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END-USER LICENSE AGREEMENT

PLEASE READ CAREFULLY BEFORE DOWNLOADING ANY SOFTWARE FROM THIS INSTALLER:

This End-User License Agreement (this "Agreement") is a legal contract between you and us.

ABOUT US: Shinyfields Limited, a company registered in Cyprus (company number HE 256351) with a registered address at Avlonos 1, Maria House, 1075 Lefkosia, Cyprus trading as Skylum Software ("us" or "Skylum").

BY INSTALLING OR USING THE SOFTWARE IDENTIFIED IN THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT , THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. YOUR USE OF THIS SOFTWARE CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS.

If you are accepting this Agreement on behalf of a company, organization, educational institution, foundation, trust, or any other legal entity as its authorized legal representative, then you represent and warrant that you have the power and authority to bind such entity to these terms. References to "you" in this Agreement refer to both an individual end user and to any legal entity on whose behalf you are accepting this agreement.

This Agreement incorporates by reference the Skylum Privacy Policy as it may be amended from time to time, and which is made a part of this Agreement as if repeated in full.

THIS AGREEMENT REQUIRES CLAIMS TO BE ARBITRATED AND LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT.

IMPORTANT NOTICE:

  • BY INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT , UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. THE TERMS OF THIS AGREEMENT INCLUDE IN PARTICULAR, LIMITATIONS ON LIABILITY IN SECTION 3.
  • If you are not willing to be bound by the terms of this Agreement, then you must click the "I do not accept" or similar button, terminate the Software download and/or installation process, immediately cease and refrain from accessing or using the Software, and delete any copies of the Software that you may already have.

This Agreement, along with any additional terms or policies incorporated herein by reference, represents the entire agreement between you and Skylum concerning the Software, and this Agreement supersedes and replaces any prior proposal, representation, or understanding you may have had with Skylum relating to the Software, whether orally or in writing.

You should print or save a copy of this Agreement for future reference.

1. License

1.1. Grant of License.

"Software" as used in this Agreement is defined as including (a) (i) all software files and other computer information, including all of the contents of the downloads, files, including setup files, disk(s), CD-ROM(s) or other media (if applicable) provided to you by Skylum or its affiliates, licensors and resellers under the brands SKYLUM™, LUMINAR™ (including Luminar X), AURORA HDR™, and PHOTOLEMUR™; (ii) registration information, i.e. each and every license key or activation code which is unique for your registration name and/or email address; (iii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with Skylum software or made available by Skylum on any website operated by Skylum or its affiliates as compatible for use with the Skylum software; (iv) other digital products for use on computers, mobile devices and other electronic devices, which are developed by Skylum or its licensors and made available by Skylum, including without limitation, presets, photographic filters, photographic textures, overlays, software plug-ins, instructional materials, and any software code developed and produced by third party licensors and made available by Skylum (unless provided under separate end-user license agreements); and (b) any Updates (as defined in Section 1.7), Upgrades (as defined in Section 1.7), and any other enhancements, modifications, revisions, or additions to the Software made by Skylum and made available to end-users, to the extent not provided under separate terms.

In consideration of and subject to your full and ongoing compliance with the terms and conditions of this Agreement and payment of all applicable fees for the use of the Software, Skylum hereby grants to you, and you accept, a personal, limited, nonexclusive, nontransferable, non-assignable (except as set forth in Section 1.6), revocable license to use the Software during the Term (as defined in Section 5) in machine-readable, object code form only, and any user manuals or explanatory written materials and files accompanying Software ("Documentation"), only as authorized in this Agreement. Skylum reserves all rights not expressly granted to you under this Agreement.

1.2. Use of Software; Number of Authorized Devices.

Your license to use the Software is conditioned on the restrictions and additional terms and conditions set forth in this Agreement. Any use of the Software in violation of any restrictions or other terms and conditions of this Agreement is a breach of this Agreement and is unlicensed.

The Software may not be used in the operation of a web service or other online service you provide for others, or for the benefit of any other person or entity. It must only be used for your own personal use or internal business processes (if purchased by an entity). You may use the Software only as activated by a license key/activation code, on computers or other devices which utilize Apple or Windows Operating Systems, which devices are owned, leased, or otherwise controlled by you at the same time (each, an "Authorized Device"). If you need to substitute one Authorized Device with another Authorized Device, please contact Skylum customer service at [email protected] for assistance. For purposes of this Agreement, "use" of the Software means access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation and as authorized herein.

1.3. Thirty Day Money Back Limited Guarantee for Purchases Made Directly from Skylum's Stores

If you purchased your license (including subscription license) to use the Software directly from Skylum's digital store or marketplace, from www.skylum.com or www.aurorahdr.com, www.photolemur.com, or other sites operated by Skylum (the "Websites"), and if you are not completely satisfied with the Software for any reason, you may return (or cancel the subscription for) the Software, together with your receipt or any other proof of purchase of the Software (or the subscription), for a refund of the money you paid for the Software (less any applicable taxes or other fees) at any time during the thirty (30) day period following the date of purchase. Upon receiving a refund you shall cease any and all use and destroy all copies, full or partial, of the Software for which you no longer possess a paid-up license. Skylum reserves the right to disable the Software and\/or any Software product license keys and\/or activation codes issued to you for the refunded Software. We will not refund or credit the difference between the price you were charged and any later price reduction, such as a special sales event, promotion or discontinuation pricing.

Please note: If you purchased a license to use the Software through one of Skylum's partners or authorized resellers or distributors (for example, through the Apple App Store or Google Play), you must follow the terms and conditions of that partner, authorized reseller or distributor with respect to any returns and/or refunds. Any applicable returns and/or refunds shall be made only through the partner, authorized reseller or distributor, and not from Skylum.

Notwithstanding anything to the contrary provided above, no refunds are offered for the following materials:

  • Educational content and materials such as video tutorials, e-books, guides and other similar materials; and

  • Additional digital content, such as photography presets and photography textures.

In addition, Skylum may decline refund claims in the following cases:

  • Software was purchased for the wrong platform or operating system; Inability to operate the Software in your computing environment or on your Authorized Device;

  • Inability to use the Software due to an operator error; or

  • Any actual or suspected fraud or misconduct, including without limitation, any credit or debit card fraud.

1.4. Evaluation Licenses.

If you obtained a trial or evaluation version of the Software, you may use the Software for a limited time period which varies and specified in the offer terms (the "Trial Period"). You may use the Software during the Trial Period for internal non-commercial purposes, solely to evaluate the suitability of the Software for your needs. You must purchase a license key/activation code to be able to continue the use of the Software after the expiration of the Trial Period. If you do not purchase a license key/activation code to use the Software prior to the expiration of the Trial Period, then at the expiration of the Trial Period, you must cease any and all use of the Software, the Software will be deactivated, and this Agreement and all your rights and licenses hereunder will terminate.

1.5. Restrictions.

  1. (a)

    Except as authorized in this Agreement, no copies of the Software, Documentation, or license keys/activation codes, or any portions thereof, may be made by you or any person under your authority or control. You must keep all copies of the Software and license keys/activation codes secure. You are solely responsible for protecting your personal data, license key(s)/activation code(s) and your Authorized Device(s) from all unauthorized access, use and copying.

  2. (b)

    You may not reverse engineer, decompile, disassemble, copy or otherwise translate the Software or any license keys/activation codes you have obtained or attempt to create the source code from the object code you received.

  3. (c)

    You may not modify or adapt the Software or abuse or circumvent any license keys/activation codes that you have obtained in any way. You may not remove any copyright or other proprietary notices that were included on such materials when you first received them.

  4. (d)

    You may not sell, license, sub-license, publish, display, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the Software itself or any part thereof. except strictly and solely to the extent that (by virtue of any applicable law that cannot be excluded by contract) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided further that you must notify in writing Skylum in advance of carrying out any such activity and shall allow Skylum the opportunity to either terminate this Agreement (if permitted under applicable law) or supply the relevant information at reasonable commercial rates to avoid your need to carry out such activity; provided further that any information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program; and (ii) is not unnecessarily disclosed or communicated to any third party without Skylum's prior written consent in each instance; and (iii) is only disclosed or communicated to any third party strictly on a need-to-know for the relevant purposes, and subject to written undertakings of confidentiality and limitations on use.

All the textures, objects and images inside the application are purposed solely to modifying or incorporating new creative elements since they will only be used as layers in a photo by the end-user. We are not selling the photos/templates.

You may not sell, license, sub-license, publish, display, disclose, rent, lease, modify, loan, distribute Textures, Overlays, Stickers, Sounds, Text Labels, Camera Color Profiles, Scripts, Images for User Interface, Sample Images, Images for Tutorials as all of these are part of the Product and can't be used, transferred, copied outside of the product.

1.6. Activation of Software; Assignment of Rights.

Activation of as well as continuation of the subscription license for the Software requires Internet connectivity. Upon payment of applicable fees for the use of the Software and your acceptance of this Agreement, you will be provided with a license key/activation code and you will be requested to provide to Skylum your email address in order to activate the use of the Software on your Authorized Device(s).

You are not permitted to assign, transfer, sublicense, subcontract, lease, rent, mortgage or lend your rights in the Software, Documentation, or license keys/activation codes, as granted by this Agreement, without prior written consent of Skylum in each instance.

Skylum may assign this Agreement and all rights and obligations hereunder to any affiliated entity, to any successor in interest, or to any other third party, in its sole and absolute discretion.

1.7. Updates and Upgrades.

For purposes of this Agreement:

  • "Update" means any modification, addition, enhancement, revision, bug fix or other change to the then-current version of the Software.

  • "Upgrade" means a new version of the Software issued by Skylum from time to time in its sole discretion (typically once every calendar year).

Each Update to the current version of the Software will be distributed free of charge to you as long as your license is effective; you may be notified that the Update is available through an in-program notification, via the e-mail address you provided upon registration of the Software, or through our website. Skylum may provide Updates to each version of the Software for a period of twelve (12) calendar months after the date of the release of each such version.

Upgrades will be offered for a separate fee. Any notifications of availability of Upgrades will be provided through our website, in-program notices, or by e-mail to users of the Software, and shall be subject to other terms and conditions as may be determined by Skylum in its sole discretion.

Nothing in this Agreement imposes upon Skylum any express or implied obligation to announce or make available any Updates or Upgrades, and this Agreement does not give you any rights in or to any of the foregoing. You further acknowledge that in order to obtain any of the Updates or Upgrades, your Authorized Device must be connected to the Internet and the e-mail address provided to Skylum must be kept current.

If you need assistance with any Updates or Upgrades, please contact Skylum customer service at [email protected].

2. Additional Terms.

The following additional terms apply to the use of the Software:

  1. (a)

    The Software may not be compatible with all operating systems or hardware, and the compatible systems may change from time to time. We do not make any warranty or guarantee that a previously compatible system will remain compatible.

  2. (b)

    Skylum will have no liability whatsoever in the event that your personal data, license key(s)/activation code(s) or your Authorized Device or its content is accessed by anyone other than you. If your license key/activation code is stolen, or if you suspect any improper or illegal usage of your license outside of your control you must promptly notify Skylum of such occurrence. A replacement license will be issued to you and the suspect license will be disabled and/or terminated. Skylum shall not liable for any damages or costs incurred in connection with the disabled and/or terminated licenses.

  3. (c)

    You are solely responsible for creating backup files of all data, photographs and images accessed by or used through the Software. Skylum is not liable for any damages relating to lost, corrupted or damaged data, photographs or images.

  4. (d)

    The Software may automatically download additional third-party software to enable the Software to run on a particular server or device. Any such third-party software is provided purely "AS IS," and "AS AVAILABLE," without warranty of any kind other than as may be provided by the owner or distributor of said third-party software. Furthermore, Skylum does not provide you with any third party licenses that may be required to use or run this Software on your Authorized Device(s). It is solely your responsibility to obtain any other licenses you may need to operate the Software, including operating system licenses. You agree that you will not use the Software in any way that conflicts with or violates the terms of service or other agreements between you and any third party.

  5. (e)

    If you purchased a license to use the Software from a third party reseller or distributor, you may be subject to additional terms and conditions imposed by such third party.

  6. (f)

    Some features of the Software, Updates and Upgrades may require that your Authorized Device has access to the Internet. You are solely responsible for obtaining such access, paying for it, and complying with any terms of use of your internet service provider.

  7. (g)

    You will not use the Software other than as permitted by this Agreement or in a manner inconsistent with its design or Documentation.

  8. (h)

    You agree to comply with all laws and regulations when downloading, installing and using the Software, including any laws and regulations specific to your location of download. You must not use the Software in any way to publish or transmit any illegal or objectionable material or links to such material, nor to infringe any rights (including intellectual property rights) of any third party.

  9. (i)

    You agree that you will not violate any applicable statute, law or regulation in the course of your use of the Software.

  10. (j)

    You must abide by all authentication procedures, including but not limited to license key requirements and procedures.

  11. (k)

    You may not interfere with or disrupt the operation of the Software, including restricting or inhibiting any other person from using the Software by means of hacking or defacing. Transmitting to or making available in connection with the Software any denial of service attack, virus, worm, Trojan horse or other malware or harmful code or activity is strictly prohibited. You may not attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. Further, you may not take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure.

3. Intellectual Property and Confidentiality.

3.1. Use Reporting, Violations and Remedies.

Please see our Privacy Policy ("Data We Collect About You") regarding information and data we collect. Skylum monitors Software usage and reserves the right to remedy violations of any of the terms of this Agreement as provided in this Agreement.

3.2. Proprietary Rights to Software and Trademarks.

Skylum and/or its licensors own and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. Except for the limited, revocable license expressly granted to you herein, this Agreement does not grant you any ownership or other right or interest in or to the Software or the Documentation or any other intellectual property rights of Skylum or its licensors, whether by implication, estoppel, or otherwise. Any and all trademarks or service marks that Skylum uses in connection with the Software or with services rendered by Skylum are marks owned by Skylum or its licensors. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.

Title and intellectual property rights in and to any content displayed by or accessed through the Software (e.g. photographs or images) belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. This Agreement does not grant you any rights to use such content and you shall be responsible for the use of such content.

3.3. Confidentiality.

You shall permit only authorized users, who possess rightfully obtained license keys/activation codes, to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software, Documentation, or any license key/activation code to any third party, or use the Software, Documentation, or any license key for any purpose other than exercising rights expressly granted to you hereunder. You agree to cooperate with and assist Skylum in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.

3.4. Consent to Use Data; Privacy Policy.

You consent to collection and use of data in accordance with our Privacy Policy as it may be changed or updated by Skylum from time to time.

4. License Fees.

The Software will be available to you upon acceptance of this Agreement, payment of applicable license fees for the use of the Software and your receipt of one or more license key(s)/activation code(s). Except as provided in Section 1.3 of this Agreement, license fees are not refundable.

5. Term and Termination.

This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, any Update or Upgrade, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until expiration or termination as provided herein (the "Term").

Without prejudice to any other rights, this Agreement will terminate automatically without notice to you if you breach or fail to comply with any of the limitations or other requirements described herein, including without limitation, the payment of any applicable license fees. You agree that in any such case Skylum may, in addition to any other remedies it may have at law or in equity, remotely disable the Software.

You may terminate this Agreement at any time by providing written notice of your decision to terminate the Agreement to Skylum and ceasing all use of the Software and Documentation.

[This Agreement terminates immediately if you file for bankruptcy, become insolvent, or make an assignment for the benefit of creditors.]

Upon any termination or expiration of the Agreement for any reason, Skylum shall have the right to disable the Software; you agree to uninstall the Software and either return to Skylum the Software, Documentation, all copies thereof, and all license keys/activation codes that you have obtained, or to destroy all such materials and provide written verification of such destruction to Skylum.

6. Indemnification.

You will, at your own expense, defend, indemnify and hold Skylum, its affiliates, licensors, agents and representatives, and its and their officers, directors, members, partners, and employees of Skylum, its affiliates and its and their licensors, agents and representatives, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable legal and/or attorneys' fees, arising out of any use of the Software or the Documentation by you, any party related to you, or any party acting upon your authorization, in violation of this Agreement or in any manner that is not expressly authorized by this Agreement, or in the event of any act or omission which is, or can be determined to be, a breach of any of the terms of this Agreement or any of your representations or warranties made hereunder, or in relation to your use of the Software (including without limitation, in relation to content and personal data).

7. Limited Warranty; Disclaimer; Limitation of Liability.

7.1. Limited Warranty.

Trial versions of Software are made available "as-is" and without any express or implied warranties whatsoever.

After your payment of license fees, the following limited warranty shall apply: Skylum warrants that licensed Software will perform substantially as described in the Documentation that accompanies the Software, provided you follow all of Skylum instructions and other requirements, including those related to the operating system(s), devices and other technical capabilities. This limited warranty does not cover problems that you cause, or that arise when you fail to follow Skylum's instructions or Documentation, or that are caused by events beyond Skylum's reasonable control. The limited warranty starts when the first user of your copy of the Software acquires that copy or an Upgrade of the Software, and lasts for one year. Any Updates or replacement Software that you may receive from Skylum during that year are also covered, but only for the remainder of that one-year period or for 30 days, whichever is longer. Skylum gives no other express warranties, guarantees, or conditions, nor may any warranty claims whatsoever be brought against Skylum's resellers, agents or distributors.

[Provided you properly notify Skylum with a specific description of the Software's nonconformance within the warranty period and we validate the existence of such nonconformance, we will, at our option:

  1. (a)

    repair or replace the nonconforming Software, or

  2. (b)

    refund the license fees paid for the applicable nonconforming Software in exchange for a return of such nonconforming Software.

This is your sole and exclusive remedy under this warranty.]

7.2. Warranty Disclaimer.

EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY GRANTED TO YOU IN SECTION 7.1, THE SOFTWARE AND DOCUMENTATION ARE LICENSED "AS IS," AND SKYLUM, FOR ITSELF AND ON BEHALF OF ITS RESELLERS, AGENTS AND DISTRIBUTORS, DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE FULLEST EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SKYLUM, FOR ITSELF AND ON BEHALF OF ITS RESELLERS, AGENTS AND DISTRIBUTORS, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, AND DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR (OR ANY PARTICULAR) REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH FUTURE SKYLUM'S PRODUCTS, OR THAT ANY INFORMATION OR DATA STORED OR TRANSMITTED THROUGH THE SOFTWARE WILL NOT BE LOST, CORRUPTED OR DESTROYED. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.

7.3. Limitation of Liability.

IN NO EVENT, WHETHER LIABILITY MAY ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, THROUGH INDEMNIFICATION OR IN ANY WAY OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL SKYLUM, ITS AFFILIATES, RESELLERS, AGENTS OR DISTRIBUTORS, BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU, TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, FOR:

  1. (a)

    ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES;

  2. (b)

    SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF DATA OR PECUNIARY LOSS), OR OTHERWISE, EVEN IF SKYLUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;

  3. (c)

    LOSS OF BUSINESS OPPORTUNITY; OR

  4. (d)

    LOSS OF GOODWILL OR REPUTATION.

IN NO EVENT WILL SKYLUM'S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU OR ANY OTHER PERSON FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO SKYLUM IN THE TWELVE MONTHS PRECEDING THE CLAIM FOR THE USE OF THE SOFTWARE GIVING RISE TO THE CLAIM. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES FURTHER INTEND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AS AN INDEPENDENT AGREEMENT APART FROM ANY OTHER REMEDY PROVIDED HEREIN.

7.4. Certain Limitations.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF WARRANTIES, DAMAGES, OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.

8. General Terms.

8.1. Feedback.

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.

8.3. Survival.

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.

8.4. Headings.

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.

8.6. Amendment.

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.

8.7. Taxes.

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, the Luminar X 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 protected] 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 12 August 2020.

9. Terms and Conditions for X Membership

This Agreement also incorporates by reference the Terms and Conditions of Subscription for X Membership as they may be amended from time to time, and which are made a part of this Agreement as if repeated in full but apply only for X Membership and updates to it.

User Agreement & Policies | Skylum(7)