LUMATAX TERMS OF SERVICE
Last Updated: May 7, 2021
These LumaTax Terms of Service (these "Terms") are between LumaTax, Inc., a Delaware corporation ("LumaTax"), and you, the entity agreeing to this Agreement ("Customer").
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
1.1 License. Subject to the terms and conditions of this Agreement, LumaTax grants Customer and its Authorized Users a limited, non-exclusive, non-transferable, non-sublicensable, worldwide (except as otherwise set forth in Section 2.1) right to access and use the LumaTax Services for the Customer’s business purposes for the term of each Order Form. "LumaTax Services" means the web-based service provided by LumaTax at LumaTax.com (Sales Tax Hub) that allows users to manage economic nexus exposure, reports, registration, and manage sales and use tax compliance in the United States, including all related applications, mobile applications, subscription services, and all other services offered through the LumaTax website, including, without limitation, any customizations, enhancements, updates, upgrades, new releases, defect corrections and other modifications thereto.
1.2 Additional Services. Subject to the terms and conditions of this Agreement and each Order Form, LumaTax will perform for Customer certain additional services, as further set forth in an Order Form ("Additional Services," collectively with the LumaTax Services, the "Services").
1.3 Automatic Software Authorization. In order to enable LumaTax to provide Customer with the Services, the Services include components that may remotely transmit information from computers or devices and other online service accounts of Customer and its Authorized Users to LumaTax. Customer (by itself and on behalf of its Authorized Users) hereby consents to and authorizes LumaTax to retrieve, receive, process, and store such information.
1.4 Restrictions. The rights granted by LumaTax to Customer in this Agreement are subject to the following restrictions:
(a) neither Customer nor any of its Authorized Users may license, sell, rent, lease, transfer, assign, distribute, or otherwise permit third parties (other than those third parties expressly permitted in this Agreement) to use the Services;
(b) neither Customer nor any of its Authorized Users may modify, make derivative works of, disassemble, reverse compile or reverse engineer (except to the extent expressly permitted under applicable law) any part of the Services;
(c) neither Customer nor any of its Authorized Users may intentionally access or use the Services for the purpose of developing similar or competitive products or services;
(d) neither Customer nor any of its Authorized Users may access or use the Services for benchmarking purposes or to develop any product or service that is similar to or competitive with the Services; and
(e) except as expressly stated in this Agreement, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
1.5 Any use of the future release, update, or other addition to functionality of the Services by Customer will be subject to the terms of this Agreement. All copyright and other proprietary notices on any Services content must be retained and may not be altered on all copies thereof.
1.6 Modification or Discontinuance. LumaTax reserves the right, at any time, to modify or discontinue certain features or functionalities of the Services (such as upgrades, updates, and bug fixes), which may include temporary suspensions of the Services to implement such modification. Prior to discontinuing any material portion of the Services covered by a Plan (as defined below), LumaTax will use reasonable efforts to provide Customer at least 30 days’ notice of such discontinuance. LumaTax will not discontinue any material feature or function of the Services available to Customer under a current Plan, unless: (a) such discontinuance is compelled or required by applicable law; or (b) such discontinuance is made due to Customer’s breach of this Agreement.
1.7 Reservation of Rights. Excluding Customer Data (as defined below), Customer acknowledges that all the material and content available on the Services or through the Services, including all intellectual property rights, including copyrights, patents, trademarks, and trade secrets (collectively, "Intellectual Property Rights") in such material or content are owned by LumaTax (or LumaTax’s licensors). Such material and content include each item of work of authorship, tool, application and/or other component thereof, the underlying software, code, as well as all graphics, copy, audios, videos, images, data, and the look and feel of the Services and all other portions and elements of the Services, including all Intellectual Property Rights therein (collectively, "LumaTax IP"). Other than rights that are expressly granted to Customer under this Agreement, nothing in this Agreement transfers to Customer or any third party any right, title or interest in or to LumaTax IP.
1.8 Trademark Information. All trademarks, service marks, and logos of LumaTax, including those displayed on the Services (the "Marks") are the property of LumaTax or its licensors. Customer is not permitted to use any of the Marks without LumaTax’s prior written consent.
2. CUSTOMER ACCOUNTS
2.1 Account Creation. In order to use the Services, Customer must register for a LumaTax account (an "Account"). Customer will be required to provide certain information as prompted during registration, including billing information and designation of a specific person authorized by Customer to manage the Account, including the creation of account information such as usernames and passwords for Authorized Users. "Authorized Users" means Customer’s director(s), officer(s), employee(s), contractor(s), agent(s), auditor(s), consultant(s), subcontractor(s), client(s) and other persons who are located in countries and territories outside of the European Union and who are authorized by Customer to access and use the Services.
2.2 Customer Representations and Warranties. Customer represents and warrants that (a) Customer has the authority to perform its obligations under this Agreement; (b) to Customer’s knowledge, all information provided to LumaTax by or on behalf of Customer is current, accurate, and complete; and (c) Customer will update and maintain such information to be current, accurate and complete.
2.3 Account Responsibilities. Customer will (a) maintain the confidentiality of all login credentials (i.e. usernames and passwords) and (b) keep its Account information current. Customer will contact LumaTax if Customer knows or suspects that: (i) Customer Data or Customer’s login credentials is lost or disclosed to, or stolen or obtained by, any unauthorized person; (ii) Customer’s Account has been compromised such as unauthorized access or use of the Account; or (iii) any other security breach regarding Customer’s Account or the Services. LumaTax may temporarily suspend or deactivate an Account if it reasonably believes that continued use of such Account poses a security threat to the Services, Customer Data, or LumaTax. Customer will ensure that its Authorized Users comply with all of Customer’s obligations under this Agreement. Customer is solely responsible for the acts and omissions of its Authorized Users relating to this Agreement as though they were the acts and omissions of Customer, and Customer will be liable for any loss or damage arising from or related to its (or an Authorized User’s) failure to comply with its obligations hereof.
3. PLANS AND PAYMENT
3.1 Purchasing a Plan. To use the Services, Customer must purchase a plan for its Account (each, a "Plan") by submitting an order form. Upon LumaTax’s acceptance of an order form submitted by Customer, the terms of this Agreement will govern that order form (such accepted order form, an "Order Form"). Each Order Form is hereby incorporated into this Agreement by this reference. To the extent there is any inconsistency or conflict between terms of an Order Form and these Terms, these Terms will govern unless that Order Form explicitly provides that its terms will control and supersede a specific provision in these Terms (in which case, for clarity, the terms of that Order Form will only apply to that Order Form). The terms of the Plan, including the price, scope of the Services, utilization (i.e., quantity), and the term (i.e., duration), will be as set forth on each applicable Order Form. LumaTax may not change the pricing of a Plan during the then-current term of that Plan. LumaTax may change its pricing on a going-forward basis, provided that LumaTax will provide Customer with written notice of such pricing change at least 60 days before the end of the then-current term, and such pricing change then will become effective for the following renewal.
3.2 Payment Terms. Customer authorizes LumaTax (and any third party payment processing vendor that LumaTax may use) to automatically debit Customer’s bank account or credit card account, according to billing information provided by Customer, at the applicable interval and in the applicable amounts required for Customer’s subscription, as set forth in each applicable Order Form. Customer is responsible for any insufficient funds or charge-back fees, and authorizes LumaTax to debit Customer’s bank account or credit card account for all such fees. Pricing is exclusive of all taxes, levies or duties imposed by taxing authorities with respect to Customer’s purchase of Services; and Customer is responsible for payment of all applicable taxes, levies, or duties related to (a) the furnishing of the Services pursuant to this Agreement or (b) Customer’s use thereof. LumaTax is solely responsible for taxes based upon its net income, assets, payroll, property, and employees.
4. CUSTOMER DATA
4.1 Customer Data. The Services may require Customer to provide Customer Data. "Customer Data" means: (a) any and all information provided, including information uploaded or transferred, to LumaTax, the Services and LumaTax’s systems and servers by Customer or Authorized Users; and (b) any other information provided or otherwise made available by Customer to LumaTax in connection with LumaTax’s provision of the Services to Customer.
(a) LumaTax hereby grants to Customer a perpetual, non-exclusive, worldwide, royalty-free, and fully paid up license to use all written output created by or generated through the Services using Customer Data, including any on-line or downloadable reports for Customer’s business purposes.
4.2 LumaTax Data. Notwithstanding the foregoing, data gathered through use of the Services or related to the Services’ performance that does not (a) contain Customer Data or Customer’s Confidential Information; or (b) identify Customer or any Authorized User and cannot be traced back to any of the foregoing, will belong solely to LumaTax.
4.3 Representation and Warranties on Customer Data. Customer assumes all risk associated with its use of Customer Data, including any reliance on its accuracy or completeness. In addition to other representations or warranties set forth in this Agreement, Customer hereby represents and warrants that: (a) Customer has all rights and authorization necessary under applicable law to grant LumaTax the licenses set forth in Section 4.5; (b) Customer Data will not contain any data or information that would subject LumaTax to the requirements under the General Data Protection Regulation 2016/679 or its applicable member state national data privacy legislation or requirements; and (c) any use of Customer Data by LumaTax as contemplated by this Agreement does not and will not cause LumaTax to violate any applicable laws.
4.4 Retention Policy. Except as otherwise provided under Customer’s subscription to Additional Services (such as audit defense services), LumaTax is not obligated to backup any Customer Data. Customer is responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. During the Term, in the event of any loss of Customer Data caused by LumaTax, LumaTax will use commercially reasonable efforts to recover the Customer Data. In addition to LumaTax’s right to review Customer Data under Section 4.6, LumaTax reserves the right to withhold, remove and/or discard Customer Data, without notice, at any time in its sole discretion. LumaTax has no obligation to maintain or provide any Customer Data, however, LumaTax will use commercially reasonable efforts to store and make available Customer Data during the term of this Agreement (when there is an Order Form in effect) for regulatory compliance and evidentiary purposes in the event Customer has to resolve a dispute with a government body.
4.5 License. Customer hereby grants to LumaTax a non-exclusive, royalty-free and fully paid, worldwide license to use, reproduce, store, transmit and prepare derivative works of Customer Data to provide the Services under this Agreement, and solely in aggregate and anonymized form, to improve the Services. Customer reserves to itself all rights to Customer Data (including all Intellectual Property Rights in and to Customer Data) that are not expressly granted to LumaTax under this Agreement.
4.6 Review of Customer Data. While LumaTax is not responsible for any Customer Data, LumaTax reserves the right (but has no obligation) to review any Customer Data and remove Customer Data found to be in violation of this Agreement. LumaTax also reserves the right to, upon notice, suspend Customer’s Account associated with such Customer Data subject to removal, until the issue is resolved.
5. ACCEPTABLE USE POLICY
5.1 Unlawful or Harmful Use. Customer will not access or use the Services in any manner or provide any Customer Data:
(a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or
(c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
5.2 Improper Purposes. In addition, Customer will not access or use the Services to:
(a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data;
(b) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks;
(c) gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means;
(d) harass or interfere with another user’s use and enjoyment of the Services; or
(e) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services.
6.1 Customer will indemnify, hold harmless and defend LumaTax (and its officers, directors, employees, and agents) from and against any and all losses, claims, liabilities, costs and expenses (including taxes, fees, fines, penalties, interest, reasonable expenses of investigation and attorneys’ fees and disbursements) as incurred (collectively, "Damages") arising out of or relating to any third party claim based on (a) Customer’s breach of any representation or warranties with respect to Customer Data in this Agreement; or (b) Customer’s gross negligence or willful misconduct.
6.2 LumaTax will indemnify, hold harmless and defend Customer (and its officers, directors, employees, and agents) from and against, any Damages arising out of or relating to any third party claim (a) alleging that the LumaTax Services infringe, misappropriate, or violate the third party’s intellectual property rights; or (b) arising from or relating to LumaTax’s gross negligence or willful misconduct. Notwithstanding the foregoing, LumaTax will have no liability under this Section 6.2 to the extent such third party claims arises from (i) the combination of the LumaTax Services with other products not provided or authorized by LumaTax, (ii) the modification of the LumaTax Services by a party other than LumaTax or not authorized by LumaTax, or (iii) Customer’s use of the LumaTax Services other than in accordance with the terms of this Agreement, in each case only to the extent such infringement would not have occurred but for such combination, modification or use. This Section 6.2 states the sole and exclusive liability of LumaTax, and the sole and exclusive remedy of Customer, with respect to any claim of intellectual property misappropriation, infringement, or violation.
6.3 With respect to each claim subject to indemnification under Section 6.1 or 6.2, the indemnified party will provide the indemnifying party with: (a) prompt written notice (in no event to exceed 5 business days) of any claim, suit, or demand of which it becomes aware; (b) the right to assume the exclusive defense and control of any matter that is subject to indemnification (provided that the indemnifying party will not settle any claim unless it unconditionally releases the indemnified party of all liability and does not admit fault or wrongdoing by the indemnified party); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter (at the indemnifying party’s expense).
7. LIMITED WARRANTY AND WARRANTY DISCLAIMERS
7.1 Limited Warranty. LumaTax represents and warrants that:
(a) LumaTax has all rights and authority required to enter into this Agreement, and to provide the Services free from all liens, claims, encumbrances, security interests and other restrictions;
(b) the Services will conform in all material respects to any related documentation provided by LumaTax to Customer; and
(c) the Services will not, to LumaTax’s knowledge, contain any computer code or any other procedures, routines or mechanisms designed by LumaTax (or its personnel or licensors) to cause damage or corrupt any of Customer’s or Authorized User’s data, systems, equipment or communications, or otherwise interfere with Customer’s or Authorized User’s operations.
7.2 Warranty Disclaimers
(a) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 7, THE SERVICES ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND LUMATAX MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS. LUMATAX EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
(b) Customer acknowledges that the quality of the results generated by the Services largely depend on the quality, accuracy, and completeness of Customer Data. Except as set forth in Section 7.1(b), LumaTax will not be responsible for any results from using the Services, including an incorrect result caused by Customer Data or the failure of the applicable taxing authority to timely and accurately provide correct and current tax rates, boundaries, rules, and classifications. In the event Customer receives a negative audit assessment based on a result generated from the Services, LumaTax will use commercially reasonable efforts to investigate the nature and occurrence of the error, provided that Customer (i) promptly notifies LumaTax of the negative audit assessment; (ii) provides LumaTax with reasonable assistance in its investigation; and (iii) takes reasonable steps to mitigate its losses related thereto.
8. CONFIDENTIAL INFORMATION
8.1 Receiving and Disclosing Parties. To the extent a party receives or acquires Confidential Information directly or indirectly under this Agreement, it will be referred to as the "Receiving Party"; to the extent a party discloses Confidential Information under this Agreement, it will be referred to as the "Disclosing Party." "Confidential Information" will mean any materials furnished by the Disclosing Party to the Receiving Party (a) that are expressly identified or marked as "confidential" at the time of their delivery; or (b) which would reasonably be understood to be confidential or sensitive based on the circumstances of disclosure or nature of the information.
8.2 Exclusions. Confidential Information will not include, and the obligations herein will not apply to, information that is (a) already known to the Receiving Party without an obligation of confidentiality at the time of disclosure and was not acquired directly or indirectly from the Disclosing Party, (b) publicly known at the time of disclosure, or becomes publicly known thereafter through no wrongful act of the Receiving Party, (c) rightfully received from a third party without restriction and without breach of this Agreement, (d) approved for release by written authorization of the Disclosing Party, or (e) developed or may hereafter be developed independently by the Receiving Party without reference to or use of any Confidential Information obtained from the Disclosing Party.
8.3 Duty of Care. Each party will maintain in confidence all Confidential Information observed, obtained or received from the other and will not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, that each party may disclose the other party’s Confidential Information to the Receiving Party’s officers, employees, consultants and legal advisors who need access to such Confidential Information to exercise its rights or perform its obligations under this Agreement, and the Receiving Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors if such third parties agree to maintain the confidentiality of such Confidential Information. Each party will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Each party will ensure that any individual or entity receiving or using Confidential Information for or on behalf of such party under this Agreement will be bound by terms at least as protective of the Disclosing Party’s Confidential Information as those contained in this Agreement. Each Receiving Party will notify the Disclosing Party promptly of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and to provide reasonable assistance to such Disclosing Party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure. Subject to Section 4.4 whenever requested by a Disclosing Party, and, in any event, upon the termination of this Agreement, a Receiving Party will immediately, at its own expense, return to the Disclosing Party all manifestations of the Confidential Information (except as otherwise required by applicable law) or, at the Disclosing Party’s option, destroy, at its own expense, all such Confidential Information (except for copies that may be stored in backup media, latent data, or metadata). The Receiving Party will deliver to the Disclosing Party a certification, in writing signed by an officer, that all such Confidential Information has been destroyed.
8.4 Exceptions. Notwithstanding anything contained in this Agreement to the contrary, the Receiving Party will be permitted to disclose Confidential Information if, and to the extent, such disclosure is required to be made pursuant to governmental authority, law, regulations, rules or valid subpoena, other administrative or legal process or court order, in which event the Receiving Party will, to the extent permissible, provide prior notice to the Disclosing Party of such requirement in order to permit the Disclosing Party to contest such requirement, and cooperate with the Disclosing Party in limiting the scope of the proposed disclosure and obtaining further means for protecting the confidentiality of the Confidential Information. Any information so disclosed under this Section 8.4 will otherwise continue to be subject to the protections of this Section 8.
8.5 Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the parties agree that the non-breaching party will have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, PROVISION OF SERVICES, USE OR INABILITY TO USE THE SERVICES, LOST CUSTOMER DATA, OR DATA RECOVERY COSTS. SUCH LIMITATIONS APPLY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 9, EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE HUNDRED THOUSAND US DOLLARS ($100,000) OR (B) AMOUNTS PAID TO LUMATAX IN THE 12 MONTHS PRIOR TO THE CAUSE OF ACTION. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT WILL NOT APPLY TO DAMAGES (1) RELATING TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, (2) RESULTING FROM THE GROSS NEGLIGENCE, BAD FAITH OR THE WILLFUL OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS PERSONNEL, (3) STEMMING FROM PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE CAUSED BY A PARTY OR ITS PERSONNEL, (4) ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (5) ARISING FROM EITHER PARTY’S BREACH OF SECTION 8.
10. TERM AND TERMINATION
10.1 Term. This Agreement will commence upon the Effective Date and continue for so long as an Order Form is in effect, unless terminated earlier in accordance with the terms of this Agreement. Unless otherwise provided on an Order Form, each Order Form will automatically renew for additional successive 1-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
10.2 Termination for Material Breach. Either party may terminate this Agreement upon prior written notice if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. If Customer fails to timely pay any fees and fails to cure its non-payment within 30 days of receiving written notice thereof from LumaTax, LumaTax may suspend performance of the Services until it receives all amounts due. If this Agreement is terminated by Customer for LumaTax’s breach under this Section 10.2, LumaTax will issue Customer a pro-rata refund for any prepaid fees.
10.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) all Order Forms will terminate; (b) Customer’s access to the Services will automatically terminate; (c) all outstanding payment obligations of Customer that have accrued prior to the effective date of the expiration or termination become immediately due and payable; (d) any and all liabilities accrued prior to the effective date of the expiration or termination will survive; and (e) the following provisions will survive: Sections 1.6, 1.7, 4.1(i), 4.2, 4.4, 4.5 (except for the license to Customer Data for provision of the Services), 6, 7, 8, 9, 10.3, and 11.
11.1 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, without reference to its choice of law rules. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington in connection with any action arising out of or in connection with this Agreement (subject to Section 11.2).
11.2 Dispute Resolution. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and Mediation Procedures, to be conducted in Seattle, Washington. The arbitration proceeding will be conducted by one arbitrator appointed in accordance with such rules, provided that the arbitrator must have significant relevant industry experience and be mutually acceptable to the parties. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
11.4 Modifications to These Terms. LumaTax reserves the right, at its own discretion, to update or modify these Terms at any time by publishing the updated or modified Terms at https://www.lumatax.com/terms-of-service. Unless LumaTax specifies an effective date, the updated or modified Terms will be effective immediately upon publication. Notwithstanding anything to the contrary, if there is an Order Form in effect at the time of such publication, the updated or modified Terms will only become effective with respect to such Order Form upon renewal (including automatic renewal) of the Order Form. By choosing to renew an Order Form (including by not providing the required notice of non-renewal in accordance with this Agreement), Customer agrees to be bound by the updated or modified Terms beginning on the renewal date. Except as provided in this Section 11.4, this Agreement may be changed only by a written agreement signed by an authorized agent of each party. LumaTax will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, purchase order, or otherwise, unless LumaTax specifically agrees to such provision in writing with a signature from an authorized agent of LumaTax.
11.5 Miscellaneous. Either party’s failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation". If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. LumaTax is an independent contractor and service provider to Customer, and neither party is an agent or partner of the other.
11.6 Force Majeure. Except for any payment obligations under the Agreement, neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control and without any fault, of such party (each, a "Force Majeure Event"). In such event, the performance times will be extended for a period of time equivalent to the time lost because of the Force Majeure Event; provided, however, if the Force Majeure Event continues for more than 90 days, the party not relying on the Force Majeure Event may terminate this Agreement in whole or in part, upon notice to the other party.
11.7 Assignment. This Agreement, and either party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other party’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s prior written consent as part of a merger, or a sale or transfer of all or substantially all of its business, assets, or equity, or any business division covering substantially all of the business related to this Agreement. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assignees.
11.8 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on an Order Form and with the appropriate postage affixed. Notices to LumaTax must be sent to 8799 Balboa Ave, Suite 280, San Diego, CA 92123, with an email copy to: email@example.com. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.8. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.9 Third Party Applications. LumaTax is not responsible for and does not in any way endorse any third-party applications or websites linked to or from LumaTax’s website or Services, but which are not incorporated into the Services.