8. General Terms.
If you provide any ideas, feedback, suggestions, materials, information, opinions, or other input to Skylum (“Feedback”), regardless of any accompanying communication, Skylum has no obligation to review, consider, or implement your Feedback. All such submissions are made on a non-confidential basis. Skylum and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution, and you waive and agree not to assert any so-called “moral rights” you may have in the Feedback.
8.2. Governing Law and Choice of Forum; Arbitration.
This Agreement will be governed by the laws of New York, without reference to any applicable conflict of laws rules or provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the State of New York, New York County, in English. Within fifteen (15) days after the commencement of arbitration, the parties shall either agree on a single arbitrator, or if they cannot so agree, then each party shall select one (1) person to act as arbitrator and the two (2) selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. Consistent with the expedited nature of arbitration, each party will, upon the written request of the other party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the chair of the arbitration panel, which determination shall be conclusive. Any demand for arbitration must be filed within one (1) year after such dispute, claim or cause of action arose or shall be forever barred, regardless of any law or regulation to the contrary. The arbitrators shall not award consequential or punitive damages in any arbitration initiated under this section. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CONTRIBUTOR, TECHNICIAN OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CONTRIBUTOR.
If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from the Agreement.
Articles 3, 5, 6, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination or expiration of this Agreement, regardless of the cause for termination or expiration, and shall remain valid and binding indefinitely.
The Article and Section headings contained in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.5. No Waiver.
The failure or delay of either party to exercise or enforce any rights or remedy granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Skylum reserves the right, in its sole discretion, to amend this Agreement from time to time by posting an updated version of the Agreement on its Websites, provided that disputes arising hereunder will be resolved in accordance with the terms of the Agreement in effect at the time the dispute arose. Please review the published Agreement from time to time to make yourself aware of changes. Material changes to these terms will be effective upon the earlier of (i) your first use of the Software with actual knowledge of such change, or (ii) 30 days from publishing the amended Agreement on the Websites. If there is a conflict between this Agreement and the most current version of this Agreement, posted on the Websites, the most current version will prevail. Your use of the Software after the amended Agreement becomes effective will constitute your acceptance of the amended Agreement. If you do not accept amendments made to this Agreement, then it is your responsibility to terminate this Agreement pursuant to Section 5.
You shall, in addition to the license fees required under this Agreement, pay all applicable sales, use, transfer, value added, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of Skylum. You shall reimburse Skylum for the amount of any such taxes or duties paid or incurred directly by Skylum as a result of this transaction, and you agree that Skylum (or its third party reseller or distributor) may charge any such reimbursable taxes to the payment instrument you used for your initial payment.
8.8. Export Controls.
You may not use, export, re-export, import, sell or transfer the Software except as authorized by United States (U.S.) law, the laws of the jurisdiction in which you obtained the Software, and any other applicable laws and regulations (“Applicable Law”). You represent and warrant that (i) you are not located in a country that is subject to an embargo under Applicable Law, or that has been designated under Applicable Law as a “terrorist supporting” country; and (ii) you are not listed under Applicable Law on any of prohibited or restricted parties. You also acknowledge that the Software may be subject to other U.S. and foreign laws and regulations governing the export of software by physical and electronic means. You agree to comply with all applicable U.S. and foreign laws that apply to Skylum as well as end-user, end-use, and destination restrictions imposed by U.S. and/or foreign governments. You also agree that you will not use the Software for any purposes prohibited under Applicable Law, including, without limitation, the development, design, manufacture or production of weapons or child pornography.
8.9. Events Outside of Skylum’s Control
Skylum will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by an Event Outside Our Control. An “Event Outside Our Control” is any act or event beyond the reasonable control of Skylum, including without limitation failure of public or private telecommunications networks or power disruptions. If an Event Outside Our Control takes place that affects the performance of Skylum’s obligations under this Agreement, Skylum’s obligations under this Agreement will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside Our Control.
8.10. Governing Language.
This Agreement is made in the English language. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern.
8.11. Trademark Notice.
The name of the Software, Skylum, Skylum Software, the Skylum logo, Luminar, the Luminar logo, Aurora HDR, the Aurora HDR logo, Photolemur, the Photolemur logo, and all related titles and logos are either registered trademarks or trademarks of Skylum in the United States and/or other countries. All other trademarks are the property of their respective owners.
8.12. Contact Information; Notices.
You may contact Skylum at email@example.com for the purpose of giving notice. Visit the Websites for more information about the Software and other Skylum products and services.
If we have to contact you or give you notice in writing, we will send an e-mail to the e-mail address you used to acquire the Software activation code/license key, or such other last-known e-mail address you may have provided to us.
Any notice given by you to us, or by us to you, will be deemed received and properly served 24 hours after an e-mail is sent. In proving the service of any notice, it will be sufficient to prove that any e-mail was sent to the specified e-mail address of the addressee.
This End-User License Agreement was last modified on 24 August 2018.