VISUAL ® SOFTWARE LICENSE AGREEMENT
Set out below are the terms and conditions under which you (either an individual or a single business entity, collectively referred to as "You" or "Your") are permitted to use the software product identified above in the title of this Agreement, which includes computer software (the “Program”) and, as applicable, associated media, printed materials and “on-line” or electronic documentation (the “Documentation”). Carefully read all the terms and conditions of this Agreement before using the Software Application. BY USING THE SOFTWARE APPLICATION, OR BY CLICKING THE “I AGREE” OR SIMILAR ICON, OR BY INSTALLING OR COPYING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LEGAL AGREEMENT BETWEEN ACUITY BRANDS LIGHTING, INC. ("ACUITY BRANDS LIGHTING") AND YOU AND YOU REPRESENT THAT YOU HAVE FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR INSTALL OR COPY THE SOFTWARE APPLICATION.
The Program is proprietary to Acuity Brands Lighting and its licensors, and is protected under applicable copyright and/or trade secret laws. All right, title and interest in and to the Program shall remain with Acuity Brands Lighting, Inc. and its licensors. This Agreement does not constitute a sale of the Program, but only conveys to You a limited right to use the Program in accordance with the terms of this Agreement. Acuity Brands Lighting and its licensors retain all rights in the Program not expressly granted.
2.0 License Grant and Termination
You are granted a limited, revocable, nonexclusive, nontransferable license to use the Program on a single computer in accordance with the Documentation only in connection with Acuity Brands Lighting ‘s products and services. All proprietary notices in or on a Program shall be duplicated by You on all copies of the Program and shall not be altered or removed. Except as expressly permitted herein, You may not alter, modify, copy, disassemble, decompile, reverse engineer, create derivative works from, or sell, sublicense, rent, or otherwise transfer to any other person or entity, the Program or the Documentation. Your right to use the Program shall terminate upon Your failure to comply with any term or condition of this Agreement. Upon termination of the licenses granted herein, You must cease all use of the Program and destroy the Program (including all copies thereof) and all Documentation, and certify to Acuity Brands Lighting that all Program and Documentation have been so destroyed. All other rights and obligations set forth herein shall survive termination of the licenses granted herein.
4.0 Disclaimer of Warranty
THE PROGRAM LICENSED HEREIN IS LICENSED "AS IS" AND ACUITY BRANDS LIGHTINGMAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHICH MIGHT OTHERWISE APPLY TO THE PROGRAM OR DOCUMENTATION. ALL WARRANTIES AND CONDITIONS OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS, OUTPUT, OR SECURITY ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. Acuity Brands Lighting. does not warrant that the operation of the Program will be uninterrupted or error-free,, or that the Program will meet Your requirements. Program calculations and lighting equipment design specifications are determined based on methods recommended by the Illuminating Engineering Society (IES) and/or or standard industry practice, but Acuity Brands Lighting. does not warrant that the layout for any project will comply with IES standards.
The Program includes lighting design and analysis tools and performs general lighting and ultra-violet germicidal irradiation (“UVGI”) calculations, using publicly available sources of data and/or user provided data. Calculated values are based on such input data, although photometry extrapolated from a test using a different lamp than indicated may be used. End-user environment and application (including, but not limited to, voltage variation and dirt accumulation) can affect uniformity, glare or other photometric issues, and can cause actual performance to differ from calculated values. As the user of the Program, You are solely responsible for the selection of the Program to achieve your intended results, for the installation and use made of the Program, and for the results obtained from the Program. For clarity, You are solely responsible for selection of appropriate lighting products and applications that meet the applicable project requirements for lighting and illumination, including requirements for lighting system suitability and safety. The designs, analyses and calculations provided by this Program are not a substitute for independent engineering analysis and testing, whether for lighting safety, system performance, suitability of products, or effectiveness of analyses for use in a particular application.
IN NO EVENT SHALL ACUITY BRANDS LIGHTING, INC., ITS AFFILIATES OR LICENSORS (THE “ACUITY PARTIES”) OR THE NEW YORK STATE ENERGY RESEARCH DEVELOPMENT AUTHORITY (“NYSERDA”), ST. VINCENT'S HOSPITAL OR MOUNT SINAI HOSPITAL (WHO, UNDER NYSERDA AGREEMENT 9425, PERFORMED A VALIDATION STUDY OF THE UVGI CALCULATIONS) (THE “UVGI PARTIES”) BE LIABLE WHETHER IN CONTRACT OR IN TORT, FOR ANY LOSSES, INJURIES OR DAMAGES OF ANY KIND,TO ANY PERSON OR ENTITY (INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, MULTIPLE, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER) ARISING OUT OF OR RELATING TO ANY USE, INABILITY TO USE, CONDITION, PERFORMANCE, DEFECT OR FAILURE IN, OR IMPROPER APPLICATION OF, THE PROGRAM OR THE RESULTS OF THE PROGRAM (INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DIFFERENCES BETWEEN MEASURED LIGHTING SYSTEM PERFORMANCE AND LIGHTING SYSTEM PERFORMANCE PREDICTED BY USING THE PROGRAM, DAMAGES RELATED TO SAFETY ISSUES THAT MAY ARISE FROM USE OF THE RESULTS OF THE PROGRAM, DAMAGES RELATED TO USE OF THE PROGRAM TO CREATE LIGHTING DESIGNS FOR HAZARDOUS ENVIRONMENTS, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, OR DAMAGES FOR LOST OR CORRUPTED DATA), PROGRAMEVEN IF THE ACUITY PARTIES OF THE UVGI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF THE ACUITY PARTIES OR THE UVGI PARTIES TO YOU OR ANY OTHER PARTY FOR ANY LOSSES OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE PROGRAM OR DOCUMENTATION EXCEED THE LICENSE FEES PAID FOR USE OF THE PROGRAM OR $10, WHICHEVER IS GREATER. Some states or jurisdictions do not allow the exclusion or limitation of certain damages. The limitations provided in this License Agreement are intended to apply to the fullest extent allowable under applicable law.
You release and waive all claims against the Acuity Parties and the UVGI Parties, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Your use of the Program. If You are a California resident, You waive any rights You may have under §1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You agree to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Acuity Parties or the UVGI Parties.
You acknowledge that the Program is subject to restrictions and controls imposed by the United States Export Administration Act (the "Act") and the regulations thereunder. You agree and certify that neither the Program nor any direct product thereof is being or will be acquired, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the Act and the regulations thereunder or will be used for any purposes prohibited by the same.
7.0 Government Users
The Program is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by or on behalf of the United States of America, its agencies and/or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer-Restricted Rights at 48 CFR 52.227-19.
This Agreement shall be construed in accordance with the laws of the State of Georgia. You agree that the exclusive jurisdiction for any claim or action arising out of or relating to this License Agreement shall be filed only in the state or federal courts located in the State of Georgia, and You further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. This Agreement may not be altered or amended except by a written document signed by an authorized officer of Acuity Brands Lighting, Inc. You may not assign this Agreement or any rights or obligations hereunder to any other person or entity without the prior consent of Acuity Brands Lighting, Inc.
Should you have any questions concerning this Agreement or the Programs, or the Documentation, please
contact Acuity Brands Lighting, Inc. by calling (800) 279-8043.