United States: California Tax Developments

Welcome to the Reed Smith California State Tax Quarterly Update for the 3rd Quarter of 2013. With fall in full swing and summer an almost distant memory, we will update you on recent happenings in the California tax world, including: (1) a long-overdue legislative relief measure for a California incentive program; (2) a recent Superior Court case on unitary business and business income issues; (3) another recent Superior Court case on the sales tax treatment of licensed software; (4) several important property tax decisions involving the taxation of refinery property and intangibles; and (5) recent attempts by Franchise Tax Board ("FTB") auditors to use taxpayer reports of federal audit changes to improperly raise unrelated issues that would otherwise be out-of-statute.

For more information on any of these developments, contact one of the authors or the Reed Smith State Tax attorney with whom you usually work.

Legislative Update

The Legislature provides relief from retroactive taxation for California investors who qualified for the Qualified Small Business Stock incentives

On October 4, 2013, Governor Brown signed Assembly Bill 1412,1 which provides relief to taxpayers whom the FTB tried to assess for taking Qualified Small Business Stock ("QSBS") gain exclusions and deferrals under Rev. & Tax. Code sections 18038.5 and 18152.5, respectively, for tax years 2008 through 2012. Those provisions were modeled after federal income tax provisions providing for the exclusion or deferral of gain from the sale or exchange of QSBS.2

The legislation provides relief for taxpayers impacted by the decision in Cutler v. Franchise Tax Board.3 In that case, the Court of Appeal declared unconstitutional the California QSBS requirements that 80 percent eligible businesses' payroll and assets be in California. The FTB wrongly interpreted the court's holding to mean that the statutes were entirely unenforceable. As a consequence, the FTB began issuing retroactive notices of proposed assessment to taxpayers that had previously utilized the gain exclusion and deferral provisions—more than four years after the tax years had ended.

The FTB's actions were a black eye for California, prompting many California investors—who were the financial backbone of the state's startup businesses—to leave the state. By enacting AB 1412, the legislature ensured that investors who followed the rules would not be punished.

Takeaway: Although AB 1412 affected investors who had already claimed the QSBS gain exclusion or deferral on a previously filed return, it will also ensure that California taxpayers who did not previously claim the QSBS exclusion or deferral can do so for years that are still open by statute. Such individuals should file refund claims to ensure they get the benefit of this incentive. Also, individuals who were contacted by the FTB and paid taxes based on the FTB's prior policy should request refunds if they are not contacted by the FTB by November 30, 2013.

Comcast trial begins in Los Angeles Superior Court

On September 25, 2013, trial officially began in Comcon Prod. Services I., Inc. v. Franchise Tax Board.4 The case involves two principal issues: (1) whether Comcast was unitary with QVC, its majority-owned subsidiary; and (2) whether Comcast's receipt of a termination fee as a result of a failed merger constituted business income.

The trial has been highly anticipated since the California State Board of Equalization ("BOE") issued its decision in February 2012. The BOE voted 3-2 against Comcast, holding that it was unitary with QVC and that the fee Comcast received for a failed merger with MediaOne was apportionable business income. For more on the BOE decision, see our February 2012 alert.

In its trial brief, Comcast asserted that it was not unitary with QVC under any of the tests for unity. Comcast highlighted the fact that it is in the business of providing cable services, which is "in stark contrast to" QVC's business of being an electronic home shopping provider. While Comcast derived its income from monthly subscription fees, QVC derived its income from the sale of goods and services featured on its channel. It also asserted that even though it owned 57 percent of QVC it did not exercise control of QVC, and that Comcast management had a "hands off" approach to the QVC enterprise.

Comcast also asserted that the income it received from a termination fee stemming from a failed merger between itself and MediaOne was nonbusiness income allocable outside California. The merger agreement between Comcast and MediaOne contained a clause providing that in the event that either party terminated the agreement, the non-terminating party would receive a termination fee of $1.5 billion. MediaOne terminated the agreement and paid the fee. Under California law, income is classified as business income or nonbusiness income based on the application of the two-pronged UDITPA test. Under the UDITPA test, income is classified as business income if it satisfies either a transactional test or a functional test.5 Comcast argued that the termination payment failed the functional test, which examines whether the acquisition, management and disposition of the property that gave rise to the income constituted an integral part of the taxpayer's regular trade or business, because the property was not an integral part of its business operations. It also contended that it failed the transactional test, which looks at whether the transaction that gave rise to the income arose in the regular course of the taxpayer's business. It argued that the early termination fee was a "once-in-a-lifetime event," was not an integral part of its business operations, and was therefore nonbusiness income under California law.6

In contrast, the FTB argued that Comcast and QVC, together, constituted a unitary business. In addition, it argued that because Comcast built its business through acquisitions, the termination fee represented lost profits from its business, and that its rights under the merger agreement constitute property that was integral to Comcast's expansion efforts.

Stay tuned for updates on the court's decision and its repercussions for California businesses.

Court sides with taxpayer in dispute over sales taxability of licensed software

In another recent Los Angeles Superior Court case, Lucent Technologies, Inc., et al. v. Board of Equalization,7 the court ruled in favor of the taxpayer, Lucent Technologies, Inc. ("Lucent"), on cross motions for summary judgment. The issues in the case were whether the written agreements pursuant to which Lucent provided software to its customers were "technology transfer agreements"8 and, if so, whether there were triable issues of fact as to the amount of refund due based on the value of the tangible personal property.

Lucent manufactured and sold switching equipment to telephone service providers. The service providers used the switching equipment to provide telephone and other services to end customers. Lucent also owned the rights to the software that was necessary to operate the switching equipment. The telephone service providers that purchased the switching equipment were provided with discs containing the switching software under written agreements. The BOE asserted that a computer code stored on a physical medium is tangible personal property and therefore subject to the sales and use tax.

Lucent had argued that the decision of the Court of Appeal in Nortel Networks, Inc. v. Board of Equalization,9 controlled. In that case, Nortel designed, manufactured, and sold switching equipment to Pacific Bell. The switching equipment required software to operate, which Nortel also sold to Pacific Bell on storage media disks much like the ones that Lucent provided to its customers. The Court of Appeal held that the software sold by Nortel was exempt from the sales tax under the technology transfer agreement statutes because: (1) it was copyrighted; (2) it contained patented processes; and (3) it enabled the licensee to copy the software, and to sell and make products that embodied the patents and copyrights. For more on the Nortel decision, see our May 2011 alert.

Judge Kleinfield granted Lucent's motion for summary judgment, ruling that the sale of the switching equipment software by Lucent qualified as a technology transfer agreement. Relying on the analysis in Nortel, Judge Kleinfield remarked that "one could almost substitute the names of the plaintiff and the monetary amounts, and the facts would be essentially the same," and thus, the FTB was simply using the Lucent case to re-litigate Nortel. The court found there were no triable issues of fact and entered a refund judgment for Lucent.

A hearing has been set for November 18, 2013 to determine the amount of prejudgment interest, if any, to which Lucent is entitled.

Takeaway: Taxpayers that have not filed refund claims for California sales or use tax paid on purchases of sales of copyrighted or patented software, based on the Court of Appeal's decision in Nortel, should consider filing for a refund on the heels of the favorable Lucent decision.

California Supreme Court rules special assessment rule for refineries is invalid—but bases its decision on procedural grounds

In Western States Petroleum Ass'n v. Board of Equalization,11 the California Supreme Court considered a challenge to a BOE rule governing the valuation of petroleum refinery property for property tax purposes. In 1979, in response to the passage of Proposition 13 by California voters, the BOE enacted a rule for assessing the value of most industrial property,12 providing that the value of fixtures, including machinery and equipment, was to be assessed separately from the value of land and improvements. Because petroleum refinery property, usually consisting of land, improvement, and fixtures, was generally sold as a unit, the BOE enacted Rule 474, which provides that the value of petroleum refinery property must be assessed as one unit.13

The Western States Petroleum Association challenged Rule 474's substantive validity on two grounds: (1) that Rule 474 was inconsistent with Proposition 13 and related statutory enactments and was therefore an unlawful exercise of the BOE's authority; and (2) that its adoption by the BOE was procedurally deficient because the BOE did not adequately assess the economic impact of the regulation as required by the Administrative Procedures Act ("APA").14

The Supreme Court determined that, "Rule 474 is consistent with applicable constitutional and statutory provisions, and it is also consistent with the long-standing valuation principle that the proper appraisal unit is the collection of assets that persons in the marketplace normally buy and sell as a single unit."15 Based on this, the Supreme Court held that the adoption of Rule 474 did not exceed the BOE's rulemaking authority.

However, the court found that the BOE failed to make an adequate assessment of Rule 474's economic impact as required under the APA.16 Under the APA, the BOE is required to make a reasoned estimate of all cost impacts of its proposed rule on affected parties. The court found that the BOE did not make the required reasoned estimate of the Rule's economic impact on businesses. The analysis on which the BOE based its economic impact statement "leaves the reader without an understanding of what the taxes on a representative refinery would have been under the formerly applicable Rule 461(e), and what the taxes would be under the new Rule 474(d)(2)."17

For those reasons, the court held that although it was within the BOE's authority to promulgate Rule 474, it must invalidate the rule because the BOE failed to make an adequate determination of the rule's economic impact as required by the APA. 

Justice Kennard filed a concurring and dissenting opinion, agreeing with the majority's holding, but disagreeing that Rule 474 was a quasi-legislative regulation, subject to great judicial deference. Instead, Judge Kennard argued that the rule was just the BOE's interpretation of the legislature's definition of real property, and therefore was an interpretive regulation, subject to less judicial deference.

Takeaway: Although the taxpayer was victorious in this case, the court's holding being based on procedural grounds may lead to another—procedurally proper—attempt to implement the same rule. It may also lead to other challenges to special-industry assessment rules based on the same theories raised in this case. In addition, the holding suggests that other regulations may be invalid based on deficient compliance with APA standards.

California Supreme Court draws bright-line on taxation of intangibles

In Elk Hills Power, LLC v. Board of Equalization,18 California's highest court drew a bright line and held that assessors cannot include the value of intangibles when assessing taxable property. The decision addressed the proper treatment of emissions reduction credits ("ERCs"), but is applicable to all types of intangible property. Reed Smith filed an amicus brief supporting the taxpayer on behalf of the Institute for Professionals in Taxation.

Takeaway: The Elk Hills decision is a big win for taxpayers. Going forward, taxpayers should examine their property tax assessments and identify any intangibles associated with the property that should have been excluded from the valuation. For more on the Elk Hills decision, see our October 22 alert.

The California Court of Appeal applies Elk Hills

In EHP Glendale v. County of Los Angeles,19 the California Court of Appeal took a second look at an action for a property tax refund. The taxpayers, EHP Glendale and Eagle Hospitality Properties Trust, challenged an assessment by the Los Angeles County Assessment Appeals Board in 2005. In the first appeal, the court reversed the grant of summary judgment to EHP, finding that the trial court improperly rendered a decision on an incomplete record that contained disputed issues of fact. On a remanded bench trial, the trial court affirmed the assessor's and the Board's judgment.

EHP purchased a Hilton Hotel in the City of Glendale. The purchase included the hotel property and a franchise agreement for EHP to use the Hilton franchise in exchange for a royalty payment and management contract under which Hilton would continue to manage the hotel for two years. The total purchase price was $79.8 million, which was attributable to the real property, personal property, and intangible rights and assets (including the franchise agreement and management contract) associated with the hotel. After EHP purchased the property, the assessor reassessed the property establishing a Proposition 13 base year value of $79.8 million.

EHP appealed that assessment, contending that the market value of the hotel was $51 million and that the assessor's methodology was invalid because the assessment impermissibly captured the value of nontaxable intangible assets. To assess the property, the assessor used the income capitalization approach, under which he analyzed the hotel's historical operating revenue and expenses, and used the data to develop a stabilized income and expense projection for the property as of the 2005 change in ownership date.

EHP argued that the franchise and management agreements and assembled hotel workforce had independent value at the time of sale, and that the assessor was legally required to deduct those values from the purchase price in the agreement. EHP also argued that the hotel's various services (food and beverage, telecommunications, business center, health club, etc.) were independent businesses whose values should have been deducted from the hotel purchase price.

Ultimately, the Court of Appeal determined that the sole question on appeal was whether substantial evidence supported the original assessment by the appeals board. The court found that the assessor properly complied with Elk Hills by deducting the franchise and management fees from the income stream to remove their values from the valuation of the taxable property. EHP had argued that an insufficient amount was deducted from the income stream to account for the value of intangible assets under Rule 8(e).20 On this point, the court determined that the assessor's valuation merely reflected the presence of the service centers as an indirect contribution to the operation of a full-service hotel, consistent with the Elk Hills opinion.

Takeaway: Consistent with Elk Hills, taxpayers should examine their property tax assessments and identify any intangibles that should have been excluded from the valuation.

Not so fast – aggressive FTB auditors have been using federal changes to improperly reopen closed periods for issues unrelated to the federal changes.

FTB auditors have become increasingly aggressive in using federal audit determinations as a basis for reopening entire taxpayer returns for otherwise closed periods. Under California law, when a taxpayer reports a federal change, the FTB can only audit those items on the California return that changed as a result of the federal audit determination.21 There have been several incidents in which FTB auditors have attempted to ignore this rule and use reports of federal audit determinations as an opportunity to raise issues unrelated to the federal changes. For example, FTB auditors have attempted to raise issues related to the composition of a taxpayer's California unitary group in the context of a report of a federal audit change that simply changed the taxpayer's federal taxable income. Reed Smith's State Tax Group has been successful in getting the FTB to drop assessments arising from attempts by auditors to untimely raise issues unrelated to federal audit changes.

Meet the Team: Brian Toman

Brian is a partner based in the San Francisco office with a practice focused on state and local tax controversies, tax planning and transactional matters. Brian has extensive experience in California state corporation income tax, personal income tax, sales and use tax, and property tax matters. Prior to entering private practice, Brian held the position of Chief Counsel of the FTB. As Chief Counsel, Brian oversaw the FTB's litigation cases, which included some of the most complex and sensitive state corporate income tax and personal income tax cases in the nation. He was also responsible for the FTB's administrative protest and settlement functions and appeal cases before the BOE. Brian continues to maintain extensive contacts within the FTB.

Brian is nationally recognized as a leading authority on the unitary concept and formula apportionment. He has been engaged as an expert witness in both California corporation and personal income tax matters. He has also functioned as the lead attorney, in both public service and private practice, in settling some of the largest and most complex California corporate and personal income tax cases. His experience in the public and private sectors makes him an invaluable member of the Reed Smith State Tax team.
Outside of his practice, Brian enjoys traveling and has visited many countries in Asia, Africa, South America and Europe. Brian is also an avid jogger.

About Reed Smith State Tax

Reed Smith's state and local tax practice is comprised of more than 30 lawyers across seven offices nationwide. The practice focuses on state and local audit defense and refund appeals (from the administrative level through the appellate courts), as well as planning and transactional matters involving income, franchise, unclaimed property, sales and use, and property tax issues. Click here to view our State Tax team. For more information on Reed Smith's California tax practice, visit www.reedsmith.com/catax.


  1. Stats. 2013, ch. 546, effective January 1, 2014.
  2. IRC §§ 1202 (gain exclusion) and 1045 (gain deferral).
  3. 208 Cal. App. 4th 1247 (2012).
  4. Case No. BC489779 (L.A. Sup. Ct.).
  5. Hoechst Celanese Corp. v. Franchise Tax Board, 25 Cal. 4th 508 (2001).
  6. Cal. Rev. & Tax. Code § 25120
  7. Case Nos. BC 341568 and BC448715 (L.A. Sup. Ct., Sept. 27, 2013)
  8. A "technology transfer agreement" is "any agreement under which a person who holds a patent or copyright interest assigns or licenses to another person the right to make and sell a product or to use a process that is subject to the patent or copyright interest." Cal. Rev. & Tax. Code §§ 6011(c)(10)(D); 6012(c)(10)(D). Intangible personal property transferred with tangible personal property in any technology transfer agreement is exempt from sales and use tax if the technology transfer agreement separately states a reasonable price for the tangible personal property. Cal. Rev. & Tax. Code §§ 6011(c)(10)(A); 6012(c)(10)(A).
  9. 191 Cal. App. 4th 1259 (2011)
  10. Id. at 1264.
  11. S200475, filed August 5, 2013.
  12. 18 CCR § 461.
  13. 18 CCR § 474.
  14. Cal. Gov. Code § 11346 et seq.
  15. Opinion at 2.
  16. Id.
  17. Opinion, quoting Court of Appeal.
  18. California Supreme Court, Docket No. S194121 (August 12, 2013).
  19. California Court of Appeal, Second Appellate District, Division 8, B244494 (Sept. 18, 2013).
  20. Rule 8(e), 18 CCR § 8(e), describes two methods for estimating future income: using recently derived income and recently negotiated rents or royalties of the property or comparable property so long as the rents are reasonably indicative of the income the property will produce at its highest and best use; or, using income from operating a property so long as sufficient income is excluded to provide a return on working capital and other nontaxable operating assets, and to compensate unpaid or underpaid management.
  21. Cal. Rev. & Tax. Code § 19059.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions