DEVELOPER PORTAL AGREEMENT – ATRIUS™ PLATFORM
YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE PROCEEDING
This is an agreement for Acuity Brands Technology Services, Inc. (“Acuity”) to remotely provide you with access to its Atrius™ Platform via certain application program interfaces and to provide you with information regarding the application program interfaces (the “Documentation”) to allow you to evaluate the Atrius™ Platform (collectively the “Service”). The Service is provided to You subject to the following terms and conditions, which define what You can and cannot do with the Service, and provide conditions and limitations on warranties and remedies.
By clicking “I Accept”, accessing the Documentation, or utilizing the Service, You acknowledge Your agreement to comply with the terms and conditions of this agreement (the “Portal Agreement”). If You do not agree to the terms and conditions of this Portal Agreement, then do not click “I Accept”, access the Documentation, or utilize the Service, and do notify Acuity in writing as soon as reasonably possible of Your rejection of the Portal Agreement at email@example.com.
IF YOU ARE ENTERING THIS PORTAL AGREEMENT ON BEHALF OF AN ORGANIZATION, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS PORTAL AGREEMENT SHALL MEAN COLLECTIVELY THE ORGANIZATION AND THE END USER OF THE SERVICE. IN SUCH INSTANCE, BY CLICKING “I ACCEPT”, ACCESSING THE DOCUMENTATION,OR UTILIZING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER THIS PORTAL AGREEMENT ON BEHALF OF THE ORGANIZATION, AND THAT THE ORGANIZATION AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS PORTAL AGREEMENT.
- Grant of License. If You agree to the terms of this Portal Agreement and continue to meet Your obligations hereunder, Acuity shall allow you on a non-exclusive, non-transferable, and limited basis to a) access the Service, and b) use the most recent version of the Documentation which Acuity chooses to offer other parties under terms similar to this Portal Agreement. In all cases, You may only use the forgoing rights solely for the purpose of evaluating the Atrius Platform (the “Purpose”) and not for any commercial reason. No license or sale of any software or data is provided.
- Changes to Functionality or Ongoing Access. Notwithstanding anything herein to the contrary, Acuity retains the right, in Acuity’s sole discretion and at any time, to (a) update and modify the Documentation or Service, (b) replace the Documentation or Service with another product or service, and (c) discontinue making the Documentation or Service available (subject to any independent obligation to provide the Service for a specific term).
- General Restrictions. The Documentation is protected under copyright, trade secret, and other intellectual property laws. You may not (a) sublicense, reproduce, distribute, market, sell, transfer, or disclose the Documentation or Service, (b) translate, modify, disassemble, or reverse engineer the Documentation or the Service (except to the extent permitted by law), (c) create derivative works based on any portion of the Documentation or Service (except as provided in Section 4), (d) obtain possession of any source code or other technical material relating the Service, (e) use the Service other than in accordance with the Documentation, (f) use the Documentation or Service after expiration or termination of this Portal Agreement (unless You enter into a separate agreement with Acuity for continued use), (g) use the Documentation or Service for the benefit of a third party (including through the operation of a service bureau) or otherwise directly commercially exploit the Documentation or Service, (h) remove, alter, or obscure any copyright notice(s) or proprietary legend(s) contained on the documentation or included in the Documentation or Service, in each case as provided by Acuity. You agree all tests performed on or using the Documentation or Software are for Your use only and are only for the Purpose. You agree that You shall not share the results of such tests with any third party without Acuity’s prior written consent.
- Allowable Derivative Works. You may create derivative works of the Documentation, provided that such derivative works are solely used for the Purpose both during and after expiration of this Portal Agreement.
- Ownership. The Documentation and the Service are not in the public domain. Acuity, its affiliates, and/or its licensors are the owners of all intellectual property rights, including without limitation patent, trademark, copyright, and trade secret rights, in the Documentation and the Service, and the techniques and ideas embodied and expressed in the foregoing, including the structure, sequence, and organization of the Service (collectively the “Program Concepts”). You acknowledge that You have no rights in or to the Documentation, the Service, the Program Concepts or any copies thereof.
- Proprietary Rights and Information. You acknowledge and agree that the Documentation, Service, and all information related thereto or disclosed or delivered to You in relation to this Portal Agreement (“Acuity’s Information”) represent Acuity’s confidential and proprietary information. You agree to keep Acuity’s Information confidential by exercising the necessary care required to prevent its disclosure. Notwithstanding the above, You will not disclose, divulge, distribute, publish, transmit, or transfer Acuity’s Information to any third party or use Acuity’s Information for any purpose whatsoever other than as expressly authorized by this Portal Agreement. Your obligations with respect to Acuity’s Information deemed “trade secrets” under applicable law shall remain in effect for as long as Acuity’s Information remains a trade secret. Your obligations with respect to Acuity’s Information that is not deemed to be a trade secret shall remain in effect for a period of three (3) years following the last day you receive any of Acuity’s Information.
- >The Data. You acknowledge that all data provided by Acuity via the Service is test data (as distinct from live data). Acuity is providing this data to You solely for the Purpose and Acuity represents and warrants that Acuity has all rights necessary to provide the data for this reason. Except as set forth in this Section, Acuity provides the data to You on an “as is” basis and Acuity disclaims any and all warranties, whether express or implied, including without limitation, any warranties of merchantability, fitness for a particular purpose, and non-infringement.
- License to Your Data. To the extent that You provide any information to Acuity, either through the execution of this Portal Agreement or through the use of the Documentation or Service (but excluding any feedback regarding the Documentation or Service), such information shall be considered “Your Data”. You agree that Acuity may utilize Your Data for the purposes of performance of Acuity’s obligations under the Agreement and for consolidation into anonymized data sets. The results of such consolidation (“Anonymized Data”) may be used by Acuity for any lawful purpose. Anonymized Data shall not contain (i) any personally identifiable information (i.e., information that alone or in combination with other information can be reasonably used to identify an individual person), (ii) any protected health information (i.e., any protected health information gathered shall be de-identified in accordance with 45 CFR 164.514 prior to incorporation in the Anonymized Data set), or (iii) any information that identifies or can be reasonably used to identify You or Your suppliers as the source. Additionally, you hereby license Acuity to use Your Data to contact You regarding other products and services that Acuity may offer on its own behalf or on behalf of others.
- Feedback. You agree that Acuity shall have the right to use, without attribution or compensation to You, any feedback that You provide to Acuity to improve, enhance, or modify the Documentation or Service.
- General Warranty Disclaimer. Other than as explicitly set forth in Section 7, the Documentation and Service are provided to You on an “as is” basis and Acuity disclaims any and all representations and warranties, whether express or implied, including without limitation, any warranties of merchantability, fitness for a particular purpose, and non-infringement. Without limiting the foregoing, You agree that Acuity and its officers, directors, agents, and employees, shall have no liability for errors or omissions in (a) the output of the Service, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, (b) the operation of equipment connected to the Service, (c) the transmission and reception of data, or (d) the processing of data by the Service. Acuity does not represent or warrant that the Documentation or Service will operate or be available continuously or error free. You expressly accept that the installation, establishment, and maintenance of proper safety controls and procedures and proper monitoring and operation of all equipment within Your control is Your responsibility and not that of Acuity, and hereby waive any claims of liability of Acuity to any damages that may result from such operation. Reliance upon the Documentation or Service shall not be considered a basis for transferring any portion of such responsibility to Acuity nor a basis for contributory or comparative liability.
- Special Warranty Disclaimer. Without modification to Section 10, You agree and acknowledge that Acuity is providing You with the Documentation and Service as a tool which is to only be used by an individual of appropriate training and expertise as an adjunct to his or her professional judgment. Such individual shall be solely responsible for reviewing all data put into, and all data extracted from, the Documentation and Service to ensure that it meets all applicable professional standards and legal requirements as well as Your needs and expectations. Acuity does not represent or warrant and expressly disclaims that (a) the Documentation or Service will properly scale or translate data between different software programs or data formats, and (b) the Documentation or Service will conform any output to meet any professional standards or legal requirements.
- Limitation on Types of Damages. IN NO EVENT WILL ACUITY OR ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, PERFORMANCE, USE OF OR INABILITY TO USE THE DOCUMENTATION OR SERVICE OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS PORTAL AGREEMENT, EVEN IF ACUITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
- Limitation on Total Damages. THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF ACUITY FOR ANY AND ALL CLAIMS UNDER THIS PORTAL AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, SHALL BE ONE HUNDRED UNITED STATES DOLLARS ($100). NO ACTION ARISING OUT OF THIS PORTAL AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE DATE THE CAUSE OF ACTION HAS ACCRUED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER CERTAIN CIRCUMSTANCES, SO THIS PARAGRAPH MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend, and hold harmless Acuity and its officers, directors, employees, agents, successors, representatives and assigns from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney or accounting fees) sustained, incurred, or arising from (a) Your use or misuse of the Documentation or Service or Program Concepts, including any output therefrom, and (b) Your violation of any term of this Portal Agreement.
- Verification. On the reasonable request of Acuity, You shall furnish Acuity with a signed statement that the Documentation and Service and the Program Concepts are being used pursuant to the terms and conditions of this Portal Agreement. If Acuity has reason to believe that the Documentation or Service or the Program Concepts are not being used in accordance with the terms and conditions of this Portal Agreement, You shall permit Acuity to review Your relevant records and inspect Your facilities to ensure compliance with this Portal Agreement. Acuity will conduct such inspection during normal business hours in a manner that does not unreasonably interfere with Your business operations.
- Term and Termination. This Portal Agreement shall become effective when (a) You click “I Accept”, (b) You or someone acting on Your behalf first accesses the Documentation, or (c) You or someone acting on Your behalf first utilizes the Service for any purpose. This Portal Agreement shall continue in full force so long as you continue to utilize the Service unless it is terminated earlier as set forth herein or is superseded by a signed agreement between You and Acuity. This Portal Agreement shall automatically terminate should You voluntarily or involuntarily become subject to the jurisdiction of any bankruptcy court. Acuity hereby reserves the right to terminate this Portal Agreement upon written notice at any time. Upon termination of this Portal Agreement for any reason, You shall immediately cease using the Documentation and Service and return any and all related documentation to Acuity, or, at Acuity’s discretion, You shall permanently destroy all copies of the related documentation in Your possession or control. Upon termination or expiration of this Portal Agreement all sections of this Portal Agreement which by their nature should survive shall continue in full force and effect, including without limitation Sections 3 – 23.
- U.S. Government Restricted Rights. The following applies to all acquisition of the software embodied in the Service or Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant, or other activity with the U.S. government. The software and services related to such software provided to You hereunder are “commercial items” as that term is defined at 48 C.F.R. 2.101 (October 1995) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995, amended Nov. 2007) and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 (June 1995), all U.S. Government users and licensees acquire the software and its associated documentation with only those rights and subject to the restrictions set forth in this Portal Agreement. Notwithstanding the foregoing, the software may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 (June 1987) or DFARS Subpart 227.4 (Oct. 1988). If this Portal Agreement is inadequate to meet the government’s needs or is inconsistent in any respect with Federal law, the government should return the software, unused, to Acuity.
- Injunctive Relief. You acknowledge that remedies at law shall be inadequate to provide Acuity with full compensation in the event of Your material breach of this Portal Agreement, and that Acuity shall therefore be entitled to injunctive relief in the event of any such material breach without the need to post bond or prove the inadequacy of monetary damages. Regardless of any provisions to the contrary, Acuity shall have no obligation to allow You to cure Your breach prior to seeking injunctive relief and shall be entitled to seek such injunctive relief in any jurisdiction regardless of any choice of law or venue provisions.
- Governing Law. This Portal Agreement shall be construed and governed in accordance with the laws of the State of Georgia of the United States of America, without regard to its rules regarding conflicts of law. Neither the Uniform Commercial Code, any part of the Uniform Computer Information Transactions Act (if adopted), nor the United Nations Convention on the International Sale of Goods shall apply to the Documentation or Services or this Portal Agreement. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Fulton County or Rockdale County within the State of Georgia
- Compliance with Laws and Export Rules. You shall be solely responsible for ensuring that Your use of the Documentation, Service, and Your Data is in full compliance with all applicable laws and without violation of the rights of third parties. Without limiting the forgoing, You represent and warrant that the Documentation and Service will not be exported to, or used by, nor will the data gained therefrom be exported to, transshipped or re-exported to (a) any individual located in any nation to which export, transshipment, or re-export is prohibited by U.S. law or regulation at that time (collectively, the “Restricted Nations”); (b) any business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (c) the governments of a Restricted Nation or any business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation; or (d) any individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons, as each may be amended from time to time.
- Waiver / Severability. The failure of Acuity to exercise or enforce any right or provision of this Portal Agreement shall not constitute a waiver of such right or provision. Should any court or legal authority hold any provision of this Portal Agreement unenforceable or invalid for any reason, then You and Acuity agree that such court or authority shall attempt to craft an acceptable provision most closely resembling the intent of the offending provision, and if such court or authority is unable or unwilling to do so then this Portal Agreement shall be construed as if such provision were never contained in this Portal Agreement.
- Assignment. You cannot assign, sublicense, or transfer this Portal Agreement without the prior written consent of Acuity. Any attempt by You to sublicense, assign, or transfer any rights, duties, or obligations hereunder is null and void. Acuity may assign, sublicense, or transfer this Portal Agreement, in whole or in part, at will and without notice to You.
- Merger. This Portal Agreement comprises the entire agreement between You and Acuity with respect to the Documentation and the Service and supersedes any other agreement or discussion, oral or written, with respect thereto.
- Electronic Execution. If You are presented with an electronic version of this Portal Agreement, by clicking “I Accept”You agree to transact business with Acuity electronically.
- Execution Warranties. You represent and warrant that You have the authority to accept this Portal Agreement on behalf of Yourself and any organization You represent, that You are more than 18 years of age, will abide by and comply with this Agreement, are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and are not listed on any U.S. Government list of prohibited or restricted parties.