Last Updated: 1.28.2019
The website located at www.lumatax.com (the “Site”) is owned and operated by LumaTax, Inc., a Delaware corporation. LumaTax provides “software as a service” to file and pay sales and use tax returns in the United States and other services, such as mobile applications and audit defense subscription service (collectively, the Site, all services offered through the Site and all applications made available by LumaTax are the “Services”).
These Terms of Service (“Terms”) are applicable and govern access to and use of the Services. These Terms are supplemental to and should be read in conjunction with specific terms and conditions of the pricing schedule and order form (found at terms-of-service) for purchasing Services (the “Plan Document(s)”). These Terms, together with any applicable Plan Document(s), are a binding agreement (“Agreement”) between LumaTax and Customer. The term “Customer” means the legal business entity, organization, or other party that uses the Site or orders Services from LumaTax. By accessing or using the Services, Customer is accepting these Terms and the individual accepting these Terms on behalf of Customer represents that she or he has the right, authority, and capacity to enter into the Agreement and to bind Customer to the Agreement.
THESE TERMS: (A) REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS; (B) LIMIT THE REMEDIES AVAILABLE TO CUSTOMER IN THE EVENT OF A DISPUTE; AND (C) LIMIT THE AMOUNT OF ANY RECOVERABLE DAMAGES.
1. CUSTOMER ACCOUNTS
1.1 Account Creation. In order to use certain services, Customer must register for a LumaTax account through the Site (an “Account”). Customer will be required to provide certain information as prompted during registration, including but not limited to billing information and designation of a specific person authorized by Customer to manage the Account, including the creation of usernames and passwords for Customer’s employee(s), contractor(s), agent(s) or other persons authorized by Customer to access and use Services on behalf of Customer (Customer’s “Authorized Users”).
1.2 Customer Representations and Warranties. In addition to other representations or warranties set forth in the Agreement, Customer represents and warrants that: (a) all information the Customer provides in connection with the Services, including billing information, is current, accurate, and complete (b) Customer will update the information as necessary to maintain its status as current, accurate and complete, (c) Customer has the authority to perform its obligations under the Agreement, and (d) Customer does not conduct business for any unlawful purpose.
1.3 Account Responsibilities. Customer is responsible for maintaining the status of its Authorized Users and the confidentiality of all login credentials (i.e. usernames and passwords) and other information related to Customer’s Account (collectively “Account Information”). Customer will contact LumaTax immediately if (a) Customer knows or suspects Account Information is lost, stolen, or disclosed to an unauthorized person; (b) the Account has been compromised such as any known or suspected unauthorized access or use of the Account; or (c) any other security breach regarding Customer’s Account or the Services that is known or suspected to have occurred or is reasonably likely to occur. Additionally, Customer is fully responsible for all activities that occur under the Account whether Customer is aware of the activity or has authorized the activity or not. Customer will ensure that its Authorized Users comply with all of Customer’s obligations under this Agreement, and 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. LumaTax is not and will not be liable for any loss or damage arising from any use of Customer’s Account by an Authorized User or Customer’s failure to comply with Customer’s responsibilities as set forth in this Agreement.
2. PLANS, SUBSCRIPTIONS, AND PAYMENT
2.1 Purchasing a Plan. To use certain services, Customer must purchase a plan for the Account (each, a “Plan”) by following the directions on the Site. The price, number of returns that may be processed and filed (i.e., quantity), and term of the Plan will be set forth in the Plan Document(s) at the time of purchase. Customers are not entitled to a refund for a pre-paid Plan (or any remaining portion) if the Plan is terminated before the end of the applicable term. LumaTax may change the pricing, from time to time in its sole discretion, by (a) updating the Site and/or (b) sending a price change notice email to Customers; provided however that any price changes will not take effect for Customer before the end of the applicable term of a pre-paid Plan, if any purchased by Customer. Notwithstanding the foregoing, LumaTax may correct pricing errors in its sole discretion, and such corrections shall apply immediately.
2.2 Purchasing a Subscription. Eligible Customers must purchase a subscription for the Account to use the audit defense services (each, a “Subscription”) by following the directions on the Site. The Subscription price, transactional record period applicable to the Subscription, communication authorization (allowing LumaTax to communicate with the auditing authority and/or a specified Certified Public Accountant (“CPA”), and term of the Subscription will be set forth in the Plan Document(s). Customers are not entitled to a refund for a pre-paid Subscription if the Subscription is terminated before the end of the applicable term.
2.3 Payment Terms. At the time of purchase, Customer agrees to pay the then-current applicable Plan (and if applicable Subscription) price as set forth in the Plan Document(s). Customer authorizes LumaTax (and a 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, in the amount of the total payment required for Customer’s purchase of a Plan (and if applicable Subscription). 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. LumaTax is solely responsible for taxes based upon its net income, assets, payroll, property, and employees.
3.1 License. LumaTax grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide right to access and use the Services solely for the Customer’s internal business operations during the term of applicable Plans. LumaTax reserves all other rights.
3.2 Automatic Software Authorization. The Services include components that may remotely transmit information from Customer and its Authorized User’s computer or device and other online service accounts to LumaTax in order to enable LumaTax to provide Customer with the Services. Customer hereby consents to and authorizes LumaTax to retrieve or receive and process such information.
3.3. Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer may not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Services; (b) Customer may not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) Customer may not access the Services in order to build a similar or competitive service; and (d) except as expressly stated herein or in the Plan Document(s), no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services will be subject to the terms of this Agreement. All copyright and other proprietary notices on any Services content must be retained on all copies thereof.
3.4. Modification, Suspension, or Discontinuance. LumaTax reserves the right, at any time, to modify the Services or any part thereof with or without notice, which may include temporary suspensions of Services to implement any modification. Customer agrees that LumaTax will not be liable for any modification or suspension of Services or any part thereof. To the extent Customer pre-paid for a Plan and provided that Customer is in full compliance with the Agreement, prior to discontinuing any material portion of the Services, LumaTax will use reasonable efforts to provide Customer at least fourteen (14) days’ notice of such discontinuance and, subject to LumaTax’s obligations under the terms of any applicable pre-paid Plan, LumaTax will not discontinue any material portion of the Services which would materially and adversely limit the type or scope of Services available to Customer under a current Plan, unless (a) compelled or required by law, (b) LumaTax believes it must discontinue the material portion of the Services in order to mitigate any potential legal or contractual liability, or (c) in connection with a sale of LumaTax or substantially all the company’s assets. Notwithstanding the foregoing, modifications and regular updates to the Site and Services that incidentally remove a feature of such modified or updated Services will not be deemed a discontinuance or breach of this Agreement.
3.5. Ownership. Excluding Customer’s Customer Data (defined below), Customer acknowledges that all the material and content available on the Site or through the Services, including all intellectual property rights, including copyrights, patents, trademarks, and trade secrets in such material or content are owned by LumaTax (or LumaTax’s licensors). This material and content includes each authorship tool, application and/or other component thereof, the underlying software, code, as well as all graphics, copy, music, videos, images, data, and the look and feel of the Site and each other portion of the Site and element of the Services. The provision of the Services does not transfer to Customer or any third party any rights, title or interest in or to such intellectual property rights.
3.6 Trademark Information. All trademarks, service marks, and logos displayed on the Site (the “Marks”) are the property of LumaTax or the property of other third parties. Customer is not permitted to use these Marks without LumaTax’s prior written consent or the consent of such third party which may own the Marks.
3.7 Audit Defense Service. Eligible Customers may purchase a subscription for audit defense services. Each eligible Customer who purchases a subscription for audit defense services is a “Subscriber.” LumaTax will retain that portion of a Subscriber’s Customer Data (defined below) for all transactions during the time period set forth in the Plan Document(s) (“Transactional Data”). If a Subscriber is audited by a taxing authority, LumaTax will (a) prepare audit working papers from the Transactional Data according to generally accepted accounting principles, highlighting all variances for the applicable time period; (b) provide a portal for the taxing authority and/or Subscriber’s CPA to access the Subscriber’s audit working papers; and (c) communicate with the taxing authority and/or Subscriber’s CPA regarding the audit as set forth in the Plan Document(s).
4. CUSTOMER DATA
4.1. Customer Data. Processing and filing sales and use tax returns requires information provided by Customer. “Customer Data” includes (a) any and all information provided, including information automatically uploaded or transferred, to LumaTax and LumaTax’s systems and servers by Customer or Authorized Users; (b) the resulting Customer unique output that is generated by the Services when processing the information provided by Customer; and (c) except as otherwise set forth in this Agreement, any other information provided by Customer in connection with its use of the Services. Data gathered through use of the Services related to the Services’ performance (e.g. analytics to improve or update the software will not be Customer Data and will belong solely to LumaTax). Customer is solely responsible for its Customer Data. Customer assumes all risks associated with use of Customer Data, including any reliance on its accuracy or completeness. Customer hereby represents that it has the authorization to consent to LumaTax’s use of Customer Data and that the Customer Data does not violate the Acceptable Use Policy (defined below). Because Customer alone is responsible for its Customer Data, Customer may expose itself to liability if, for example, the Customer Data violates the Acceptable Use Policy or any applicable laws. Customer agrees that any use of the Services contrary to or in violation of Customer’s representations and warranties in this Section 4.1 constitutes improper and unauthorized use of the Services.
4.2. Retention Policy. Except as expressly set forth in Plan Document(s) for audit defense service Subscribers, LumaTax is not obligated to backup any Customer Data. LumaTax therefore recommends that Customer create backup copies of any Customer Data at Customer’s sole cost and expense. In the event of a loss of Customer Data caused by LumaTax, LumaTax will use commercially reasonable efforts to recover the Customer Data. 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.
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, investigate, and/or take appropriate action against Customer in LumaTax’s sole discretion (including removing or modifying Customer Data, terminating Customer’s Account and this Agreement, and/or reporting Customer (or any Authorized User) to law enforcement authorities) if Customer (or any Authorized User) violates the Acceptable Use Policy (defined below) or any other provision of this Agreement or otherwise create potential liability for LumaTax or any other person.
5. ACCEPTABLE USE POLICY.
The following Section 5 sets forth LumaTax’s “Acceptable Use Policy.”
5.1 Unlawful or Harmful Use. Customer agrees not to use the Services in any manner or upload 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 agrees not to 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) attempt to 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.
Customer agrees to indemnify, defend and hold LumaTax (and its officers, directors, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party related to or arising out of: (a) Customer’s use of the Services; (b) Customer’s Customer Data; (c) Customer’s violation of this Agreement; or (d) Customer’s violation of applicable laws or regulations. The foregoing will also apply to actions of the Authorized Users, whether or not Customer had knowledge of their conduct. LumaTax reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify LumaTax (or its officers, directors, employees, and agents) and Customer agrees to cooperate with LumaTax’s defense of these claims. Customer agrees not to settle any matter without the prior written consent of LumaTax. LumaTax will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
7. LIMITED WARRANTY AND WARRANTY DISCLAIMERS.
7.1 Limited Warranty. Subject to Customer’s compliance with all terms and conditions of the Agreement, LumaTax provides limited warranties of accuracy and timeliness under the following terms:
(a) LumaTax guarantees the material accuracy of tax calculation results provided by the Services; provided, however, Customer must have provided accurate information and proper classifications of information to LumaTax. To the extent any material incorrect result was caused by Customer’s failure to provide accurate information or proper classification of information, LumaTax will not be responsible for an incorrect result. Additionally, LumaTax will not be responsible for an incorrect result to the extent that it was caused by the failure of the applicable taxing authority to timely and accurately provide correct and current tax rates, boundaries, rules, and classifications. Customer must notify LumaTax no later than the earlier of either (1) ten (10) days after a taxing authority finding of a negative audit assessment, or (2) forty-five (45) days after the date the Customer or taxing authority initially identified an issue that relates to the incorrect result provided by LumaTax. Such notice must be sent to LumaTax, Inc. 8799 Balboa Ave, Suite 280, San Diego, CA 92123. Customer must provide full and timely assistance to LumaTax in (a) investigating the nature and occurrence of the error, including providing LumaTax with access to Customer’s financial records, logs, reports or other relevant information reasonably related to the error; and (b) challenging the taxing authority if LumaTax. determines them to be incorrect. Upon becoming aware of a potential error related to an incorrect result, Customer must take reasonable steps to mitigate its losses.
(b) LumaTax guarantees Customers that sales and use tax returns for purchased Plans will be processed and timely filed with the taxing authority; provided the Customer must submit complete, adjusted, and reconciled data in the format required by LumaTax for each return by the tenth day of the month, unless another date is specified in the Plan Document(s). LumaTax will not be responsible for late filed returns if the Customer failed to submit complete, adjusted, and reconciled data in the format required by LumaTax by the tenth day of the month or other date specified in the Plan Document(s). If the Customer timely submits the required data in the required format, LumaTax will be responsible for all interest and penalties assessed as a result of any late filing. LumaTax is not responsible for any sales and use tax. The sole and exclusive remedy for LumaTax’s breach of this limited timeliness warranty, is LumaTax’s payment of all interest and penalties assessed as a result of a late filing by LumaTax.
7.2 WARRANTY DISCLAIMERS.
EXCEPT FOR THE LIMITED ACCURACY AND TIMELINESS WARRANTIES PROVIDED IN SECTION 7.1 ABOVE, THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” LUMATAX EXPRESSLY DISCLAIMS (A) ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT; AND (B) ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING AUDIT DEFENSE SERVICES. LUMATAX MAKES NO WARRANTY THAT THE SERVICES: (A) WILL MEET CUSTOMER’S REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM AND PURSUANT TO THE LIMITED ACCURACY AND TIMELINESS WARRANTIES AND REMEDIES PROVIDED IN SECTION 7.1 ABOVE, IN NO EVENT WILL LUMATAX BE LIABLE TO CUSTOMER, 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 OR CUSTOMER’S USE OF, OR INABILITY TO USE, THE SERVICES, LOST CUSTOMER DATA, OR DATA RECOVERY COSTS. SUCH LIMITATIONS APPLY EVEN IF LUMATAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, LUMATAX’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SITE OR SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE THOUSAND US DOLLARS ($1,000) OR (B) AMOUNTS CUSTOMER PAID LUMATAX IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER AND CUSTOMER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. TERM AND TERMINATION.
This Agreement will remain in full force and effect while Customer uses the Services. Unless otherwise stated in Plan Document(s), LumaTax may (a) suspend Customer’s rights to use the Services, including Customer’s access to the Account, and/or terminate this Agreement immediately upon Customer’s breach of this Agreement, including for any use of the Services in violation of this Agreement or (b) upon at least fourteen (14) days’ notice, terminate the Agreement at any time for any reason (provided Customer will be entitled to a pro rata refund of any pre-paid Plan(s) for any period post-termination, if applicable). Upon termination of this Agreement, Customer’s Accounts and right to access and use the Services will terminate immediately. Customer understands that any termination of Customer’s Account may involve deletion of all Customer Data. LumaTax will not have any liability whatsoever for deletion of Customer Data upon any termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.3 – 11.
10. ARBITRATION AGREEMENT.
PLEASE READ THIS CAREFULLY. IT AFFECTS CUSTOMER’S RIGHTS.
10.1. MANDATORY ARBITRATION. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, ANY AND ALL CONTROVERSIES, DISPUTES, DEMANDS, COUNTS, CLAIMS, OR CAUSES OF ACTION, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE OR TORT (INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (“DISPUTE”) BETWEEN CUSTOMER AND LUMATAX AND/OR LUMATAX’S EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS, REGARDING OR RELATING TO THE SITE, SERVICES OR THIS AGREEMENT, WILL BE RESOLVED EXCLUSIVELY THROUGH BINDING AND CONFIDENTIAL ARBITRATION. ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. THE ARBITRATOR WILL DECIDE ALL THRESHOLD QUESTIONS, INCLUDING BUT NOT LIMITED TO, ISSUES RELATING TO THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THIS SECTION 10.
10.2. Rule of Arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”), As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the then current AAA’s rules for commercial arbitration or, if the arbitrator deems them applicable, the procedures for consumer-related disputes, and these rules will govern the payment of all filing, administration, and arbitrator fees, unless this section expressly provides otherwise. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Customer may visit the AAA website at http://www.adr.org. The party submitting a dispute for resolution through arbitration will pay AAA’s filing fee. Each party will pay their pro rata share of administration and arbitrator fees under AAA’s rules; provided however, if AAA’s consumer arbitration rules are applicable, LumaTax will make arrangements to pay all necessary administration and arbitrator fees to AAA. If AAA’s consumer arbitration rules are applicable and Customer loses the claim(s) asserted against LumaTax, Customer agrees to reimburse LumaTax for Customer’s pro rata share of administration and arbitrator fees; provided, however, if Customer demonstrates that the cost of arbitration will be prohibitive as compared to the costs of litigation, LumaTax will pay as much of the administration and arbitrator fees as the arbitrator deems necessary to prevent the cost of arbitration from being cost prohibitive compared to litigation. The party that ultimately loses will pay the reasonable documented attorneys’ fees and costs of both parties. The arbitration will be held in Seattle, Washington. If the value of the relief sought is less than $25,000, the arbitration will be conducted based solely on written submissions; provided however, either party may request to have the arbitration conducted by telephone or in-person hearing, which request shall be subject to the arbitrator’s discretion. Attendance at any in-person hearing may be made by telephone unless the arbitrator requires otherwise. Keeping in mind that arbitration must remain a fast and economical process, no discovery or exchange of information between parties is contemplated. Upon request by either party, the arbitrator may direct specific information be exchanged and may issue a protective order limiting the use and disclosure of exchanged information; provided however, the scope of information the arbitrator may direct to be exchanged shall be limited to that which the arbitrator determines is needed to provide a fundamentally fair process. Either party may file a dispositive motion to narrow the issues. The parties agree to the following additional rules of arbitration: (1)ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON OR ENTITY’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) the arbitrator’s award will be final and may be enforced in any court of competent jurisdiction; and (4) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law.
10.3. Exception. Notwithstanding the foregoing, either of the parties may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in King County, Washington. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in King County, Washington in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within King County, Washington for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
10.4. Severability. With the exception of the additional rules subparts (1) and (2) in Section 10.2 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either additional rules subparts (1) and (2) in Section 10.2 above (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither of the parties will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in King County, Washington.
10.5. Termination. Notwithstanding any provision in this Agreement to the contrary, if LumaTax seeks to terminate the Dispute Resolution section as included in the Agreement, any such termination will not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and will not be effective as to any claim of which Customer provided LumaTax with written notice prior to the date of termination.
10.6. Governing Law. Any and all controversies, disputes, demands, counts, claims, or causes of action between Customer and LumaTax’s employees, agents, successors, or assigns, regarding or relating to these the Site, Services or this Agreement, will be exclusively be governed by the internal laws of the State of Washington, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the arbitration provision will be governed by the Federal Arbitration Act.
11.1. Changes to Terms of Service. These Terms subject to occasional revision, and if LumaTax makes any substantial changes, LumaTax may notify Customer by prominently posting notice of the changes on the Site. For any current pre-paid Plans, any changes to this Agreement will be effective after termination of the pre-paid Plan. These changes will be effective immediately for Customers who have not purchased a Plan. Continued access or use of the Services following notice of such changes will indicate Customer’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.3. Assignment. This Agreement, and Customer’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Customer without LumaTax’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees. Notwithstanding the foregoing, LumaTax 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 assets, or any business division covering substantially all of the Services. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective and permitted assignees.
11.4. Electronic Communications. The communications between Customer and LumaTax use electronic means, including email, any live chat feature or messaging on the Site, and or posting and notifications to the Account. For contractual purposes, Customer (a) consents to receive communications from LumaTax in electronic form and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that LumaTax provides to Customer electronically satisfies any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect Customer’s non-waivable rights.
11.5 Third Party Applications. LumaTax is not responsible for and does not in any way endorse any Third Party Applications or websites linked to LumaTax’s Site or Services. “Third Party Applications” means computer software programs and other technology provided or made available to Customer by third parties.
11.5. Contact Information. Notices to LumaTax may be sent to: LumaTax, 8799 Balboa Ave, Suite 280, San Diego CA 92123 and to: email@example.com