Effective: October 1, 2002
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.
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; and
Implement all Internet access and all security procedures required to use the Site at Your sole expense.
Comply with all applicable federal, state and local laws, statutes and regulations in the performance of Your obligations under 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 passwords ("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 support@VisualLightingSoftware.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.
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.
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.
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 LIGHTHING 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.
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.
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.
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.
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.
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.
All notices required to be given to Acuity Lighting hereunder shall be sent by certified mail to:
Acuity Brands Lighting, Inc.
Attn: VisualLightingSoftware.com Administrator
One Lithonia Way
Conyers, GA 30012
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.
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.
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.