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”). The Program and the Documentation may be collectively referred to as the Software. Carefully read all the terms and conditions of this Agreement before using the Software. BY USING THE SOFTWARE, OR BY CLICKING THE “I AGREE” OR SIMILAR ICON, OR BY INSTALLING OR COPYING THE PROGRAM, 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 ARE INSTALLING AND/OR USING THE SOFTWARE ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACT FOR THE COMPANY AND ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT ON BEHALF OF THE COMPANY. IF YOU OR YOUR COMPANY DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ACT FOR THE COMPANY YOU ARE PURPORTING TO REPRESENT, DO NOT USE OR INSTALL OR COPY THE SOFTWARE.

 

1.0 Ownership

 

The Software 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 Software shall remain with Acuity Brands Lighting, Inc. and its licensors. This Agreement does not constitute a sale of the Software, but only conveys to You a limited right to use the Software in accordance with the terms of this Agreement. Acuity Brands Lighting and its licensors retain all rights in the Software 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.

 

3.0 Term and Fees and Trial Use

 

Term

 

The Term of this Agreement shall commence on the date You pay the License Fee (as defined below) and shall continue thereafter for a period of one (1) year, unless and until terminated as provided hereunder (the "Initial Term"). Upon expiration of the Initial Term, if you pay the applicable then-current License Fee(s), this Agreement shall renew for additional successive one (1) year term(s), unless and until terminated as provided hereunder (each, a “Renewal Term”). If the Term is renewed for any Renewal Term(s), the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms in effect immediately prior to such renewal, subject to any change in the amount of the License Fee(s).

 

License Fees

 

In consideration of the rights granted to You under this Agreement, You shall pay to Acuity Brands Lighting the fees set forth at http://www.visual-3d.com/purchase/visuallighting.aspx (the “License Fee”). If the Term is renewed for any Renewal Term(s), as provided above, You shall pay the applicable then-current License Fee(s) that the Acuity Brands Lighting charges for the Software during the applicable Renewal Term.

 

Trial Use

 

Subject to the applicable terms and conditions set forth in this Agreement, You may use the Software on a trial basis solely for the purpose of evaluating whether You would like to obtain a commercial license for the Software. This trial license is valid for thirty (30) days after You download the Program. At the end of such thirty (30) days, the trial license shall automatically expire, and lockout functions within the Program will cause the Program to function only in demonstration mode unless You pay the License Fees for the Software.

 

4.0 Privacy

 

When You order and/or interact with this Software through the Visual® website, Your ordering and interaction is subject to the terms of the Acuity Brands Privacy Policy accessible from the site. In addition, when You use this Program, Acuity Brands Lighting may collect and store some or all of the following: (1) information useful to validate Your right to use the Program, such as license origination information (which Acuity may source from within and without the Program) and log-in data, and (2) information about how You use the Program, such as information about the products and situations modeled using the Program. To the extent required, you authorize Acuity Brands Lighting to use this information to operate and improve the Program as well as for developing, testing, supporting, training on, collecting market information on, and resource planning for Acuity’s Brands Lighting’s products and services. Acuity Brands Lighting may share this information for general business purposes, but only in an anonymous, filtered, or aggregate form. The information this Program collects may be stored locally on Your computer and may be transmitted to our servers in the United States. The transmission of information over wireless and wired networks is not inherently secure. As a result, Acuity Brands Lighting does not guarantee, and You should not expect that Your information will always remain private when using this Program. Acuity Brands Lighting reserves the right to make changes to these privacy practices from time to time. Any changes will take effect upon the expiration of thirty (30) days after notification via the Visual website. If You do not agree to any changes, You have the right to uninstall and discontinue using the Software. Any use of the Software after the thirty (30) day notice period constitutes Your acceptance of any change.

 

5.0 Disclaimer of Warranty

 

THE SOFTWARE LICENSED HEREIN IS LICENSED "AS IS" AND ACUITY BRANDS LIGHTING MAKES 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.

 

6.0 Limitations

 

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 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.

 

7.0 Export

 

You acknowledge that the Software 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 Software 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.

 

8.0 Government Users

 

The Software 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.

 

9.0 Miscellaneous

 

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, excluding its choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of Georgia, excluding its choice-of-law principles. 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. 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.

Should You have any questions concerning this Agreement or the Program, or the Documentation, please contact Acuity Brands Lighting by sending an e-mail to VisualSupport@AcuityBrands.com.