracts@FedTax.net> with all information necessary to facilitate cancellation of its account, including, without limitation, name, TaxCloud Merchant ID, and phone number. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.
- 14.4. Amendment; Modifications.
No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by both parties, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Sales representatives or Merchant Service Providers of FedTax are not permitted to make any representation or warranty not contained herein and cannot waive, alter, or amend the printed terms and conditions hereof. Notwithstanding the foregoing, FedTax may amend this Agreement and any policy, guideline or procedure governing TaxCloud Transactions (including, but not limited to, the Operating Procedures and User Guide) at any time upon written or electronic notice to Merchant of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days' notice. If Merchant does not agree to such amendments, Merchant's sole remedy is to immediately terminate this Agreement upon written notice to FedTax.
- 14.5. Severability; Headings.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
- 14.6. Governing Law; Jurisdiction.
This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, without reference or giving effect to its conflicts of law principles. Merchant hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in King County, Washington, or such other venue and jurisdiction as FedTax in its sole discretion may select with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided in Section 14.11 below. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property, claims to recover outstanding amounts due FedTax and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.
- 14.7. Waiver.
The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
- 14.8. Assignment.
Merchant may not assign any of Merchant's rights or delegate the performance of any of Merchant's obligations under this Agreement without the prior written consent of FedTax.
- 14.9. Force Majeure.
FedTax will not be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions or termination of financial or ACH services to FedTax by any of FedTax's financial institutions, interruptions in telecommunications, utility, Internet, or network provider services, or other catastrophes or any other occurrences which are beyond FedTax's reasonable control (each a "Force Majeure Event"). If a Force Majeure Event arises, FedTax will provide Merchant notice of any such delay or interruption as soon as reasonably practicable and will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event. In no event will any failure to pay any monetary sum then due under this Agreement be excused for any Force Majeure Event.
- 14.10. Telephone Recording.
Merchant acknowledges, agrees and consents on behalf of itself, and its Agents, that FedTax may monitor and record any customer service telephone conversations at any time, without additional further notice to the parties of such conversations. The decision to record any conversation shall be solely in FedTax's discretion, and FedTax shall have no liability for failing to do so.
- 14.11. Order of Precedence.
The following order of precedence shall apply to the interpretation and application of this Agreement: (1) TaxCloud Service Agreement, (2) Operating Procedures and User Guide, and (3) other exhibits.
- 14.12. Entire Agreement.
This Agreement, including the Exhibits and Operating Procedures and User Guide, sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. Merchant acknowledges that this Agreement reflects an informed, voluntary allocation between FedTax and Merchant of all risks (both known and unknown) associated with the TaxCloud Service.
EXHIBIT A - FEE SCHEDULE
Monthly Service Fee (if not using automated compliance features for TaxCloud Member States)||$10.00 USD
|Returned ACH item for NSF or any other reason ||$ 100.00 USD
|Late Fee||$ 50.00 USD per state indicated in Exhibit E, Section 3
|Service Reactivation Fee||$ 500.00 USD
EXHIBIT B - REMITTANCE TIMING - Schedule for Remittance of Sales Taxes Due
FedTax shall charge the account of Merchant for full amount Tax Remittances Due as collected on a periodic basis based on the dollar volume.
|Sales Tax Volume||Remittance Schedule
|Up to $100,000||on the 1st day following the 30th day of the subject service period
|$100,001 to 500,000||on the 1st day following the 15th & 30th day of the subject service period
EXHIBIT C - TRADEMARKS
EXHIBIT D - Address of Record for FedTax
The Federal Tax Authority, LLC
ATTN: Legal Department
162 East Avenue, Third Floor
Norwalk, CT 06851
E.1 - "TaxCloud Member States" include any Member State, Contingent Member State, or Associate Member State pursuant to Sections 801.1, 801.2, and 801.3 of the SSUTA
|Nebraska||Nevada||New Jersey||North Carolina|
|North Dakota||Ohio||Oklahoma||Rhode Island|
E.2 - "TaxCloud Advisory States" mean any United States state or territory which is a not Streamlined Sales and Use Tax Agreement Advisor or Member State pursuant to Section 801.4 of the SSUTA
|New Mexico||New York||Pennsylvania||South Carolina
|Puerto Rico||U.S Virgin Islands||
E.3 - States for which Merchant has designated TaxCloud to collect Tax Remittances Due and file associated sales tax returns.
|Merchant specific setting available when logged into the TaxCloud merchant interface web site|
|E.4 - States for which Merchant has designated TaxCloud to provide TaxCloud Lookup and associated reports which will be used by Merchant to self prepare associated sales tax returns.|
|Merchant specific setting available when logged into the TaxCloud merchant interface web site|
AGREED ON BEHALF OF MERCHANT
Agreed Friday, July 31, 2015
by: [MERCHANT REPRESENTATIVE NAME]
Copyright 2015 by The Federal Tax Authority, LLC - FORM TOS 1.4.2