Thank you for selecting the GeoInvoice Expert Matrix(“GEM”). GEM is a GeoInvoice Service. These GeoInvoice Terms and Conditions located at GEM (these “Terms”) , together with any applicable Order Document(s) and applicable Supplemental Terms (collectively, the “Agreement”), constitute a binding agreement between GeoInvoice, Inc. (“GeoInvoice”) and Customer (each, a “Party”) under which GeoInvoice provides Customer access to GeoInvoice’s Services. Customer accepts and agrees to be bound by these Terms by executing an Order Document that references these Terms or by using GeoInvoice’s Services.
Unless otherwise defined in the Agreement, capitalized terms have the following meaning:
a. GeoInvoice Expert Matrix
“Item Classification” means the Service where GEM assigns codes to Customer’s items.
“GeoInvoice Expert Matrix” means the Service for determining whether individual services, equipment, materials or supplies are subject to sales and use or gross receipts tax, and for making certain other item determinations, in the jurisdictions identified in an Order Document.
“GeoInvoice Expert Matrix tax rates ” means the Service for determining tax rates for items. The tax rates output generated by GEM mobile application will be based on the tax sourcing rule for each item. If the item’s tax sourcing rule is based on the origination of the sale, then the tax rate will be based that jurisdiction’s origination sourcing rules and the most recent list of business locations provided by Customer in GEM account portal and maintained in its tax profile and Customer Data that is permitted by law to make sales. If the item’s sourcing rule is based on destination, then the tax rate will be based on that jurisdiction’s destination sourcing rules. You acknowledge and agree that GEM does not independently calculate your sales tax liability.
“Tax Item” means a service, equipment, materials or supplies that can be assigned a code (“Item ID Code”).
“Item ID Code” means the unique code of individual services, equipment, materials or supplies specified for a jurisdiction.
“Item Classification” is the assignment by GEM of an Item Code for a single specified jurisdiction based on the item’s attributes provided by Customer.
“Service Output” means the resulting output generated by a Service provided under these GEM Terms. The Service Output is delivered in the format specified herein for the applicable Service or, if not so specified, in a .csv file or other commercially reasonable format. If the applicable Service includes taxability determinations and GEM cannot make a taxability determination for items submitted by Customer, the Service Output will identify such items but will not include taxability information.
b. Other Defined Terms.
“Affiliate” means an entity that controls, is controlled by, or is under common control with a Party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
“Applicable Laws” means all applicable local, state, provincial, federal, and international laws and regulations.
“Authorized User” means any Representative or other person or entity acting on Customer’s behalf who is authorized by Customer to use the Services and who has been supplied with access to the Services either by Customer or by GeoInvoice at Customer’s written request.
“GeoInvoice Technology” means the technology and Intellectual Property used in providing the products and services offered by GeoInvoice, including computer software programs, connectors, websites, networks, and equipment. GeoInvoice Technology does not include Third-Party Applications.
“Customer” means the legal entity that executes an Order Document or uses the Services.
“Customer Data” means (i) any information, including Personal Information, uploaded, provided, or made accessible to GeoInvoice’s production systems by Customer or Authorized Users (or by GeoInvoice on behalf of Customer) to use the Services and (ii) the resulting Customer unique output that is returned by the Services to Customer.
“Document” is any record that is entered, uploaded, or otherwise recorded in the Services by Customer. Documents include, for example, committed sales invoices, purchase invoices, inventory transfer invoices, and return invoices. All such records will be considered Documents, regardless of the tax result generated by Field Service Tax
“Documentation” means GeoInvoice’s user guides, training manuals, and other similar information, as updated or revised by GeoInvoice from time to time, that Geoinvoice provides to Customer at the following location: Resources (or a successor site that GeoInvoice may designate from time to time).
“Expenses” means any reasonable, preapproved expenses described in an Order Document or otherwise as being reimbursable to Geoinvoice by Customer, that GeoInvoice actually incurs while providing Customer the Services. GeoInvoice’s reimbursable Expenses include (as applicable) postage fees, wire transfer fees, and other out-of-pocket administrative costs.
“Intellectual Property” means all trade secrets, Inventions, patents and patent applications, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such marks), trade names, trade dress, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
“Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery, or invention, whether or not copyrightable or patentable and whether or not reduced to practice.
“Order Document” means a Sales Order or other document used to purchase Services from GeoInvoice.
“Personal Information” means any information that relates to an identified or identifiable natural person or that reasonably could be used to identify that person, or other data or information defined as personal information under Applicable Law.
“Representative” means a director, officer, employee, consultant, advisor, representative, or agent of the subject party.
“Sales Order” means GeoInvoice’s sales order form that describes the Services and support plans ordered by Customer and the fees, certain Expenses, and other specified terms.
“Services” mean the Geoinvoice service offerings to which Customer subscribes, as specified in the applicable Order Document.
“Term” has the meaning provided in Section 6 of these Terms.“Third-Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties.
2. THE SERVICES
a. Use of the Services. GeoInvoice delivers “software as a service” Services and other Services on a subscription basis. Geoinvoice grants Customer a nonexclusive, non transferable, worldwide right to access and use the Services during the Term, solely for Customer’s internal business operations. GeoInvoice reserves all other rights. Customer shall not use any Services that are not set forth in an Order Document signed by Customer and accepted by GeoInvoice, except as otherwise provided in the Terms.
b. Mobile Application. The GEM Mobile App allows You to interface with certain of Your back office software solutions. The license granted to You for the Mobile App is limited to a limited, revocable, non-transferable license for You to use the object code of the Mobile App on one approved mobile device that You solely own or control and as permitted herein [by the Usage Rules set forth in the App Store Terms and Conditions (the “Usage Rules”) and the Google Play Store Terms and Conditions(the “Usage Rules”). To use the Mobile App, you need an approved, compatible mobile device. You agree that GEM may from time-to-time issue new versions of the Mobile App, which will be automatically upgraded on your mobile device, and that these Terms will apply to any such upgrades.
c. Customer’s Account. GeoInvoice shall enable an account for Customer to access the Service (“Account”). Customer shall designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users shall maintain the confidentiality of all usernames, passwords, access, and account information under their control. Except to the extent caused by GeoInvoice’s breach of the Agreement, including its obligations under Section 8 (Confidential Information), GeoInvoice is not responsible for unauthorized access to the Account. Customer shall contact GeoInvoice promptly if (i) Customer reasonably believes that the Account has been compromised, including any loss, theft, or unauthorized access, use, or disclosure of Account information or (ii) Customer becomes aware of any other breach of security in relation to Customer’s Account information or GeoInvoice’s Services that may have occurred or is reasonably likely to occur.
d. GeoInvoice’s Responsibilities. GeoInvoice shall: (i) track uptime statistics and, as applicable, provide status updates at status at www.geoinvoice.com or an equivalent replacement site; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (1) planned downtime (please note that GeoInvoice does not generally have planned downtime, but in the event that it ever needs to do so, such planned downtime will be scheduled with at least 7 days’ notice and scheduled at a time that is intended to minimize impact to GeoInvoice customers) and (2) any unavailability caused by circumstances beyond GeoInvoice’s reasonable control, including internet service provider failures or delays or denial of service attacks against which GeoInvoice maintains commercially reasonable prevention controls; (iii) provide its standard support for the Services to Customer at no additional charge, or upgraded support if purchased separately; and (iv) conduct its business in compliance with Applicable Laws.
e. Customer’s Responsibilities. Customer is responsible for (i) the accuracy and completeness of Customer’s initial and ongoing configuration and setup of the Services; (ii) ensuring that the Services are compatible with Customer’s business and systems requirements; (iii) the accuracy, quality, legality, completeness, and integrity of the Customer Data provided by Customer and the means by which Customer acquired it; and (iv) the provision, maintenance, and use of Customer’s hardware, network, internet connectivity, and software. Customer shall comply with the Acceptable Use Policy available at Compliance, with all Documentation, and with all Applicable Laws. Customer shall ensure that the Authorized Users and Representatives of Customer comply with all of Customer’s obligations under the Agreement, and Customer shall be responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
f. GeoInvoice Affiliates. GeoInvoice may perform the Services itself or through any of its Affiliates. When an Affiliate of GeoInvoice provides the Services, all applicable references to “GeoInvoice ” in the Agreement relating to provision of the Services are deemed to reference such Affiliate. GeoInvoice is responsible for its Affiliates’ compliance with the terms of the Agreement, and GeoInvoice shall be responsible for their acts and omissions relating to the Agreement as though they were those of GeoInvoice. Geoinvoice or its Affiliate may invoice Customer for the Services, and Customer shall pay all invoices to the GeoInvoice entity that issued the invoice. Customer shall bring any claims it may have solely against GeoInvoice and not against any GeoInvoice Affiliate providing or invoicing for the Service.g. Restrictions. Customer shall use the Services only as set forth in the Agreement and the Documentation, and not for the benefit of any third party. Customer shall not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the GeoInvoice Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the GeoInvoice Technology or Documentation; (iii) distribute or display any of the GeoInvoice Technology or Documentation other than to Customer’s Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to the Services (e)) or use the Services to operate any timesharing, service bureau, or similar business; (v) alter, destroy, or otherwise remove any proprietary notices within the GeoInvoice Technology or Documentation; or (vi) disclose the results of any benchmark tests to any third parties without GeoInvoice’s prior written consent.
3. PROPRIETARY RIGHTS
a. GeoInvoice’s Intellectual Property. GeoInvoice and GeoInvoice’s licensors retain and own all right, title, and interest in the Services, the GeoInvoice Technology, the Documentation, GeoInvoice’s Confidential Information, and all enhancements or improvements to, or derivative works of, the foregoing, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to the Customer any ownership interest in GeoInvoice’s Intellectual Property.
b. Suggestions. If Customer provides GeoInvoice with any suggested improvements to the Services then that suggestion is provided as is and Customer grants GeoInvoice a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such suggested improvements. Notwithstanding the foregoing, nothing in this Section 3(b) (Suggestions) grants Geoinvoice a license to use any Inventions covered by a registered patent owned by Customer.c. Customer’s Intellectual Property. Customer retains all ownership rights in Customer Data and Customer’s Confidential Information, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to GeoInvoice any ownership interest in or to the Customer Data or Customer’s Confidential Information, provided that GeoInvoice has the right to create Aggregate Data (as defined in Section 4(b)) and owns all right, title, and interest in Aggregate Data both during and after the terms of the Agreement. Customer shall ensure that it has all necessary rights and permissions required by Applicable Law to use and permit the use of Customer Data in accordance with the Agreement
4. PRIVACY AND SECURITY
b. Aggregate Data. GeoInvoice may create, generate, and use Aggregate Data for any lawful purpose. “Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple GeoInvoice customers (including Customer Data) for the purpose of expressing that information in summary form (for example, price index numbers are aggregated, in contrast to the price of a single commodity). Aggregate Data does not include any Personal Information relating to Customer, Customer’s clients, Authorized Users or customers, or other information that could reasonably identify or relate to a natural person.
c. Protection of Customer Data, Personal Information, and Confidential Information. Each Party is responsible for complying with Applicable Laws applicable to it, including applicable data protection legal requirements, for the purposes of the Agreement. GeoInvoice shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to, or publication of Customer Data, Confidential Information, or Personal Information. Geoinvoice shall implement processes and maintain procedures designed to comply with Applicable Laws and shall facilitate Customer’s compliance with its obligations for data security and response to individual data subject requests with respect to Personal Information in GeoInvoice’s possession or control, to the extent that Customer is required to comply with the following: (i) the Canadian Personal Information Protection and Electronic Documents Act; (ii) the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and implementing regulations (“CCPA”); (iii) any other existing or newly enacted Applicable Laws regarding privacy; and (iv) any amendments and successors to the foregoing. The Agreement and the Documentation are Customer’s instructions for processing Customer Data, and GeoInvoice shall not process Customer Data for any other purpose. GeoInvoice may use subcontractors to facilitate its obligations under the Agreement, and GeoInvoice shall be responsible for the acts and omissions of such subcontractors relating to the Agreement as though they were those of GeoInvoice. GeoInvoice shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Customer Data, Personal Information, or Customer’s Confidential Information.
d. CCPA Service Provider. If Geoinvoice processes Customer Data on behalf of Customer for the provision of the Services, the Parties acknowledge and agree that GeoInvoice is a “Service Provider” as defined in the CCPA, and Customer Data may include personal information, as that term is defined by the CCPA (“CCPA Personal Information”). GeoInvoice does not sell CCPA Personal Information. When Geoinvoice processes CCPA Personal Information for or on behalf of Customer, Geoinvoice collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in the Agreement, and for no other commercial purpose.e. Notice. GeoInvoice shall promptly notify Customer, as soon as reasonably practicable and not later than 72 hours from the time of confirmation by GeoInvoice, of unauthorized access, use, or disclosure of any Customer Data, Customer’s Confidential Information, or Personal Information under GeoInvoice’s control. GeoInvoice shall provide Customer with information regarding such incident as required by Applicable Law or as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Law. GeoInvoice shall use commercially reasonable efforts to: (i) identify the cause of the incident and (ii) remediate the cause of the incident within GeoInvoice’s systems, to the extent such remediation is within GeoInvoice’s reasonable control.
5. SERVICE SUSPENSION AND DISPUTES
a. Generally. As reasonably practicable under the circumstances, Geoinvoice shall endeavor to resolve together with Customer any circumstance that may give rise to GeoInvoice’s suspension rights, which include, for example, the following: (i) a material risk to the security or performance of the Services, the network, or any other GeoInvoice customer or business partner; (ii) use of the Services in violation of the Agreement; or (iii) Customer is delinquent in its payment obligations for any undisputed fees. In the case of payment delinquency, GeoInvoice shall notify Customer (including by phone or email to Customer’s business contact) at least 10 days before suspending the Service. For any other suspension, Geoinvoice shall make a good faith effort to contact and provide notice to Customer (including by phone or email to Customer’s business contact) in advance. Unless otherwise agreed in a signed writing, payment will be considered delinquent if not received within 15 days following the due date set forth on an invoice. GeoInvoice acknowledges that suspending Customer’s right to access or use all or part of the Services is a significant action, and therefore Geoinvoice shall not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to GeoInvoice’s right to suspend the Services. GeoInvoice shall also pursue other less drastic measures it deems appropriate, including collaborating with Customer to isolate the issue and escalating unresolved issues to senior management of Customer and Geoinvoice. GeoInvoice shall not erase any Customer Data during the suspension period.
b. Effect of Suspension. If GeoInvoice suspends Customer’s ability to access the Services, (i) Customer remains responsible for all fees and charges for suspended Services and for other Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to GeoInvoice’s error or omission. For a suspension of Customer’s Field Service Tax Account for delinquent payment, the Service will continue to return real-time tax calculation results.
c. Payment Disputes. Customers must assert any payment dispute in writing to GeoInvoice according to the instructions in the Documentation within 15 days after the due date of the invoice giving rise to the dispute. GeoInvoice shall not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
6. TERM AND TERMINATION
a. Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date of the Initial Subscription Term for the first Service purchased and ends on the date of termination or expiration of the final Subscription Term.
b. Subscription Terms. Customers may purchase subscriptions to one or more Services during the Term. The effective period (usually one month) of each subscription is a “Subscription Term” and, depending on the timing and agreed terms of the applicable Order Documents, those subscriptions may have different Subscription Terms. Each Initial Subscription Term begins on an “Effective Date,” which is either (1) the date Geoinvoice enters Customer’s Order Document into GeoInvoice’s billing system or (2) an alternate date mutually agreed by the Parties in writing. i
i. Initial Subscription Term. Customer’s initial Subscription Term for a Service (the “Initial Subscription Term”) is one month, which begins on the Effective Date and ends in 30 days from the Effective date, unless the Order Document specifies a different period.
ii. Automatic Renewal. At the end of the then-current Subscription Term, each subscription to a Service will automatically renew for an additional one-month period (a “Renewal Subscription Term”) unless (a) Customer provides written notice of non-renewal to GeoInvoice on or before the expiration date of the then current Subscription Term, or (b) GeoInvoice provides written notice of nonrenewal to Customer at least 60 days before such expiration date. Customers must submit a notice of non-renewal to email@example.com. Unless another payment method has been specified, GeoInvoice will charge Customer’s payment information on file for the Service fees for the Renewal Subscription Term.
c. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Service will be coterminous with the current Subscription Term. In the event of any upgrade, GeoInvoice will charge Customer’s payment information on file, unless another payment method is agreed, for the then-current applicable upgrade fee plus an amount equal to the prorated difference between the then-current Service fee and the upgraded Service fee. If Customer subscribes to an additional Service, the Subscription Term for that Service will begin on the Effective Date for that Service and Customer will be separately charged for the applicable activation and annual Service subscription fee for the additional Service. If Customer upgrades the tier of Service purchased or purchases an additional Service, then all Services to which Customer subscribes under these Terms will be subject to the then-current Terms.
d. Trial Period. During the Initial Subscription Term only, Customer may immediately terminate Customer’s subscription to any Service by sending an email to firstname.lastname@example.org within 60 days of the Effective Date. If Customer exercises Customer’s termination rights under this Section 6(d) (Trial Period), then GeoInvoice shall refund Customer the fees Customer paid to GeoInvoice for the terminated Services.
e. Termination for Breach or Cause. Either Party may terminate the Agreement or any affected Service by notice to the other Party (i) if the other Party materially breaches its obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of written notice of breach; or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. Material breach by Customer includes the following: (1) Customer is unable to resolve any issue leading to suspension of Customer’s Services because of the acts or omissions of Customer or its or their Authorized Users or Representatives within 30 days following notice of suspension; (2) Customer’s use of the Services in violation of Applicable Law. f. Consequences of Termination for Breach. If Customer terminates the Agreement or any Service as a result of GeoInvoice’s material breach, then GeoInvoice shall refund Customer a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees); provided, however, that if Customer was unable to use the Service as a result of GeoInvoice’s material breach, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service (or the date of Customer’s written notice of breach, if later). If GeoInvoice terminates the Agreement or any Service due to Customer’s material breach, GeoInvoice shall not refund any amounts to Customer.
f. General Effects of Termination. Upon any termination of the Agreement: (i) all of Customer’s rights under the Agreement immediately terminate (with the exception of those surviving termination, as described below); (ii) except as set forth in Section 6(d) (Trial Period) and Section 6(f) (Consequences for Termination for Breach), Customer remains liable for all fees, charges, expenses, and any other obligations Customer has incurred during the Subscription Term; and (iii) GeoInvoice shall destroy or overwrite Customer Data and Customer’s Confidential Information and Personal Information as provided in Section 6(h) (Return, Retention, and Deletion of Data). All provisions that by their nature should survive termination of this Agreement will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
g. Return, Retention, and Deletion of Data. Upon receipt of a request to return Customer Data at any time up to 60 days after termination of the Agreement or the applicable Service, GeoInvoice shall either (i) provide Customer with limited access to the Service, at no additional cost, solely for the purpose of retrieving Customer Data; or (ii) provide an export file of Customer Data stored on GeoInvoice’s systems in a commonly used format reasonably determined by GeoInvoice and subject to GeoInvoice’s standard fees for such export. GeoInvoice may, but shall have no obligation to, maintain or return Customer Data more than 60 days after termination of the Agreement. Upon request at any time during the Term or up to 60 days after the termination of the Agreement, GeoInvoice shall promptly destroy or overwrite Customer Data or Customer’s Confidential Information or Personal Information, other than Customer Data or Customer Confidential Information or Personal Information contained in automatic computer backups and historical archives or that must be retained to fulfill obligations under the Agreement for regulatory, legal, or audit purposes, or for compliance with GeoInvoice’s data retention policies. If no such request by Customer is made, GeoInvoice will destroy or overwrite Customer Data, Customer’s Confidential Information and Personal Information in accordance with GeoInvoice’s document retention policies and standard backup and archival procedures, after the data or information is no longer reasonably necessary to fulfill obligations under the Agreement, for regulatory, legal, or audit compliance or for other business or operational purposes. Customer Data and Customer Confidential Information and Personal Information retained in accordance with this Section will be subject to the confidentiality provisions of these Terms for as long as it is retained.h. Annual Increases. Unless otherwise agreed in writing, following the Initial Subscription Term, Service fees are subject to increases to the level of then-current standard pricing, which will become effective beginning upon the first day of each Renewal Subscription Term. GeoInvoice shall notify Customer of any increase at least 30 days prior to Customer’s Renewal Subscription Term. Such notice may be in the form of an invoice, or any other form of notice used by GeoInvoice to communicate with Customers. If Customer objects to the increase, then Customer may elect to not renew its order of Services. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or any additional Service that Customer orders; (ii) overage fees for usage more than Customer’s usage tier; and (iii) expiration of any discount or incentive programs to which Customer was previously entitled.
7. CONFIDENTIAL INFORMATION
a. Confidential Information. “Confidential Information” means all information designated by a Party as confidential, or given the circumstances, would reasonably be understood by the Recipient to be confidential, and that is disclosed by a Party or their respective Representatives (the “Discloser”) to the other Party or their respective Representatives (the “Recipient”), regardless of the form of disclosure. Confidential Information includes, with respect to GeoInvoice and its Affiliates, the GeoInvoice Technology and the Documentation, and with respect to Customer, all Customer Data and Customer Personal Information, and with respect to both the Discloser and Recipient, the non-public terms of the Agreement and all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, Inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the Discloser.
b. Exclusions. Confidential Information does not include information that the Recipient can establish: (i) (except with respect to Personal Information) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) has been rightfully received by the Recipient from a third party without confidentiality restrictions; (iii) is known to the Recipient without any restriction as to use or disclosure prior to first receipt by the Recipient from the Discloser; or (iv) has been independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
c. Disclosures Required by Law. If any Applicable Laws or judicial or administrative order requires the Recipient to disclose any of the Discloser’s Confidential Information (a “Disclosure Order”) then, if legally permitted, the Recipient shall promptly notify the Discloser in writing prior to making any such disclosure, to facilitate the Discloser’s efforts to protect its Confidential Information. Following such notification, the Recipient shall cooperate with the Discloser, at the Discloser’s reasonable expense, in seeking and obtaining protection for the Discloser’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Discloser, the Recipient is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the Recipient may disclose only that portion of the Confidential Information that is legally required to be disclosed and the Recipient shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
d. Restrictions on Use and Disclosure. The Recipient shall use Confidential Information of the Discloser solely to fulfill its obligations under the Agreement, to comply with Applicable Laws or as otherwise permitted under the Agreement. Subject to the permitted disclosures set forth in Section 8(c) (Disclosures Required by Law), the Recipient shall hold Confidential Information in strict confidence and shall not disclose or authorize the disclosure of Confidential Information to third parties except as otherwise permitted by the Agreement. The Recipient may disclose Confidential Information to a Representative or service provider on the condition that the Recipient: (i) ensures that such Representative or service provider is bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as these Terms and (ii) is fully responsible for such Representative’s or service provider’s disclosure and use of the Confidential Information and its compliance with the obligations of the Recipient under this Section. The Recipient shall protect Confidential Information of the Discloser from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature and shall not reverse engineer, decompile, or disassemble any such Confidential Information.e. Return of Confidential Information. GeoInvoice shall destroy or return Customer’s Confidential Information as provided in Section 6(h) (Return, Retention, and Deletion of Data).
8. FEES AND TAXES
a. Fees. Customer shall pay all fees specified in each Order Document. Customer will be invoiced based on the Order Document, including, if applicable, for usage-based fees. Except as otherwise specified in the Agreement: (i) fees are quoted and payable in the currency specified on the Order Document; and (ii) payment obligations are noncancelable, and fees paid are non-refundable. Unless otherwise agreed in writing, GeoInvoice will automatically charge Customer’s payment information on file for any renewals, upgrades, overage fees, and additional Services purchased.
b. Automatic Upgrades and Overages. If Customer’s Service fees include a usage tier, Customers may choose one of two options if Customer exceeds the usage tier for the applicable Service set forth in the Order Document: either payment of an overage charge or automatic upgrade to the next subscription tier. At any time prior to exceeding the applicable usage tier, Customer may change the selected option. The default choice is the automatic upgrade option. Overage fees for the Initial Subscription Term will be charged at the rate specified in the Order Document, and in any Renewal Subscription Term, GeoInvoice’s then-current overage rates will apply.
c. Subscription Plans. Customer’s subscription plan for the Services is specified in the applicable Order Document.d. Taxes. Customer is responsible for any applicable sales, use, excise, value-added, or similar taxes, levies, or duties payable with respect to Customer’s Order of Services assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Document, all fees, rates, and estimates exclude such taxes, levies, and duties. GeoInvoice is solely responsible for taxes based upon GeoInvoice’s net income, assets, payroll, property, and employees.
a. Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter and perform its obligations under the Agreement; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose.
b. GeoInvoice’s Warranties. GeoInvoice offers the following warranties for the Services:
i. GeoInvoice warrants to Customer that: (1) the GeoInvoice Technology GeoInvoice provides to Customer will perform in all material respects in accordance with its applicable, then-current Documentation; (2) GeoInvoice will not materially reduce a Service or its features or functionality during a Subscription Term (provided, however, that GeoInvoice may deprecate a Service or Service features or functionality upon expiration of a Subscription Term with at least 90 days’ written notice to Customer); and (3) GeoInvoice will use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the GeoInvoice Technology provided to Customer contains no computer virus, Trojan horse, worm, or other similar malicious code. GeoInvoice does not warrant that the GeoInvoice Technology is free from all bugs, errors, or omissions.
ii. If GeoInvoice fails to conform to any of the warranties in this Section 9(b) (GeoInvoice’s Warranties) and GeoInvoice does not render the GeoInvoice Technology conforming within 30 days of Customer’s written notice to GeoInvoice of the nonconformance, then, as Customer’s sole and exclusive remedy for any nonconformance, Customer may immediately terminate its subscription for the affected Service upon notice to GeoInvoice, and GeoInvoice shall refund Customer a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees). The refund will be calculated from the date that Customer notifies GeoInvoice of the nonconformance.
iii. The warranties in this Section 9(b) (GeoInvoice’s Warranties) do not apply to the extent that the Service, systems, or software have been modified by persons other than GeoInvoice’s employees or persons authorized by GeoInvoice.
iv. For the sake of clarity, any warranties for incorrect tax calculation or determination results or any other error in accuracy or timeliness of any Service are set forth in the Supplemental Terms for the applicable Service such as the Accuracy Guarantee covered in Section 13 and not covered by this Section 9. The warranties in the Agreement are for Customer’s sole benefit, and do not extend to any other person or entity.
c. Customer’s Warranties. Customer represents and warrants that: (i) the information Customer provides in connection with the Services, including billing information and purchase orders, is current, accurate, and complete; and (ii) Customer is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons; Her Majesty’s Treasury, Asset Freezing Unit’s Consolidated List of Financial Sanctions Targets; the European Union’s consolidated list of persons, groups, and entities subject to EU financial sanctions; or any similar list of embargoed or blocked persons applicable to persons or entities in the jurisdiction of Customer’s domicile or use of the Services.d. Disclaimer of Implied Warranties. Except as expressly provided in the Agreement, the Services are provided on an “as-is” and “as available” basis, and neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all implied warranties, including the implied warranties of merchantability and fitness for a particular purpose, to the maximum extent permitted by Applicable Laws.
a. Subject to the restrictions in this Section 11 (Modifications), GeoInvoice may modify these Terms, the Acceptable Use Policy, or any Supplemental Terms. If GeoInvoice modifies these Terms, the Acceptable Use Policy, or any Supplemental Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. Notwithstanding the previous sentence, GeoInvoice may not provide prior notice if modifications are necessary to comply with Applicable Laws but shall use commercially reasonable efforts to provide prior notice when practicable. If the modifications materially and adversely affect Customer, and Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Service by written notice to GeoInvoice within the 30-day period following the date of the Modification Notice, subject to the terms of this Section 11 (Modifications).
b. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Subscription Term, then the modifications will become effective for each Service affected by the changes upon renewal of such Service. Customer may avoid the applicability of the changes only by canceling the renewal of Customer’s subscription prior to commencement of the Renewal Subscription Term.
c. If the Modification Notice states that materially adverse modifications will become effective during the then-current Subscription Term, then Customer may terminate Customer’s subscription to the affected Service at any time within the 30-day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (i) the date on which Customer delivers a timely termination notice or (ii) the date on which the applicable modifications become effective, provided that, upon written request by Customer, GeoInvoice shall continue to provide such Service to Customer as needed to manage a reasonable transition to another vendor, not to exceed 60 days, and at GeoInvoice’s then-current rates for the affected Service. If Customer terminates a Service subscription pursuant to this Section 11(c), then GeoInvoice shall refund Customer a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term for the terminated Service (excluding any activation or other one-time fees).d. If Customer does not terminate the affected Service subscription as specified in this Section 11 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
a. Indemnification by GeoInvoice. GeoInvoice shall indemnify and defend Customer and Customer’s directors, officers, employees against any Losses incurred as a result of a third-party claim or action that (1) the use of the Service in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other Intellectual Property right of such third party (an “Infringement”); (2) results from GeoInvoice’s breach of its obligations under the Agreement; or (3) results from GeoInvoice’s violation of Applicable Laws. “Loss” means any liability, loss, settlement payment (including any settlement the Indemnitee agrees to pay, as long as it is in a written settlement approved by Indemnitor in writing), interest, award, judgment, damages (including punitive damages), fines, fees, penalties, filing fees and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses and charges resulting from the indemnified third-party claim.
i. If the Service is subject to a claim of Infringement and as a result, Customer’s use of the Service is enjoined, then GeoInvoice shall, at no cost to Customer, procure for Customer the right to continue using the Service or replace it with non-infringing or modified Services of materially equivalent functionality.
ii. If none of the above options are available on terms that are commercially reasonable for GeoInvoice, then GeoInvoice may terminate Customer’s right to access and use the Services that require the infringing Service, in which case GeoInvoice shall refund Customer a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term for the terminated Service(s) (excluding any activation or other one-time fees) provided, however, that if Customer was unable to use the Service as a result of the Infringement, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service.
iii. GeoInvoice has no obligation with respect to any actual or alleged Infringement to the extent that the Infringement is caused or alleged to be caused by (1) Customer Data; (2) use or modification of the Services other than as specified in the Documentation or the Agreement; or (3) combination of the Services with any products, software, services, data, or other materials not provided by GeoInvoice or approved by GeoInvoice in writing, if the Infringement would not have occurred but for such combination.
b. Indemnification by Customer. Customer shall indemnify and defend GeoInvoice and its Affiliates and their respective directors, officers, and employees against Losses incurred as a result of a third-party claim or action that (i) Customer’s use of the Services in breach of the Agreement infringes the Intellectual Property rights of a third party; (ii) results from Customer’s breach of its obligations under the Agreement; or (iii) results from Customer’s violation of Applicable Laws.
c. Process. The obligations of a Party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 10 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim within the scope of the Indemnitor’s defense or indemnity obligations set forth in the Agreement, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor shall be given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not make any admissions on the Indemnitee’s behalf or settle any such claim without Indemnitee’s approval unless the settlement unconditionally releases the Indemnitee of all liability, and except that the Indemnitee may participate in the defense of the claim at its sole cost and expense); and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim, at the Indemnitor’s expense.d. Exclusive Remedy. This Section 10 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to Infringement and any other type of third-party claim or action. This Section does not apply to any direct claims between the Parties. For the sake of clarity, this Section 10 (Indemnification) does not cover any claims based on any error in accuracy or timeliness of any Service, including, for example, any tax calculation or determination, tax return, filing, or compliance document. Such claims are governed exclusively by, and limited by, the warranties in the Terms or the warranties or guarantees set forth in the applicable Supplemental Terms, if any.
12. EXCLUSION OF CERTAIN CLAIMS; LIMITATION OF LIABILITY
a. Exclusion of Certain Claims. In no event shall either Party be liable to the other Party or any other party for cost of cover or any consequential, indirect, special, punitive, incidental, exemplary, or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill or investments, use of money or facilities, interruption in use or availability of data, stoppage of other work, or impairment of other assets, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to instances of gross negligence or willful misconduct, a Party’s breach of its confidentiality obligations set forth in Section 8 (Confidential Information), or a Party’s indemnification obligations set forth in Section 10 (Indemnification).
b. Limitation of Liability. In no event shall a Party’s aggregate liability exceed the fees paid or payable by Customer to GeoInvoice under the Agreement in the 12 month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to instances of gross negligence or willful misconduct, to a Party’s indemnification obligations set forth in Section 10 (Indemnification), to Customer’s obligations to pay fees and expenses when due and payable, to noncompliance with the Acceptable Use Policy by Customer or Authorized Users, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.
c. Limitation of Claims. Except with respect to claims of infringement or misappropriation of Intellectual Property of the other Party, a Party’s breach of its confidentiality obligations set forth in Section 8 (Confidential Information), or Customer’s failure to pay amounts due under the Agreement, neither Party may bring any claim relating to the Agreement more than two years after the events giving rise to the claim occurred.d. General. These exclusions and limitations apply even if the remedies are insufficient to cover all the losses or damages of such Party, its Affiliates or, in the case of Customer, Authorized Users. Without these limitations, the fees for the Services would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all the above exclusions or limitations may not apply, and the Parties may have additional rights.
13. ACCURACY GUARANTEE.
Geoinvoice provides a guarantee of the accuracy of sales and use tax calculation results provided by GeoInvoice Field Services (the “Accuracy Guarantee”) under the following terms:
a. If Customer suffers a negative audit finding that results in financial loss due to an incorrect sales or use tax calculation result returned by GeoInvoice Field Services, GeoInvoice shall pay Customer the lesser of either: (i) the amount of the penalties, interest, and uncollected sales or use taxes that directly result from the incorrect result, as specified in the final assessment notice received from the applicable taxing authority after all administrative appeals and abatement options are exhausted, or (ii) two times the amount of the GeoInvoice fees paid during the year preceding the negative audit finding (calculated as described in subsection (c) below).
b. The following limitations apply to the Accuracy Guarantee:
i. Customers must have properly set up, configured, and maintained its tax profile and Customer Data on the GeoInvoice Field Services system and have correctly classified items sold by Customer. To the extent that the incorrect result was caused by Customer’s failure to properly set up, configure, or maintain its tax profile or Customer Data, GeoInvoice will not be responsible for the incorrect result.
ii. GeoInvoice will not be responsible for the incorrect result to the extent that it was caused by the failure of the applicable taxing authority to timely and accurately provide or update correct and current tax rates, boundaries, rules, and classifications.
iii. Customer must provide notice to GeoInvoice no later than the earlier of either (1) 10 days after the taxing authority’s finding of a negative audit assessment, or (2) 30 days after the date that Customer identifies, or the taxing authority initially identifies to Customer, an issue that relates to the alleged incorrect result provided by Field Service Tax. Such notice must be sent to email@example.com.
iv. Customers must provide full and timely assistance to GeoInvoice in confirming the nature and occurrence of the alleged error, including providing GeoInvoice with access to its relevant financial reporting records, transaction logs, reports, and all other relevant information reasonably related to the alleged error.
v. Customer must provide full and timely assistance to GeoInvoice in challenging the taxing authority findings if GeoInvoice, in its sole discretion, determines them to be incorrect. To the extent that an audit assessment involves other issues in addition to the alleged incorrect result from Field Service Tax, Customer, its Representatives, and GeoInvoice will work together to ensure a collaborative response to the audit.
vi. Upon first becoming aware of a potential error related to an incorrect result by Field Service Tax, Customer must take reasonable steps to mitigate its losses, including, but not limited to, changing taxability determinations or calculations for ongoing transactions and rebilling customers for the uncollected tax.
c. For purposes of calculating the amount of the GeoInvoice fees paid that are eligible for the Accuracy Guarantee payment, the amount will be the fees actually paid by Customer to GeoInvoice for Field Service Tax, and the time period will be the 365 days preceding the issuance of the negative audit finding (e.g., in the case of a negative finding issued by a taxing authority on June 1, 2022, the period used in the calculation will be from May 31, 2021, to June 1, 2022). For clarity, for purposes of this calculation, the fees paid for Field Service Tax do not include activation fees, any fees for ancillary Professional Services, or any other one-time fees.
d. If the audit implicated other issues in addition to the alleged incorrect result provided by Field Service Tax, the amount to be paid by GeoInvoice under the Accuracy Guarantee will be the percentage of the final assessment amount equal to the percentage of the final assessment related to the alleged incorrect result provided by Field Service Tax.
e. GeoInvoice shall make the Accuracy Guarantee payment to Customer within 30 days after the date that Customer receives the final assessment notice from the applicable taxing authority, after all administrative appeals and abatement options are exhausted. GeoInvoice may also, in its sole discretion, make the payment at an earlier date, in which case, Customer’s obligation to continue to assist GeoInvoice in contesting the audit will cease on the date of the payment.f. The Accuracy Guarantee only applies to sales tax calculation results provided by the Field Service Tax Service after February 1, 2020. Customer must have a current Field Service Tax subscription in good standing when the claim is submitted to GeoInvoice to be eligible to receive payment under the Accuracy Guarantee.
a. Relationship of the Parties; No Professional Tax Opinions or Legal Advice. The Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Distributors and GeoInvoice’s other business partners are independent of GeoInvoice and are not GeoInvoice’s agents. Customer acknowledges and agrees that GeoInvoice does not provide legal advice, including legal or professional tax opinions or management advice. Customer is responsible for its own tax policies and tax reporting positions taken. Customer is responsible for conducting its own due diligence and seeking the assistance of a qualified legal, tax, or accounting professional.
b. Third-Party Applications. GeoInvoice is not responsible for and does not in any way endorse any Third-Party Applications or websites linked to by GeoInvoice’s website or the Services.
c. Publicity. Neither Party shall issue any public statement regarding the Agreement without the other Party’s prior written consent. Unless a Party has specifically notified the other Party to the contrary in writing, either Party may include the name or logo of the other Party in lists of customers or vendors.
d. Other Technology or Services; No Audit Support. Customer acknowledges and agrees that Customer has not relied on any future liability of any service offerings, technology, or enhanced or updated features or functionality, and that the Services do not include any audit support (unless otherwise specified in an Order Document).
e. Governing Law; Jurisdiction and Venue. The Agreement and all matters in connection with the Agreement will be governed by laws of the state of Texas, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. For any claims or causes of action arising out of the Agreement, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in Harris County, Texas.
f. Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party or its Affiliates (or, in the case of Customer, Authorized Users) violate the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
g. Force Majeure. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this section must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate the affected Service. Such termination will not result in any liability by either Party, except that, if Customer terminates the affected Service for GeoInvoice’s failure, GeoInvoice shall refund Customer a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Services (excluding any activation or other one-time fees). If Customer was unable to use the Service because of the force majeure event, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service.
h. Notices. GeoInvoice shall communicate announcements of general interest by email or by posting on its website or on Customer’s console. GeoInvoice shall provide Customer with legal notices in writing by email, mail, or courier to the address provided by Customer. Customer shall immediately notify GeoInvoice if Customer’s address for notice changes. Except as otherwise specified in the Agreement, all notices to GeoInvoice must be in writing, with account notices sent to firstname.lastname@example.org and legal notices sent to email@example.com.
i. Successors and Assigns. Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of the assets of or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor of the non-assigning Party or to an entity operating a business in violation of Applicable Law. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
j. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
k. Waiver. No waiver of any provision of the Agreement, nor any consent by a Party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver or consent will be effective only in the specific instance and for the purpose for which given.
l. Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Except as specified in Section 11 (Modifications), the Agreement may not be modified or amended except by a written instrument executed by both Parties. Customer’s standard terms of purchase (including purchase order terms), if any, are inapplicable. Except to the extent expressly specified otherwise, if there is any conflict between these Terms and any of the other Agreement documents, then the following order of precedence applies: (i) any addendum between the Parties, (ii) the Order Document, (iii) the Supplemental Terms of Service, if applicable, and (iv) these Terms.