Effective: October 1, 2002
All access and use of this Web Site (the "Site") is governed by these Site Terms and
Conditions ("Site Terms and Conditions"). Entering into this Web Site indicates that
You have read and agree to use the Site in accordance with these Site Terms and
Conditions and the Site Privacy Policy. You should not attempt to access the Site or
register as a Site User if You are not willing to be bound by and abide by these Site
Terms and Conditions.
Site Ownership and Background
The Site contains certain pages providing content, information and educational materials
regarding lighting products and lighting design (collectively, "Content") for those who
register by submitting their name, company name, contact information and e-mail address.
This Site is owned by Acuity Brands Lighting, Inc. ("Acuity Brands Lighting"), which
includes the lighting-related business unit Lithonia Lighting, among others. Users of
the Site use the Site to view lighting-related products and services that are offered
by Acuity Lighting and may submit information to Acuity Lighting regarding the User
and its use of the products and services. The products include downloadable lighting
design software (the "Software"), the use of which is subject to separate license.
Participation in the Site as a Site User does not provide You with any ownership right
in this Site, except as expressly provided in these Site Terms and Conditions. Except
as otherwise expressly provided herein, all intellectual property rights associated with
this Site - including, without limitation, Site presentation, Site organization and
structure, visuals and graphics; user navigation; programming; software code; any
copyrighted, trademarked and patented information and processes - are retained and
reserved by Acuity Lighting and are Acuity Lighting’s sole and exclusive property.
Content License and Restrictions
The Content, including web-based software, provided in the Site represents valuable
proprietary and intellectual property. Such Content is protected by any and all
applicable international, federal, and state laws, rules, orders and regulations
relating to intellectual or proprietary property. You shall not reproduce, distribute,
display, revise, create derivatives of, copy, publish, sell, license, or edit any such
Content, except as expressly permitted in these Site Terms and Conditions. Acuity
Lighting grants You the limited, nonassignable, nontransferable license to display and
print a single copy of such Content, other than the Software, in connection with Your
use of the Site for Your own internal use so long as You maintain and abide by any
trademark, copyright or other proprietary notices on the Content and that are provided
in these Site Terms and Conditions. Other than as specifically directed and allowed on
the Site, any attempt to download, or to print, publish or maintain a significant
portion of Content from the Site, to distribute copies of such Content, to modify or
reuse the Content or to otherwise exploit the Content in violation of the intellectual
property or proprietary rights of Acuity Lighting or others is strictly prohibited by
these Site Terms and Conditions. Except as expressly permitted in this Section, You shall
have no right to use any brand, logo, trademark or other mark of Acuity Lighting or any
Acuity Lighting subsidiary or business division, such as Lithonia Lighting among, others,
without the express written permission of an authorized Acuity Lighting representative.
Site Privacy Policy
The manner in which we collect and disseminate Your information is set forth in our Site
Privacy Policy as updated from time to time and as made available
through the Site. Our Site Privacy Policy does not apply to other Web sites, including without
limitation other Web sites owned by Acuity Lighting, and Acuity Lighting can take no
responsibility or liability for the information collection or dissemination policies of third
parties. Your acceptance of these Site Terms and Conditions constitutes Your acceptance of the
Site Privacy Policy, which is a condition to Your use of the Site. You should not access the
Site if You do not agree with the terms of the Site Privacy Policy.
Use of the Site
You may not use the Site for any unlawful purpose or in any way that might harm, cause injury
or other damage or disparage any other party. Without limiting the preceding sentence and by
way of example, You may not:
- Create a false identity or impersonate another for the purpose of misleading others as to
the identity of the sender or the origin of a message, including, but not limited to,
providing misleading information to any feedback system employed through the Site;
- Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs,
cancelbots, or any other harmful or deleterious software programs;
- Interfere with or disrupt the Site, networks or servers connected to the Site or violate
the regulations, policies or procedures of such networks or servers;
- Attempt to gain unauthorized access to the Site, logins and passwords of others, or computer
systems and networks connected to the Site;
- Permit anyone other than Your authorized agent or employee to gain access to or use the Site
on Your behalf, or Your logins and passwords;
- Upload or otherwise transmit any information or content that infringes any patent, trademark,
trade secret right, publicity right, confidential information right, copyright or other
proprietary or contractual rights of any party;
- Use the Site in any manner whatsoever that could lead to a violation of any federal, state or
local laws, rules or regulations or any judgments or court orders to which You are subject; or
- Reverse engineer, decompile or disassemble the Site or any of the software that is a part of
the Site, including but not limited to the Software.
Without serving as limitation, You will:
- Comply with all notices, instructions and rules posted on the Site;
- Implement all Internet access and all security procedures required to use the Site at Your sole
expense; and
- Comply with all applicable federal, state and local laws, statutes and regulations in the
performance of Your obligations under these Site Terms and Conditions.
Site Monitoring
Acuity Lighting reserves the right, but does not assume the obligation, to at any time monitor,
review, retain and/or disclose any content or information (except as expressed otherwise in the
Site Privacy Policy with regard to personally identifiable information) displayed on or submitted
to the Site. It may be necessary for us to monitor, review or remove information or content from
the Site in order to comply with or satisfy applicable obligations, laws, rules and regulations,
or as is required by legal process or governmental request. We specifically reserve the right, but
do not assume the obligation, to immediately remove content or information we deem to be in violation
of these Site Terms and Conditions.
Your Content and Information
Acuity Lighting shall not claim intellectual property rights ownership in any original content and
information You create and subsequently submit, provide or post to the Site, including without
limitation any information or content You transmit by e-mail to Acuity Lighting or others or that
You post in the "My Projects" area ("User Content") except to the extent such materials contain
pre-existing Acuity Lighting materials or information, such as Acuity Lighting product information
or software code, among other things, to which Acuity Lighting retains and reserves all intellectual
property rights. You agree that You are solely responsible and liable for User Content, including
among other things for the accuracy, completeness, legality and integrity of User Content. You also
represent and warrant that the User Content (i) is true, current, correct, and complete; (ii) does
not violate any contract, law, rule, order, judgment or regulation to which the User Content may
be subject; and (iii) does not contain links, descriptions, terms, directions, signals or messages
that could lead to a circumvention of sales revenue or fees, if any, due Acuity Lighting for
transactions that result from or arise out of the Site. You also represent and warrant that You
have provided Acuity Lighting with all necessary rights to display, publish and make the User
Content available through the Site. By submitting, transmitting, or posting content or information
to the Site, You grant Acuity Lighting nonexclusive, sublicensable, worldwide, perpetual, royalty-free,
and irrevocable rights and licenses to exercise all copyright and publicity rights with respect to
User Content (and in addition, any other rights necessary to display the User Content on the Site)
and to use the User Content in providing products and services to You at Your request. For example,
and without limitation, Acuity Lighting could copy and display a design that You save in the "My
Projects" area of the Site as an example of uses that can be made of Acuity Lighting’s products and
services.
Links to and/or from the Site
From time to time, the Site may contain links to third-party Web sites not controlled by Acuity
Lighting. Acuity Lighting provides such links as a convenience to You, and in no way endorses
such third party sites. You acknowledge and agree that Acuity Lighting is not responsible and
shall not have liability for any aspect of the information or content contained on any third
party sites accessible or linked to the Site. You shall not "frame" or "mirror" or otherwise
provide through the Internet or other means to others any content or information contained on
or accessible from the Site without the prior written approval of Acuity Lighting and its
applicable licensors.
Logins and Passwords
The Site requires You to enter a unique login and password ("Login and Password Information")
in order to access certain areas of the Site. You are solely responsible and liable for
maintaining the privacy and security of the Login and Password Information and therefore You
will be solely responsible and liable for all actions on the Site that occur through the use
of the Login and Password Information until forty-eight (48) hours after You notify Acuity
Lighting, pursuant to the notice provisions hereunder, that such information must be changed
or discontinued. You shall immediately notify Acuity Lighting in writing by e-mail to
VisualSupport@AcuityBrands.com of any potential breaches of secrecy of the Login and Password Information
and of the departure of any employee with access to the Login and Password Information. Upon
receipt of such written notice, Acuity Lighting shall issue new Login and Password Information
to You by sending an e-mail to Your registered e-mail address.
Electronic Agreement
At different points on the Site, You may be prompted by a notice indicating that continuation
with a particular process, submission or transmission of data, or otherwise taking some
affirmative action such as clicking a particular button shall constitute Your Electronic Agreement.
"Electronic Agreement" shall mean that You have indicated consent or agreement to any electronically
displayed terms and conditions by using electronic means. You agree that (i) You shall be legally
obligated and bound, as by any other contract that binds You, by any electronic terms and conditions
for which You give indication of acceptance or assent to agree to or be bound by using an Electronic
Agreement; and (ii) the Electronic Agreement shall be deemed to satisfy all applicable legal
requirements for a writing and for execution, including without limitation the requirements for
introduction of the execution of an original writing into evidence in a court of law ("Legal
Requirements"). You waive and agree not to assert any defense or assertion that the Electronic
Agreement does not satisfy any of the Legal Requirements or that the Electronic Agreement is not
a valid execution of a binding agreement. Acuity Lighting will maintain all appropriate records
of Your Electronic Agreements as solely determined by Acuity Lighting. Acuity Lighting makes no
representation, warranty or other guarantee regarding the enforceability of such Electronic
Agreements in any jurisdiction and specifically reserves the right, for itself and other users of
the Site, to require Your written signature if it deems such signature is useful or necessary to
create a binding agreement in any particular jurisdiction or setting.
Indemnity
You shall defend, indemnify and hold Acuity Lighting, and its respective directors, officers,
employees, agents and contractors harmless from all damages, injuries, liabilities, costs, fees
and expenses (including, but not limited to reasonable attorney and accounting fees) arising
out of or resulting from all demands, lawsuits, claims, causes of action, and proceedings
("Claims") arising from or in any way relating to each of the following: (i) Your use of the
Site, (ii) User Content that You submit, post, or otherwise transmit to the Site, including
without limitation via email to Acuity Lighting, (iii) Your violation of these Site Terms and
Conditions, or (iv) misuse of the Site by You or any of Your employees, contractors or agents.
Acuity Lighting shall notify You promptly of any such Claim and shall assist You if applicable,
at Your sole expense, in defending any such Claim. Notwithstanding the foregoing, You shall keep
Acuity Lighting informed of the progress of any such Claim, and You shall not have the authority
to admit any liability on the part of Acuity Lighting in connection with any such Claim and shall
not enter into a settlement or resolution which admits liability or fault on the part of Acuity
Lighting or fails to release Acuity Lighting from all claims and liability. If You fail to act
against such Claims as provided herein, or Acuity Lighting otherwise reasonably believes that its
position is or will be compromised through Your defense of the Claim, Acuity Lighting shall have
the right to take appropriate legal action and You shall pay all expenses actually and reasonably
incurred in connection therewith.
No Warranty
YOU ACKNOWLEDGE THAT ACUITY LIGHTING DOES NOT IN ANY WAY REPRESENT, WARRANT, ENDORSE OR GUARANTEE
IN THESE SITE TERMS AND CONDITIONS, ANY PRODUCT, ANY INFORMATION YOU RECEIVE FROM ACUITY LIGHTING
OR OTHER USERS OF THE SITE OR ANY OUTCOME OR RESULT FROM YOUR RELATIONSHIP WITH ACUITY LIGHTING.
ACUITY LIGHTING DOES NOT REPRESENT OR WARRANT THAT, AND ACUITY LIGHTING IS NOT OBLIGATED TO ENSURE
THAT, THE SITE WILL OPERATE FREE FROM ERROR, DELAY OR DOWNTIME, BE AVAILABLE IN A SPECIFIC LOCATION
OR JURISDICTION, OR THAT THE SITE AND ITS SERVERS ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL
CODES. IF YOUR USE OF THE SITE RESULTS IN THE NEED FOR SERVICING OR REPLACING OR RECOVERING EQUIPMENT,
SOFTWARE OR DATA, ACUITY LIGHTING IS NOT RESPONSIBLE OR LIABLE FOR THOSE COSTS.
YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SITE IS AT YOUR OWN RISK. THE SITE AND ALL INFORMATION AND
CONTENT ON THE SITE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE
EXPRESSED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, ACUITY LIGHTING DISCLAIMS ALL WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, QUIET ENJOYMENT, TITLE, AND FITNESS FOR PARTICULAR PURPOSE. ACUITY LIGHTING DOES NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF
THE CONTENT OR INFORMATION PROVIDED ON THE SITE. NO CONTENT IS A SUBSTITUTE FOR INDEPENDENT LIGHTING
ANALYSIS AND TESTING FOR LIGHTING SAFETY AND SUITABILITY.
Limitations on Liability
YOU ACKNOWLEDGE AND AGREE THAT YOU MUST INDEPENDENTLY EVALUATE AND ASSUME ALL RISKS AND LIABILITY
ASSOCIATED WITH YOUR USE OF THE SITE. EXCEPT AS YOU MAY OTHERWISE EXPRESSLY AGREE IN WRITING WITH
AN AUTHORIZED ACUITY LIGHTING REPRESENTATIVE, YOU ACKNOWLEDGE AND AGREE THAT NEITHER ACUITY LIGHTING
NOR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS SHALL HAVE ANY LIABILITY UNDER ANY
THEORY OF LAW FOR ANY CLAIMS (DEFINED ABOVE IN THE INDEMNITY SECTION) ARISING OUT OF OR RELATING TO
ACUITY LIGHTING OR OTHER USER OF THE SITE, ANY ACUITY LIGHTING PRODUCT OR SERVICE, ANY INFORMATION
PROVIDED BY ACUITY LIGHTING OR OTHER USER OF THE SITE, INCLUDING WITHOUT LIMITATION INFORMATION ABOUT
ACUITY LIGHTING'S PRODUCTS OR SERVICES, OR DAMAGES RESULTING FROM DIFFERENCES BETWEEN MEASURED
LIGHTING SYSTEM PERFORMANCE AND LIGHTING SYSTEM PERFORMANCE PREDICTED USING THE CONTENT, WHETHER
BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF CAUSE, EVEN IF
ACUITY LIGHTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACUITY LIGHTING HAS NO OBLIGATION
UNDER THESE SITE TERMS AND CONDITIONS AND SHALL NOT HAVE ANY LIABILITY TO OFFER ANY PARTICULAR PRODUCT
OR SERVICE THROUGH THE SITE TO YOU.
General Limitation of Liability
IN NO EVENT WILL ACUITY LIGHTING, OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS BE
LIABLE TO YOU OR ANY OF YOUR EMPLOYEES, CONTRACTORS OR AGENTS FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS, OR REVENUE,
OR ANY LOSS OF DATA, CONTENT OR INFORMATION. IN NO EVENT SHALL ACUITY LIGHTING’S TOTAL LIABILITY
ARISING OUT OF OR RELATING TO THESE SITE TERMS AND CONDITIONS AND YOUR USE OF THE SITE EXCEED ONE
HUNDRED DOLLARS ($100). THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY, REGARDLESS OF
WHETHER ACUITY LIGHTING WAS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS
OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT
LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
Some states or jurisdictions do not allow the exclusion or limitation of certain damages or the
disclaimer of certain warranties. The limitations and disclaimers provided in these Site Terms
And Conditions are intended to apply to the fullest extent allowable under applicable law.
Confidentiality
In connection with Your use of the Site, Acuity Lighting may disclose to You certain Proprietary
Information (defined below). You acknowledge and agree that any Proprietary Information is the sole
and exclusive property of Acuity Lighting (or a third party providing such information to Acuity
Lighting) and that Acuity Lighting or such third party owns all worldwide rights therein under patent,
copyright, trade secret, confidential information, and other tangible or intangible property right
laws. You are permitted to use Acuity Lighting Proprietary Information solely in connection with Your
business purposes that relate to Acuity Lighting and the Site and shall not disclose Acuity Lighting
Proprietary Information to any third party. For purposes of these Site Terms and Conditions, (i)
"Confidential Information" has the meaning set forth under Georgia law; (ii) "Trade Secrets" means
trade secrets as defined under Georgia law; and (iii) "Proprietary Information" means Trade Secrets
and Confidential Information and includes without limitation all information posted or otherwise
loaded on to the Site and accessible only by the use of the Login And Password Information. Except as
otherwise agreed in writing, Acuity Lighting shall not have any obligation with regard to the use or
confidentiality of any information disclosed by you.
The obligations set forth herein with respect to Trade Secrets shall remain for as long as such
information remains a trade secret under Georgia law, and for Confidential Information shall continue
for the duration of Your use of the Site and for three (3) years thereafter.
Nothing in this Section shall prohibit or limit Your use or disclosure of information if You prove (i)
at the time of disclosure hereunder such information is generally available to the public; (ii) after
disclosure hereunder such information becomes generally available to the public, except through breach
of these Site Terms and Conditions by You; (iii) such information was in Your possession prior to the
time of disclosure by Acuity Lighting and was not acquired directly or indirectly from Acuity Lighting;
(iv) the information becomes available to You from a third party which is not legally prohibited from
disclosing such information, provided such information was not acquired directly or indirectly from Acuity
Lighting; (v) the information was developed by or for You independently of the disclosure of such
information by Acuity Lighting; or (vi) the Proprietary Information is disclosed by You pursuant to a
requirement of a governmental agency or by operation of law, provided that, with respect to clause, (vi)
You shall first notify Acuity Lighting prior to disclosure in order to give Acuity Lighting an opportunity
to seek an appropriate protective order and/or waive compliance with the terms of these Site Terms and
Conditions and shall disclose only that part of the Proprietary Information which You are required to
disclose.
Sanctions Procedures
Acuity Lighting shall be entitled to impose sanctions against You if You violate these Site Terms and
Conditions or any of the published rules of the Site ("Sanction Event"). At Acuity Lighting’s sole
determination and discretion, if the Sanction Event could cause damage to Acuity Lighting, other users
of the Site, or any third party, Acuity Lighting shall have the right but not the obligation to
immediately and without notice suspend or terminate Your access to the Site, without limiting any of
the other remedies that may be available to Acuity Lighting at law or in equity or Acuity Lighting’s
other rights to terminate Your use of the Site under these Site Terms and Conditions.
Product Recommendations
This Site provides tools for lighting project design and analysis and may provide tailored
recommendations for specific lighting applications. However, You are responsible to ensure that the
design and analysis results are appropriate for Your specific lighting requirements, and will comply
with local codes and ordinances. You shall have sole liability regarding Your selection of products
and services to achieve Your intended results.
Independent Parties
You and Acuity Lighting are independent organizations acting for their own account and nether party
nor its agents or employees are authorized to make any representation otherwise or any commitment on
any other party’s behalf unless previously authorized by such party in writing. Neither party is
responsible to any third party for the quality of the services or products provided by any other party.
Termination
You may terminate Your access rights to the Site at any time by discontinuing use of the Site and
providing notice to Acuity Lighting. Acuity Lighting shall have the right but not the obligation to
terminate Your access and rights to the Site at any time for any or no reason. Upon termination of
these Site Terms and Conditions, all Sections of these Site Terms and Conditions shall remain in full
force and effect except for the Content License and Restrictions section and the Logins and Passwords
section.
Notices
All notices required to be given to Acuity Lighting hereunder shall be sent by certified mail to:
Acuity Brands Lighting, Inc.
Attn: Visual-3D.com Administrator
One Lithonia Way
Conyers, GA 30012
Telephone: 770-922-9000
All notices required to be given to You hereunder may be posted on the Site or delivered to the e-mail
address provided to Acuity Lighting by You at the time of registration, and as changed by You from time
to time, and shall be effective upon posting and / or delivery, whichever occurs first.
Governing Law and Jurisdiction
THESE SITE TERMS AND CONDITIONS SHALL BE EXCLUSIVELY CONSTRUED, GOVERNED AND ENFORCED UNDER THE LAWS
OF THE UNITED STATES AND THE STATE OF GEORGIA (WITHOUT REGARD TO RULES GOVERNING CONFLICT OF LAWS).
You agree that a non-exclusive venue for all actions, relating in any manner to these Site Terms and
Conditions or use of the Site, shall only be in a federal or state court of competent jurisdiction
located in Fulton County, Georgia. You hereby consent and submit to the in personam jurisdiction of
such courts, and to the extent permitted by law, hereby consent that all services of process may be
made by any nationally recognized overnight courier, or by certified or registered mail, postage
prepaid and return receipt requested. You waive any objection based on forum non-conveniens and waive
any objection to venue of any action instituted hereunder to the extent that an action is brought in
the courts identified above. You agree that a final judgment in any such action shall be conclusive
and may be enforced in any other jurisdiction in any manner provided by law.
Force Majeure
Acuity Lighting shall not be liable for delay or failure in any of its performance hereunder due to
causes beyond its reasonable control, including but not limited to, an act of God, war, natural
disaster, governmental regulations, communication or utility failures or casualties or the failures
or acts of third parties.
Entire Agreement
These Site Terms and Conditions, the Site Privacy Policy, and any and notices, guidelines, directions,
instructions or directives posted on the Site by Acuity Lighting from time to time, and all amendments,
modifications, additions or changes to the foregoing constitute the entire agreement regarding Your use
of the Site and supersedes all prior discussions and agreements, oral and written, between the parties
relating thereto.
Assignment
You shall not assign Your Login and Password Information without the prior written consent of Acuity
Lighting. You shall not assign Your rights or obligations under these Site Terms and Conditions,
including without limitation through any change of control or by operation of law, in whole or in part,
without the prior written consent of Acuity Lighting. Acuity Lighting may freely assign any or all of
its rights and obligations under these Site Terms and Conditions, in whole or in part for any reason,
provided that the acquiring or resulting entity agrees in writing to be bound by the terms of these
Site Terms and Conditions. Subject to the foregoing restrictions, these Site Terms and Conditions will
be binding on, inure to the benefit of and be enforceable against the parties and their respective
successors and assigns.
Miscellaneous
Acuity Lighting has the right but not the obligation to amend, modify or otherwise change these Site
Terms and Conditions, the Site Privacy Policy, and/or any other applicable agreements (collectively
"Site Agreements") at any time by posting such changes on the Site. Such changes shall be effective
at the time they are posted. In the event any of the provisions of the Site Agreements are held
unenforceable or invalid by court of competent jurisdiction, such provisions shall be deemed severed
from the applicable agreement and the remaining provisions thereof shall remain in full force and
effect. Should any provision of the Site Agreements require judicial interpretation, the parties agree
that the court interpreting or construing the same shall not apply a presumption that the terms of
these Site Agreements shall be more strictly construed against one party than against another. Headings
of particular Sections are inserted only for convenience and are not to be used to define, limit or
construe the scope of any term or provision of these Site Terms and Conditions. Failure of any party to
enforce, in any one or more instances, any of the Site Agreements shall not be construed as a waiver of
the other party’s continuing obligations under any such terms or conditions. No consent to a breach of
any express or implied term of the Site Agreements, or any other notice, directive, or rule otherwise
posted on the Site, which shall only be effective if in writing and signed by the applicable non-breaching
party, shall constitute a consent to any prior or subsequent breach thereof. Except as may be expressly
set forth herein, no provision of these Site Terms and Conditions shall be construed to provide or create
any third party beneficiary right or any other right of any kind in any third party.