THESE TERMS OF SERVICE ("TERMS") APPLY TO THE SERVICES PROVIDED BY SOVAT, INC. ("SOVAT") TO CUSTOMER (AS IDENTIFIED IN A PURCHASE ORDER, QUOTE, OR OTHER DOCUMENT EXECUTED BY OR ON BEHALF OF CUSTOMER, OR AN ONLINE, CLICKWRAP, OR OTHER ELECTRONIC ACCEPTANCE FORM REFERENCING OR INCORPORATING THESE TERMS (EACH, AN "ORDER FORM")). THE ORDER FORM, THESE TERMS, AND SOVAT'S PRIVACY POLICY (THE "PRIVACY POLICY") ARE COLLECTIVELY REFERRED TO AS THE "AGREEMENT". EACH OF CUSTOMER AND SOVAT IS A "PARTY" AND TOGETHER THE "PARTIES". IN THE EVENT OF ANY CONFLICT BETWEEN THESE TERMS AND ANY PURCHASE ORDER OR SIMILAR DOCUMENT ISSUED BY CUSTOMER, THESE TERMS SHALL CONTROL UNLESS EXPRESSLY AGREED OTHERWISE IN WRITING BY SOVAT.
1. Services.
Subject to these Terms and the Order Form, including payment of all Fees (defined below), SOVAT will provide the services described in the Order Form, which may include workflow automation and support services in evaluating, preparing, administering, and supporting VAT refund, reclaim, reimbursement, or similar indirect tax recovery requests, and related onboarding, document collection, claim-package preparation, communications support, reimbursement coordination, and other related support (collectively, the "Services"). In connection with the Services, SOVAT will act solely as Customer's designated representative or agent in connection with a refund claim and any associated receipt of proceeds, in each case only to the extent authorized by Customer and permitted by applicable law.
2. Intellectual Property Rights and Restrictions.
2.1. Intellectual Property.
Customer is granted a limited right and not ownership rights in any portion of the Services, SOVAT Trademarks (as defined below), or other materials, templates, workflows, analyses, communications, reports, forms, claim packages, instructions, methods, know-how, or information made available by SOVAT in connection with the Services (collectively, "SOVAT Materials"). All right, title, and interest, including all intellectual property rights, in and to the Services, the SOVAT Trademarks, and the SOVAT Materials, and all additions, modifications, and improvements to, and all derivative works based upon, the foregoing or any portion thereof shall remain the sole and exclusive property of SOVAT, and Customer hereby assigns to SOVAT any rights Customer may acquire in any of the foregoing. SOVAT reserves the right to make any changes to the Services and SOVAT Materials at any time and without notice. "SOVAT Trademarks" means the word "SOVAT", whether or not stylized, and all trademarks, service marks, logos, branding, trade dress, and package designs, or other indications of origin, source, or association, used by SOVAT or its licensors or in connection with the Services, and all goodwill and reputation associated with the foregoing. All references to "sell", "sale", or similar language with respect to the Services or any portion thereof refers to the sale of a limited right to receive the applicable Services or materials, as applicable. In the event Customer notifies or provides SOVAT any feedback, ideas, or suggestions regarding the Services or any portion thereof (collectively, "Feedback"), Customer hereby grants SOVAT a worldwide, non-exclusive, sublicensable (including in unlimited tiers), transferable, perpetual, irrevocable, royalty-free, and fully paid license to use, modify, distribute, create derivative works of, publicly display and perform, broadcast, sell, make, import, export, and otherwise fully exploit such Feedback, for any use and purpose whatsoever. For the avoidance of doubt, such Feedback shall not be deemed Customer's Confidential Information.
2.2. Restrictions.
Customer shall not, and shall not allow any of its employees, consultants, staff or other personnel ("Personnel") or any third party to: (i) transfer, sell, sublicense, disclose, publish, assign, market, or otherwise distribute any portion of the Services or SOVAT Materials to any third party or make the Services or SOVAT Materials available in any service bureau, hosted, managed services, or other similar arrangement; (ii) circumvent, disable, or otherwise interfere with any security-related features of SOVAT's website, systems, onboarding process, workflows, or materials, or any features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services or SOVAT Materials; (iii) reverse engineer, decompile, disassemble, copy, modify, translate, patch, alter, change, or create any derivative works based upon any SOVAT software, workflows, templates, systems, or materials, or any part thereof; (iv) use any robot, spider, scraper, or other automated means to access any SOVAT website, system, onboarding process, workflow, or materials for any purpose; (v) take any action that imposes or may impose (at SOVAT's sole discretion) an unreasonable or disproportionately large load on SOVAT's or its third party service providers' infrastructure; (vi) interfere or attempt to interfere with the integrity or proper working of the Services, or any related activities; (vii) remove, deface, obscure, or alter SOVAT's or any third party's copyright notices, trademarks, text or hyperlinks, or other proprietary material affixed to or provided as part of the Services or SOVAT Materials; (viii) use or access the Services or any SOVAT Materials to develop a competing service or product; (ix) use the Services to transmit, display, store, or otherwise process content which (a) is unlawful, infringing, fraudulent, obscene, defamatory, threatening, discriminatory, or otherwise harmful, (b) violates the rights of any third party, or (c) negatively impacts the reputation and goodwill of SOVAT in any way (all of the foregoing to be determined in SOVAT's sole discretion); or (x) use the Services in any unlawful manner (including without limitation in violation of any data protection or privacy legislation) or in breach of these Terms. In all cases, Customer shall be and remain liable to SOVAT for any act or omission of Customer's Personnel that would constitute a breach of these Terms as if such acts or omissions were by Customer. Customer agrees that the restrictions on use and access set forth in this paragraph are limitations on the scope of the rights granted in Section 1 above, and Customer's breach of this Section 2.2 constitutes, without limitation, a material breach of this Agreement. (xi) use the Services, SOVAT Materials, workflows, outputs, claim packages, or other information or materials provided by or obtained from SOVAT for the purpose of benchmarking, competitive analysis, training or improving machine learning or artificial intelligence models, developing or offering a competing product or service, or replicating the functionality, workflows, features, user experience, or business model of the Services or any portion thereof.
3. Customer Authorization; Designated Representative.
Customer shall provide all information, documents, instructions, approvals, payment details, authorizations, and other materials required by SOVAT in connection with the Services, and shall provide only accurate, complete, and updated information. Customer authorizes SOVAT to act as Customer's designated representative or agent in connection with the applicable refund claim and any associated receipt of proceeds. Customer shall promptly notify SOVAT if any information, authority, designation, payment instruction, or other instruction provided by or on behalf of Customer changes or becomes inaccurate. Customer acknowledges that SOVAT may rely on information, documentation, approvals, and instructions provided by or on behalf of Customer without independent verification.
4. Third-Party Services.
Customer acknowledges and agrees that SOVAT does not own or operate, and has no control over, and is not responsible for, third-party products or services which may be used in connection with the Services ("Third-Party Services"), or the content or information provided by, or the acts or omissions of, the providers of such Third-Party Services. By using any Third-Party Service in connection with the Services, Customer agrees to the terms and conditions associated with such Third-Party Service, authorizes the Third-Party Service provider to transfer data associated with Customer's account, claim, or refund to SOVAT and authorizes SOVAT to request and obtain such data, facilitate the applicable workflow, and transfer Customer Data, including, without limitation, Personal Data (as such terms are defined below), to such Third-Party Service provider. Notwithstanding anything to the contrary, Customer agrees that SOVAT may comply with the requests of the providers of any Third-Party Service or remove or suspend the Services in the event SOVAT believes necessary to comply with the terms and conditions applicable to such Third-Party Service, comply with any cease and desist demands or similar communications, or avoid, resolve, or conclude any liability, litigation, or proceedings.
5. Customer Cooperation and Forms.
In order for SOVAT to provide the Services, Customer may be required to complete onboarding, accept clickwrap terms, provide access to or information from certain Third-Party Services, provide certain Customer Data, authorizations, signatures, forms, registrations, declarations, certifications, or other information, or take other actions requested by SOVAT tax authorities, or relevant service providers. Customer is responsible for reviewing, approving, signing, filing, and submitting all forms, declarations, authorizations, certifications, registrations, claim materials, and other filings required for any claim or recovery. SOVAT may prepare drafts, assemble claim packages, provide instructions, coordinate supporting documentation, and assist Customer in connection with such filing or submission, but Customer remains the claimant, filer, and responsible party with respect to the underlying claim, tax position, eligibility, documentation, and submission, except as expressly mentioned under any Order Form. Customer agrees to comply with all requests in a timely manner and acknowledges that failure to do so, and any resulting inability or delay in SOVAT's ability to provide the Services, shall not entitle Customer to any refund of any kind nor result in any liability on the part of SOVAT.
6. Customer Data
6.1. License.
As part of or in connection with the Services, Customer may provide to SOVAT certain documents, images, text, and other content and materials ("Customer Content"), or other information and data, and may enable its customers, employees, contractors, representatives, or other personnel to provide documents, images, text, content, information, and data, including, without limitation, Personal Data (collectively, "Customer Data"). Customer hereby grants SOVAT an irrevocable license to reproduce, modify, create derivative works based upon, display, perform, transmit, submit, disclose, and use the Customer Data in order to provide the Services, create Aggregated Data (as defined below), comply with law, coordinate with tax authorities and Third-Party Services, and as otherwise described in the Privacy Policy. As between Customer and SOVAT, all Customer Data shall be owned solely and exclusively by Customer and its licensors.
6.2. Responsibility.
Customer represents and warrants that: (i) it owns or has obtained the rights to all of the intellectual property rights subsisting in the Customer Data and has the right to grant SOVAT all licenses, rights, and permissions provided in this Agreement; (ii) it has all required rights, notices, consents, and authorizations required to provide Customer Data to SOVAT and to authorize SOVAT to use, process, submit, disclose, and otherwise handle Customer Data in accordance with this Agreement and the Privacy Policy; and (iii) the Customer Data, and SOVAT's receipt and use thereof in accordance with this Agreement, does not infringe or violate any intellectual property rights or other rights of any third party or any applicable law. Customer shall remain solely responsible and liable for the accuracy, completeness, legality, and suitability of Customer Data and all instructions provided by or on behalf of Customer, and shall defend, indemnify, and hold harmless SOVAT and its Affiliates (as defined below) from and against any claims, actions, demands, proceedings, damages, liabilities, losses, costs, and expenses (including reasonable attorney's fees and litigation costs) arising out of any Customer Data, SOVAT's receipt and use thereof in accordance with this Agreement, or the breach of this Section 6.2.
7. Support and Services.
7.1. Customer Support.
Subject to these Terms, SOVAT will make commercially reasonable efforts to provide Customer with reasonable customer support in connection with active engagements ("Customer Assistance"). For clarity, Customer Assistance does not include legal advice, tax advice, accounting advice, custom development, broad consulting outside the scope of the applicable Order Form, or other services for which the Order Form states a separate fee.
7.2. Additional Services.
SOVAT may offer the provision of certain services which are not included in SOVAT's Customer Assistance obligations or the Services described in the applicable Order Form ("Additional Services"). All Additional Services shall be subject to the Parties executing an Order Form or statement of work, proposal, or other document describing the fees to be paid by Customer in connection with the Additional Services and a description of the Additional Services to be performed and any agreed specifications ("Statement of Work" or "SOW"). Customer shall fully and timely cooperate with SOVAT t in the performance of the Additional Services, and shall provide SOVAT with all information, materials, facilities, assistance, and equipment reasonably requested in order to perform the Additional Services. Customer shall be responsible and shall reimburse SOVAT for all costs and expenses incurred by SOVAT in the performance of the Additional Services, including, without limitation, in the case of travel to Customer's or a third party's location, for any travel costs and a per diem allowance. All Statements of Work shall be subject to these Terms. SOVAT shall have sole discretion in determining whether or not to enter into any Statement of Work or provide any Additional Services. No Statement of Work shall apply unless executed by both SOVAT and Customer. Provision of all Additional Services shall be subject to Customer's payment of the fees due in connection with such Additional Services in accordance with the schedule agreed to by the Parties. In the event of any failure to pay the fees when due, SOVAT shall be entitled to suspend the performance of the Additional Services.
8. Fees and Payment.
8.1. Fees; Payment Terms.
Unless otherwise expressly agreed in the applicable Order Form, Customer shall pay the fees due in accordance with the applicable Order Form ("Fees"). Fees may include a one-time success fee, any fixed or one-time onboarding, filing, administration, or set-up fees, and any pass-through Third-Party Service fees or expenses. For purposes of this Agreement, any online onboarding flow, clickwrap acceptance flow, pricing screen, electronic acceptance flow, or similar workflow through which Customer reviews and accepts applicable pricing, fee percentages, payment authorizations, or commercial terms shall constitute an "Order Form," and such pricing, fee percentages, payment authorizations, and commercial terms are hereby incorporated into this Agreement by reference. Unless otherwise expressly stated in the applicable Order Form, a one-time success fee becomes earned and payable upon the occurrence of a "Recovery Event," meaning the receipt or availability to Customer, any of its Affiliates, Personnel, designees, or any third party acting on Customer's behalf of any refund, reimbursement, credit, offset, reduction of liability, tax benefit, or other recovery in respect of any claim, matter, or submission for which SOVAT provided Services, whether paid directly, indirectly, in cash, netted, credited, offset, or otherwise. Customer authorizes SOVAT and its payment processors to charge any payment method provided by or on behalf of Customer for all Fees becoming due under this Agreement upon the occurrence of a Recovery Event. Customer shall maintain valid and updated payment information at all times during the term of this Agreement and until all amounts owed to SOVAT are paid in full. Customer shall promptly notify SOVAT of any Recovery Event and provide reasonable supporting documentation upon request. SOVAT may also rely on correspondence, notices, records, payment confirmations, governmental communications, or other information reasonably indicating that a Recovery Event has occurred. If any payment method cannot be charged or any charge is rejected, reversed, refunded, disputed, or declined, Customer shall remain fully responsible for all Fees due and shall promptly pay all outstanding amounts upon request. If the applicable Order Form calculates the success fee by reference to a percentage of the recovery, the success fee shall be calculated on the gross amount recovered, unless the applicable Order Form expressly states otherwise. If Customer, or anyone acting on its behalf, continues, re-files, re-submits, settles, or otherwise obtains a Recovery Event based in whole or in part on work performed, claim files compiled, or submissions prepared by SOVAT, the applicable success fee shall remain payable notwithstanding any earlier termination of this Agreement or the applicable Order Form. Unless otherwise expressly stated in the applicable Order Form, all payments shall be made in United States Dollars, Euros, Pounds Sterling, or such other currency as may be set forth by SOVAT. Except as otherwise expressly stated in a separately negotiated written agreement executed by SOVAT at and Customer, all Order Forms are non-cancelable and all Fees and other amounts paid to SOVAT are nonrefundable. SOVAT shall have the right to offset any amounts which SOVAT may owe Customer against any amounts owed by Customer to SOVAT Customer agrees that failure to pay any amounts in accordance with, and Customer's breach of, this Section 8 constitutes, without limitation, a material breach of this Agreement.
8.2. Failure to Pay.
Any amounts not paid to SOVAT when due shall accrue interest on a daily basis from the date such amount is outstanding until paid in full, at the lesser of the rate of (i) one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. In the event of non-payment of any amounts due, Customer shall promptly, upon receipt of SOVAT's invoice for the same, pay SOVAT all costs and expenses incurred, and indemnify and hold SOVAT harmless from all losses, in connection with the collection of such amounts, including, without limitation, attorneys' fees and litigation costs.
8.3. Taxes.
Unless otherwise set forth in the Order Form, all Fees are exclusive of any taxes or third-party fees, tariffs, duties, levies, or other charges, all of which are the responsibility of Customer. In the event that any withholding tax or obligation applies, the amount due to SOVAT shall be increased such that the total amount, after any withholding or deduction, paid to SOVAT is equal to the amount of Fees which otherwise would have been due to SOVAT, free of liability of any kind. Nevertheless, SOVAT shall cooperate in good faith to avoid, to extent permitted under applicable law, such withholding requirements.
8.4. Third-Party Fees.
Third-Party Fees. Certain Services may require the use of Third-Party Services or the payment of third-party costs, including, without limitation, filing fees, translation costs, notarization costs, local advisor or agent fees, tax authority fees, banking charges, or similar expenses associated with the Services ("Third-Party Fees"). Unless otherwise expressly stated in the applicable Order Form, Customer shall be responsible for all applicable Third-Party Fees. SOVAT shall use commercially reasonable efforts to disclose or communicate any anticipated Third-Party Fees in advance. Except for routine, immaterial, or mandatory governmental or processing charges reasonably necessary to continue the applicable Services, SOVAT shall not incur or charge Customer for material Third-Party Fees without Customer's prior approval. To the extent SOVAT advances or pays approved Third-Party Fees on Customer's behalf, Customer shall promptly reimburse SOVAT for such amounts.
8.5. Refund Proceeds; Representative Capacity; No Payment Service.
Customer acknowledges and agrees that SOVAT is not a money transmitter, payment processor, wallet provider, escrow provider, remittance provider, or provider of any stand-alone financial or payment service. Refund proceeds in connection with the Services are payable to and beneficially owned by Customer, not SOVAT. Customer shall provide accurate and complete account information for the bank account or other account designated by Customer to receive refund proceeds (the "Designated Account"). To the extent operationally practicable and permitted by the applicable tax authority, refund processor, or other payor, Customer shall cause refund proceeds to be remitted directly to Customer's Designated Account. If any refund proceeds are received by SOVAT in connection with the Services, such proceeds are received and held by SOVAT solely in a representative capacity for the benefit of Customer and only as an incident to the Services. SOVAT is not offering, marketing, or separately monetizing any payments, wallet, remittance, escrow, stored value, or money transmission service, and any handling of refund proceeds by SOVAT is solely incidental and integral to the Services provided to Customer. Customer remains responsible for all account information, payment instructions, tax reporting, and compliance obligations associated with refund proceeds and any Designated Account.
9. Privacy and Data Protection
9.1. Customer Use Data.
Customer acknowledges and agrees that its receipt of the Services, and any information transmitted to, obtained by, or stored by SOVAT about Customer or Customer's Personnel, is subject to SOVAT's Privacy Policy, as may be modified and updated from time to time by SoVat, and which is currently available at Privacy Policy or another URL designated by SOVAT. The Privacy Policy is incorporated into and forms an integral part of this Agreement.
9.2. Personal Data.
The Services may involve Customer providing to SOVAT and the providers of Third-Party Services, and their and SOVAT's subcontractors, information relating to identified or identifiable individuals ("Personal Data"). Customer undertakes to, and represents, warrants, and undertakes that it does and shall continue to, obtain all consents from and provide all notices to relevant individuals as required by applicable law, including, without limitation, to allow the transfer to and processing by SOVAT, its Affiliates, service providers, local advisors or agents, and third-party processors, of all such Personal Data. Customer agrees that if SOVAT deems it necessary to comply with any law or other obligations, SOVAT may require Customer to enter into a data processing addendum or other privacy or data protection addendum in a form reasonably requested by SOVAT as a condition to the applicable processing or Services. Customer shall be and remain solely responsible and liable for Personal Data to the extent provided by or on behalf of Customer and shall defend, indemnify, and hold harmless SOVAT and its Affiliates from and against any claims, actions, demands, proceedings, damages, liabilities, losses, costs and expenses (including reasonable attorney's fees and litigation costs) arising out of the Personal Data, SOVAT's receipt, use and processing thereof in accordance with these Terms or the Privacy Policy, or Customer's breach of this Section 9.2 or any such addendum.
9.3. Aggregated Data.
Customer acknowledges and agrees that SOVAT may derive from Customer Data and Personal Data statistical, aggregated, or anonymous data (which no longer identifies or relates to any particular individual) (collectively, "Aggregated Data"), including, without limitation, regarding claims, recoveries, customer usage, or service usage, and use such Aggregated Data in any manner and for any purpose.
10. Confidentiality
10.1. Confidential Information.
"Confidential Information" means any information or materials that due to the manner in which disclosed or the nature thereof the Party receiving or obtaining such information or material (a "Recipient") should reasonably know is deemed to be non-public, confidential, proprietary or sensitive by the Party disclosing or making such information accessible or available (a "Discloser"), whether in tangible or intangible form, and regardless of whether or not marked or designated as such. Confidential Information shall not include information and material which: (a) is in the public domain, due to no fault of the Recipient; (b) was rightfully in the Recipient's possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (c) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (d) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. Notwithstanding anything to the contrary, the Parties agree that these Terms, the Order Form, and any statement of work, and the terms of all of the above, and all business and technical information with respect to the Services, Services, or SOVAT Materials, are the Confidential Information of SOVAT, and Customer Data is the Confidential Information of Customer.
10.2. Obligation of Confidentiality.
The Recipient shall (i) use the Confidential Information solely, in the case of Customer, to receive the Services pursuant to this Agreement, and, in the case of SOVAT, to provide the Services or as otherwise permitted pursuant to this Agreement; (ii) keep the Confidential Information in strict confidence; (iii) take reasonable measures, at a level at least as protective as those taken to protect its own confidential information of like nature, to protect the Discloser's Confidential Information against disclosure; and (iv) not disclose the Discloser's Confidential Information to any third party, except to its employees, contractors, advisers, agents and actual and potential investors, acquirers, partners, channel partners, service providers, subject to substantially similar written confidentiality undertakings, or attorneys ("Permitted Transferees"). Each Party shall be liable for the acts and omissions of its Permitted Transferees in respect of the Confidential Information as if done or omitted to be done by such Party.
10.3. Court Orders.
Recipient may disclose Confidential Information of the Discloser to the extent required by any law, regulation, or governmental or judicial order, provided that the Recipient (a) promptly notifies Discloser of such requirement; (b) reasonably cooperates with Discloser in opposing such disclosure; and (c) requests that the Confidential Information be treated as confidential.
10.4. Return or Destruction of Confidential Information.
Upon termination or expiration of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information or, at the Discloser's option, destroy such Confidential Information (or, if embodied electronically, permanently erase it), and certify compliance in writing; provided, however, that the Recipient may retain archived or back-up copies maintained pursuant to standard backup, legal, compliance, security, or record-retention practices, provided that such retained Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement for so long as retained.
10.5. Equitable Relief.
Customer acknowledges and agrees that in the event of a breach or threatened breach of its obligations under Section 2 or this Section 10, SOVAT may suffer irreparable harm or damage, which may not be readily assessable and which the payment of money cannot repair. Accordingly, SOVAT shall be entitled to injunctive or equitable relief to enforce the provisions of Section 2 or this Section 10, or otherwise prevent, restrain, mitigate, or remedy an unauthorized use or disclosure of, or failure to safeguard, its Confidential Information, without providing damages or posting bond of any kind.
11. Term and Termination
11.1. Term.
Unless otherwise set forth in the Order Form, this Agreement and the rights granted hereunder shall commence on the date of the applicable Order Form and remain in effect until completion or closure of the Services and payment of all amounts due thereunder, unless terminated earlier in accordance with these Terms (the "Term"). The Parties may enter into one or more Order Forms from time to time, and each such Order Form shall be governed by these Terms. For the avoidance of doubt, this Agreement is engagement-based and does not create any automatic renewal, subscription, minimum volume commitment, or obligation for SOVAT to perform additional services or pursue additional claims except as expressly set forth in an Order Form.
11.2. Termination for Cause.
Either Party may terminate these Terms due to the material breach of this Agreement by the other Party upon fifteen (15) days' prior written notice, provided that, if such breach is curable, the breaching Party has not cured the breach within such notice period. Notwithstanding the foregoing, either Party may terminate this Agreement immediately upon written notice in the event of any material breach that is not curable or is not reasonably capable of cure within fifteen (15) days, including, without limitation, a breach of Section 2 or Section 10.
11.3. Bankruptcy.
SOVAT may terminate this Agreement immediately upon written notice to Customer if Customer is declared bankrupt by a judicial decision, undergoes a process of voluntary liquidation, or in the event an involuntary bankruptcy action is filed against Customer, and such action is not dismissed within sixty (60) days, or in the event Customer ceases to pay debts as they become due or to operate as an ongoing concern.
11.4. Effect of Termination.
Termination or expiration of this Agreement shall not relieve Customer of its obligation to pay any Fees that accrued prior to such termination or expiration or that become due in connection with any Recovery Event arising from Services performed before such termination or expiration. Upon termination or expiration of this Agreement, Customer shall promptly stop using any SOVAT Materials except to the extent reasonably necessary to maintain Customer's own records or to complete filings based on materials already delivered to Customer, subject to the confidentiality and use restrictions in this Agreement. This Section 11.4 and Sections 2, 3, 6.2, 9, 10, 12, 13, 14, 15, 16, and any outstanding obligations or rights accrued, shall survive termination or expiration of the Agreement.
11.5. Suspension.
In the event Customer has not paid all Fees due by the date required or if SOVAT believes or suspects that the Services SOVAT Materials, or any portion thereof are being accessed, used, or relied upon in a manner that may cause harm to SOVAT or any third party, in infringement or violation of any law or intellectual property, privacy, or other rights, or in a manner which violates or would violate the restrictions or requirements in Section 2, or that Customer's receipt or use of the Services may result in liability or harm to SOVAT, its customers, users, or any third party, then SOVAT may suspend the Services until the Fees are paid or such time as SOVAT believes the threat of liability, harm, violation, infringement, or actual harm has passed, as applicable.
12. Representations and Warranties.
12.1. Mutual Representations.
Each Party represents and warrants that it (a) is duly organized and validly existing under the laws of its jurisdiction of formation and has the full power and authority to enter into the Order Form and these Terms; and (b) is not bound by any agreement, obligation, or restriction that would interfere with its obligations under these Terms.
12.2. Compliance with Law.
Customer represents, warrants, and undertakes throughout the Term that it and its Affiliates, and its and their officers, directors, employees, and contractors, and to its actual knowledge, its customers, users, and its and their officers, directors, employees, and contractors (a) comply and shall comply with applicable laws, and (b) have not been and shall not be investigated for, charged with, or convicted of, crimes of or related or predicate crimes to money laundering, drug trafficking, weapons trafficking, terrorist-related activities, or any violation of Anti-Terrorism and Anti-Money Laundering Laws or Anti-Corruption Laws (as such terms are defined below); and (c) are not, and shall not be, (i) named on any U.S. government list of persons or entities with which U.S. persons or entities are prohibited from transacting, nor (ii) owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Services in any manner that would cause any party to violate any U.S. or international embargo, export control law, rule, or prohibition. "Anti-Corruption Laws" means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including, without limitation, the U.S. Foreign Corrupt Practices Act. "Anti-Terrorism and Anti-Money Laundering Laws" means all applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations, or guidelines, which in each case are issued, administered, or enforced by any governmental authority in any jurisdiction applicable to the relevant person or entity, which shall in any event include, without limitation, Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) (the "Terrorism Executive Order") or a person or entity similarly designated under any related enabling legislation or any other similar executive order (collectively with the Terrorism Executive Order, the "Executive Orders"), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the "Patriot Act"), the US Freedom Act, Public Law 114-2, any sanctions and regulations promulgated under authority granted by the Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to time, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, as amended from time to time, the Iraqi Sanctions Act, Pub. L. No. 101-513, United Nations Participation Act, 22 U.S.C. § 287c, as amended from time to time, the International Security and Development Cooperation Act, 22 U.S.C. § 2349 aa-9, as amended from time to time, The Cuban Democracy Act, 22 U.S.C. §§ 6001-10, as amended from time to time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 2339b, as amended from time to time, and The Foreign Narcotics Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to time. Any breach by Customer of this Section 12 shall constitute, without limitation, a material breach of this Agreement.
13. Disclaimer; Acknowledgements.
13.1. GENERAL.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT TO THE EXTENT EXPLICITLY STATED OTHERWISE IN THESE TERMS: THE SERVICES, CUSTOMER ASSISTANCE, ADDITIONAL SERVICES, AND ANY MATERIALS OR INFORMATION PROVIDED OR MADE AVAILABLE BY SOVAT, ITS AFFILIATES, OR ANY THIRD PARTY ON ITS OR THEIR BEHALF, ARE PROVIDED "AS IS", WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, TERM, OR CONDITION OF ANY KIND WHATSOEVER (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, OR WITH RESPECT TO THE AVAILABILITY OR ACCURACY OF THE SERVICES OR ANY RECOVERY, ALL OF WHICH ARE HEREBY DISCLAIMED.
13.2. THIRD-PARTY SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND WITHOUT LIMITATION TO THE ABOVE IN THIS SECTION 13, CUSTOMER ACKNOWLEDGES AND AGREES THAT SOVAT DOES NOT OWN OR OPERATE THIRD-PARTY SERVICES AND IS NOT RESPONSIBLE IN ANY MANNER FOR THE EFFICACY, AVAILABILITY, ACCURACY, TIMING, OR OUTPUT OF SUCH THIRD-PARTY SERVICES, THE CAPABILITY (OR LACK THEREOF) OF ANY THIRD-PARTY SERVICE TO BE USED IN CONNECTION WITH THE SERVICES, OR THE ACTS OR OMISSIONS OF THE PROVIDER OF ANY SUCH THIRD-PARTY SERVICE.
13.3. COMPLIANCE; NATURE OF SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND WITHOUT LIMITATION TO THE ABOVE IN THIS SECTION 13, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND ANY COMMUNICATIONS, SUGGESTIONS, RECOMMENDATIONS, REPORTS, CLAIM PACKAGES, FORMS, OR SUBMISSIONS PROVIDED BY SOVAT DO NOT CONSTITUTE LEGAL ADVICE, LEGAL SERVICES, TAX ADVICE, TAX OPINIONS, ACCOUNTING ADVICE, OR ANY GUARANTEE OF ELIGIBILITY FOR OR RECOVERY OF ANY REFUND, RECLAIM, REIMBURSEMENT, CREDIT, OR OTHER RECOVERY. SOVAT DOES NOT GUARANTEE THAT ANY CLAIM, SUBMISSION, OR REQUEST WILL BE ACCEPTED, APPROVED, PAID, PROCESSED WITHIN ANY PARTICULAR TIMEFRAME, OR RESULT IN ANY PARTICULAR OUTCOME OR RECOVERY AMOUNT. CUSTOMER IS AND SHALL REMAIN SOLELY RESPONSIBLE FOR THE UNDERLYING ELIGIBILITY, TAX POSITIONS, RECORDS, DOCUMENTATION, AUTHORIZATIONS, INSTRUCTIONS, FILINGS, DISCLOSURES, AND COMPLIANCE OBLIGATIONS RELATING TO ANY CLAIM OR RECOVERY, FOR REVIEWING AND APPROVING ANY FORMS, CLAIM PACKAGES, OR SUBMISSIONS BEFORE THEY ARE FILED OR RELIED UPON, FOR FILING OR SUBMITTING SUCH MATERIALS UNLESS EXPRESSLY AGREED OTHERWISE IN THE APPLICABLE ORDER FORM, FOR CONFIRMING RECEIPT THEREOF BY THE APPROPRIATE RECIPIENT, AND FOR OBTAINING INDEPENDENT LEGAL, TAX, OR OTHER PROFESSIONAL ADVICE AS CUSTOMER DEEMS APPROPRIATE. SOVAT MAY RELY ON CUSTOMER DATA AND OTHER INFORMATION, DOCUMENTS, AND INSTRUCTIONS PROVIDED BY OR ON BEHALF OF CUSTOMER WITHOUT INDEPENDENT VERIFICATION.
13.4. ACCURACY; SERVICES.
WITHOUT LIMITATION TO THE ABOVE IN THIS SECTION 13, SOVAT MAKES NO, AND HEREBY DISCLAIMS ANY, WARRANTY THAT ALL INFORMATION, CALCULATIONS, MATERIALS, TIMELINES, GOVERNMENTAL OR THIRD-PARTY REQUIREMENTS, OR OTHER OUTPUTS PROVIDED IN CONNECTION WITH THE SERVICES ARE OR WILL REMAIN ACCURATE, COMPLETE, CURRENT, OR SUITABLE FOR CUSTOMER'S PARTICULAR PURPOSES. SOVAT RESERVES THE RIGHT TO MODIFY, ADD, OR REMOVE FEATURES, FUNCTIONALITY, WORKFLOWS, OR PORTIONS OF THE SERVICES IN ITS SOLE DISCRETION.
13.5. BACK-UP OF DATA.
WITHOUT LIMITATION TO THE ABOVE IN THIS SECTION 13, SOVAT MAKES NO, AND HEREBY DISCLAIMS ANY, WARRANTY REGARDING THE AVAILABILITY OR STORAGE OR BACK-UP OF CUSTOMER DATA OR OTHER DATA PROVIDED BY CUSTOMER OR OTHERWISE ASSOCIATED WITH THE SERVICES, AND CUSTOMER ACKNOWLEDGES AND AGREES TO BE SOLELY RESPONSIBLE FOR MAINTAINING A BACKUP OF SUCH DATA.
13.6. REPRESENTATIVE CAPACITY; FUNDS FLOW.
WITHOUT LIMITATION TO THE ABOVE IN THIS SECTION 13, CUSTOMER ACKNOWLEDGES AND AGREES THAT SOVAT'S ROLE IN CONNECTION WITH ANY REFUND PROCEEDS IS LIMITED TO ACTING AS CUSTOMER'S DESIGNATED REPRESENTATIVE OR AGENT FOR THE REFUND CLAIM AND ANY ASSOCIATED RECEIPT OF PROCEEDS, IF APPLICABLE. SOVAT DOES NOT OFFER, MARKET, OR SEPARATELY MONETIZE ANY PAYMENTS, WALLET, REMITTANCE, ESCROW, STORED VALUE, OR MONEY TRANSMISSION SERVICE. ANY FUNDS RECEIVED BY SOVAT IN CONNECTION WITH THE SERVICES ARE RECEIVED AND HELD ONLY IN A REPRESENTATIVE CAPACITY FOR THE BENEFIT OF CUSTOMER AND AS AN INCIDENTAL PART OF THE SERVICES. SOVAT MAKES NO REPRESENTATION OR WARRANTY REGARDING THE TIMING, AVAILABILITY, PROCESSING, REVERSAL, OFFSET, HOLDBACK, OR RELEASE OF ANY REFUND PROCEEDS BY ANY TAX AUTHORITY, REFUND PROCESSOR, BANK, PAYMENT INTERMEDIARY, OR OTHER THIRD PARTY.
14. Limitation of Liability and Actions.
14.1. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, (A) SOVAT, ITS AFFILIATES, AND ITS AND THEIR LICENSORS, SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES OR LOSSES OF ANY KIND, OR LOST PROFITS, BUSINESS, REVENUES, OR SAVINGS, LOST DATA, DAMAGE OR LOSSES TO GOODWILL, REPUTATION, OR BUSINESS, OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH THE AGREEMENT, THE SUBJECT MATTER THEREOF, THE SERVICES, CUSTOMER'S OR CUSTOMER PERSONNEL'S USE OF OR RELIANCE UPON THE SERVICES, THE PROVISION OF (OR ANY FAILURE TO PROVIDE) CUSTOMER ASSISTANCE OR ADDITIONAL SERVICES, OR ANY ACT OR OMISSION BY SOVAT OR ON ITS BEHALF IN RELATION TO THE FOREGOING (COLLECTIVELY, "AGREEMENT SUBJECT MATTER"); AND (B) THE TOTAL CUMULATIVE LIABILITY OF SOVAT, ITS AFFILIATES, AND ITS AND THEIR LICENSORS, IN CONNECTION WITH THE AGREEMENT SUBJECT MATTER SHALL NOT EXCEED THE FEES ACTUALLY PAID OR PAYABLE TO SOVAT UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, AND IF NO SUCH TWELVE (12) MONTH PERIOD APPLIES, THE TOTAL FEES PAID OR PAYABLE UNDER THE APPLICABLE ORDER FORM. THE ABOVE LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF THE FORESEEABILITY OR WHETHER SOVAT WAS ADVISED OR AWARE OF THE POSSIBILITY OF THE DAMAGES OR LOSSES, AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (WHETHER IN TORT, BREACH OF CONTRACT, OR OTHERWISE).
14.2. WAIVER OF JURY TRIAL.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.3. LIMITATION ON PERIOD TO BRING CLAIMS.
CUSTOMER AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION CUSTOMER MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES, OR THE AGREEMENT SUBJECT MATTER, OR OTHERWISE AGAINST SOVAT OR ANY OF ITS AFFILIATES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SHALL BE FOREVER BARRED.
15. Fair Use of Customer Name.
SOVAT may use Customer's name and logo on SOVAT's websites, customer lists, presentations, proposals, and other marketing materials solely to identify Customer as a current or former customer of SOVAT, provided that: (i) such use will not state or imply Customer's endorsement of SOVAT or the Services; (ii) SOVAT will comply with any written trademark or brand usage guidelines provided by Customer; and (iii) upon Customer's written request, SOVAT will promptly discontinue any future use of Customer's name and logo, it being understood that SOVAT is not required to remove materials already printed or previously published, other than reasonable efforts to update its website and other digital materials within a commercially reasonable time.
16. General.
16.1. Governing Law; Jurisdiction.
This Agreement, and the subject matter thereof, and any disputes related to the foregoing shall be governed by the laws of the State of New York, excluding conflicts or choice of law rules and principles. Any such disputes shall be subject to the exclusive jurisdiction and venue of the courts of competent jurisdiction located in New York County, New York, and each Party hereby waives any jurisdictional, venue, or inconvenient forum objections to such courts and venue. Notwithstanding the foregoing, SOVAT may seek preliminary or interim injunctive or other relief in any court of competent jurisdiction worldwide.
16.2. Assignment.
Customer may not assign or delegate this Agreement, in whole or in part, or any rights or obligations hereunder to any other party, without the written consent of SOVAT. Any assignment or delegation in violation of the above shall be null and void. SOVAT may freely assign or delegate this Agreement, in whole or in part. Subject to the foregoing, this Agreement shall bind and benefit the Parties and their respective successors and valid assigns.
16.3. Relationship.
The relationship of the Parties is solely that of independent contractors, and nothing in these Terms or the Order Form shall be construed as creating or giving rise to a partnership, joint venture, franchise, employment, fiduciary, or other relationship between them. Notwithstanding the foregoing, solely to the extent Customer expressly appoints or authorizes SOVAT to act as Customer's designated representative or agent in connection with a refund claim or any associated receipt of proceeds, SOVAT may act in that limited representative or agency capacity solely for such purpose and subject to these Terms and the applicable authorization, and no broader agency, fiduciary, escrow, money transmission, payment, wallet, remittance, or similar relationship is created.
16.4. Force Majeure.
Other than Customer's obligation to pay the Fees, neither Party shall be liable for any delay or failure to perform any obligation caused by fire, explosion, flood, drought, storms, hurricane, washouts, severe weather, natural disasters, blackout or other electrical or other power outages, network outages or failures, biological outbreak, epidemic or pandemic, mass illness or sickness, lockdowns, shutdowns, stay-home or similar orders, closures of commerce or other closures, closure of borders, riots, sabotage, blockades, embargo, siege, terrorism, war, insurrections, property damage, civil disturbances, or other hostilities, acts of a public enemy, domestic or foreign governmental acts (or omissions), court orders, or changes in law, arrests, a labor dispute or troubles including, without limitation, a strike or lockout, events declared by a tribunal, governmental or international authority as emergencies or disasters, acts of God or force majeure, failure of major providers or network, cloud, or internet service providers, suspension of operations of major providers in a trade, supply or other shortages, or any other events outside of the reasonable control of the non-performing Party.
16.5. Notices.
Notices and other communications pursuant to this Agreement shall be in writing and shall be deemed to have been duly made as of the date delivered or transmitted, and shall be effective upon receipt, if delivered personally, sent by courier to the address listed in the Order Form (or such other address requested by a Party), or sent by electronic transmission, with confirmation received or otherwise evidenced (such as by a response from the recipient), to the email address specified by the recipient Party in writing. SOVAT may also deliver notices and communications to Customer by sending such notice to the email address provided by Customer in the Order Form, through any electronic onboarding flow, or in connection with Customer's request for Services, regardless of whether confirmation of receipt is given. All notices sent to SOVAT must also be simultaneously sent to SOVAT's mailing address listed in the Order Form and to: hello@sovat.finance, and such other mailing and email addresses designated by SOVAT for such purpose. No notice to SOVAT shall be deemed delivered if not sent to both such mailing and email addresses or if any rejection, return to sender, mailer-daemon or bounce, or other message indicating the notice was not received is generated or otherwise received by Customer in respect of the notice.
16.6. Miscellaneous.
This Agreement, together with any data processing addendum or other addendum entered into by the Parties, constitute the entire agreement between the Parties and supersede any prior or contemporaneous understandings of the Parties with respect to the subject matter hereof. In the event of any contradiction between these Terms, the Order Form, the Privacy Policy, and any other document entered into between the Parties, the following order of precedence shall apply unless the Parties explicitly agree otherwise in writing: (i) the Order Form solely with respect to commercial terms expressly stated therein; (ii) these Terms; and (iii) the Privacy Policy. Otherwise, any terms in any purchase order issued which contradict or are in addition to those set forth in this Agreement shall be of no force and effect, even if the purchase order is accepted by SOVAT. As used in this Agreement, "Affiliate" means, with respect to a Party, any person, organization, or entity controlling, controlled by, or under common control with, such Party, where "control" means (i) the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management, or policies of a person, organization, or entity, whether through the ownership of voting securities, by contract, or otherwise; (ii) owning more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity; or (iii) the power to directly or indirectly elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity. If any provision of this Agreement is held to be invalid or unenforceable, (a) the remainder will remain in full force and effect, and (b) the invalid provision shall be substituted with an enforceable provision that most closely approximates the original legal and economic effect of the invalid provision. This Agreement may only be amended by an instrument in writing signed by each of the Parties hereto, except that SOVAT may update the Privacy Policy in accordance with its terms. Notices, waivers, discharges, modifications, amendments, orders, addendums, or other writings required under or made in connection with this Agreement shall not be valid unless in writing and signed by a duly authorized representative of the Party against whom enforcement is sought. No waiver shall operate as a continuing waiver, unless expressly agreed otherwise by the Party against whom enforcement of such waiver is sought. Headings are for convenience and shall not be used in interpreting these Terms. The Parties are sophisticated and have been represented by lawyers who have carefully negotiated the provisions hereof. As a consequence, the Parties do not intend that the presumptions of any laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement and therefore waive their effects. Any right or remedy set forth in these Terms is, unless expressly stated otherwise, without exclusion of, or limitation to, other rights or remedies available to a Party. This Agreement may be executed electronically, by exchange of scanned signatures, clickwrap acceptance, and/or in any number of counterparts.