Software as a Service Agreement of Rain
You must agree
This IQ Cloud Software
as a Service Agreement of Rain Bird Corporation (“Agreement”) is entered into between Rain Bird
Corporation, 970 West Sierra Madre Avenue, Azusa, California 91702 (“Rain Bird”) and the individual, entity or organization (collectively “Customer”) on whose behalf you are accepting
this Agreement. Rain Bird agrees to provide Customer the Services (as defined below) subject to the following terms and conditions.
Please read this Agreement carefully.
By (electronically) agreeing and accepting, you acknowledge that you have read and understand these terms and represent that you have the
authority to enter into this Agreement on behalf
of the Customer.
If you do not have authority to enter this Agreement on behalf of the
alleged Customer, you will be considered the Customer under this Agreement.
. Rain Bird will provide Customer with access to certain of its hosted IQ Cloud software product (collectively “Software”), as well as applicable
related services and support (“Services”) based on the
functionality, features, options and fees related to the
Software and Services.
understand that Rain Bird may use a third party to host the
and Services, or portions thereof.
To assist us in the delivery of the
and Services, you agree to provide us with certain information
requested by us relating to
Use Rights and License
to Intellectual Property.
a) Rain Bird hereby grants to Customer
a limited, non-exclusive, non-transferable license to use the Software solely
in accordance with Rain Bird’s specifications.
b) Customer shall not, directly,
indirectly, alone, or with another party, attempt to access the Software in a manner
not permitted by Rain Bird under this Agreement. Such non-permitted purposes would include
attempting to (i) copy, disassemble, reverse engineer, or decompile the Software;
(ii) modify, create derivative works based upon, or translate the Software; (iii) license, sell, rent, lease, transfer, grant any
rights in or otherwise commercially exploit the Software in any
form to any other party, nor shall Customer attempt to do any of the foregoing
or cause or permit any third party to do or attempt to do any of the foregoing.
c) Rain Bird shall retain all right,
title and interest in and to its Software and Services and any
underlying software, patents, copyrights, trademarks, service marks, logos and
trade names worldwide (“Intellectual Property”) subject to the limited license
provided by this Agreement. Customer shall
use the Intellectual Property only as provided, and shall not alter the
Intellectual Property in any way, or act or permit action in any way that would
impair Rain Bird’s rights in its Intellectual Property. You acknowledge
that Customer’s use of the Intellectual Property shall not create in Customer or
any other person any right, title or interest in or to such Intellectual
Property. Any goodwill accruing from the
use of the Intellectual Property shall inure solely to the benefit of Rain Bird.
3. Privacy. Rain Bird collects certain information,
including names, addresses, and other information (“Customer Information”), required
of the Customer in order to gain access to the Software and Services
through the hosted website and other means provided by Rain Bird. Customer privacy
is very important to Rain Bird. Upon acceptance of this Agreement, Customer confirms
which is incorporated herein by reference. Each party shall comply with all
applicable laws, regulations and guidelines governing online privacy, including
obligations hereunder and in collecting and using Customer Information about customers
of the Software and Services.
4. Information Security. All Customer Information collected by Rain
Bird shall be stored on a secure server.
Rain Bird will implement reasonable and appropriate measures designed to
secure Customer Information from accidental loss and from unauthorized access,
use, alteration or disclosure. However, Rain
Bird cannot guarantee that unauthorized third parties will never be able to
defeat those measures or use the Customer Information for improper
purposes. Customer acknowledges that it
provides its Customer Information at its own risk.
Customer may access its Customer Information at any time
using Customer’s private password and “login” identifier. Customer is responsible for the security of
the login identifier and for its use or misuse by its authorized users. Customers will be responsible for protecting
the privacy and security of any information that they retrieve from Rain Bird and
shall prevent any unauthorized or illegal use or dissemination of such
5. Financial Terms.
a) Rain Bird shall set the fee for access
to the Software and Services. The fee
will be for the current version of the Software and
Services and will include improvements and enhancements to the Software provided under this Agreement as such improvements or
enhancements become available, provided your customer status is current.
b) The fee may change at the discretion of
Rain Bird, but for a current customer, such change will not take effect until
the next renewal.
c) Customer is responsible for updating tax
exemption certificates and other customer information. Delay to remain current as a customer may
cause suspension of access to the Software and Services.
d) The Fee does not include any taxes,
levies, duties or similar governmental assessments of any nature, including,
for example, value-added, sales, use, or withholding taxes, assessable by any
jurisdiction whatsoever (collectively, “Taxes”). The Customer is responsible
for paying all Taxes for which it is responsible under this section. If Rain Bird has the legal obligation to pay
or collect Taxes for which the Customer is responsible under this section, Rain
Bird or a Rain Bird Distributor will charge the Customer and the Customer will
pay that amount unless the Customer provides a valid tax exemption certificate
authorized by the appropriate taxing authority.
6. Limited Warranty. Rain Bird warrants that the Software will
perform substantially in conformance with the product documentation and other
printed materials regarding the Software. Rain Bird does not warrant that
the Software will meet all of Customer’s requirements or that the use of the Software
will be uninterrupted or error-free. The foregoing warranty applies only to
failures in operation of the Software as hosted by Rain Bird and does not apply
to: (i) attempted modifications or alterations by Customer or any third
party that is not authorized by Rain Bird; (ii) any operation of the Software
that is otherwise in violation of this Agreement or other than in accordance
with the product documentation or other printed materials for the Software; or
(iii) failures that are caused by Customer’s software or hardware
products. To the maximum extent permitted under applicable law, as Rain Bird’s
entire liability, and as Customer’s exclusive remedy for any breach of the
foregoing warranty, Rain Bird will, at its sole option and expense, promptly
repair and update the Software that fails to meet this limited warranty, or if
Rain Bird in its sole discretion determines that it is unable to repair and
update the Software, Rain Bird will refund the fees paid by the Customer for
the current term.
Except as expressly stated in this section, to the
maximum extent permitted under applicable law, Rain Bird is providing and
licensing the use of the software to Customer “as is” without warranty of any
kind, either express or implied, including, but not limited to, the implied
warranties of merchantability, title, non-infringement of third-party
intellectual property, and fitness for a particular purpose.
7. Intellectual Property Indemnification. Rain Bird will indemnify and hold Customer harmless
from any third party claim brought against Customer that the Software, as
provided by Rain Bird to Customer under this Agreement and used within the
scope of this Agreement, infringes or misappropriates any patent, copyright,
trademark, trade secret, or other intellectual property rights of a third
party, provided (i) use of the Software by Customer is in conformity with the Agreement
and product documentation; (ii) the infringement is not caused by modification
or alteration of the Software or product documentation; and/or (iii) the
infringement was not caused by a combination or use of the Software with
products not supplied by Rain Bird. Rain Bird’s indemnification
obligations are contingent upon Customer: (i) promptly notifying Rain Bird
in writing of the claim; (ii) granting Rain Bird sole control of the selection
of counsel, defense, and settlement of the claim; and (iii) providing
Rain Bird with reasonable assistance, information and authority required
for the defense and settlement of the claim. This Section states Rain Bird’s
entire liability (and shall be Customer’s sole and exclusive remedy) with
respect to Customer’s indemnification.
If the alleged infringing Software becomes, or in
Rain Bird’s opinion be likely to become, the subject of an Infringement
Claim, Rain Bird will, at Rain Bird’s option and expense, do one of the
following: (a) procure the rights necessary for Customer to make continued use
of the Software; (b) replace or modify the Software to make it non-infringing;
or (c) terminate this Agreement, discontinue access to the Software and
Services, and refund the amount paid by Customer for the use of the Software
for the current Service Year.
8. Limitation of Liability. Except as provided in section 8 above, and to
the maximum extent permitted by applicable law, Rain Bird, its directors,
officers, agents, suppliers and licensors will not be liable to Customer (whether
in contract, tort (including negligence) or otherwise) (i) for more than the
amount Customer paid to Rain Bird for access to the applicable Software
for the current Service Year or (ii) for any indirect, incidental,
consequential, special, punitive, or exemplary damages, including without
limitation lost profits, lost business opportunities, loss of use of the
service offering, loss of goodwill, business interruption, loss of data, lost
savings, or other economic damage, arising out of this agreement or the use or
inability to use the software or documentation, even if Rain Bird had been
advised of the possibility of such damages. Rain Bird’s authorized distributors
shall have no liability of any kind under this Agreement.
9. Effective Date, Term and Termination. The term of this Agreement shall commence on
the go-live date of the Software by the Customer (“Effective Date”) until
either party gives written notice to terminate this Agreement or if Customer fails
to make necessary payment for continued use of the Software and Services.
10. Representations and Warranties. Each party represents and warrants that it
has the necessary and full right, power, authority and capability to enter into
this Agreement and to perform its obligations hereunder; that it owns or
controls the rights granted or licensed to the other party herein; that the
execution and performance of its obligations under this Agreement will not
violate any known rights of any third party, any contractual commitments or any
applicable federal, state and local law or regulation.
11. Exclusivity. Rain Bird will be the sole and exclusive
provider of the Software and Services for the term of this Agreement.
12. Notice. Any notices pursuant to this Agreement shall
be made in writing and delivered by mail or fax to:
6991 E. Southpoint Road
Tucson, AZ 85756
13. Assignment. This Agreement is non-assignable without the
consent of the other party, except that Rain Bird may without consent
assign: (i) its rights to receive payments; or (ii) the Agreement in connection
with any sale of or any other transaction involving the transfer of more than
fifty percent of its voting securities or assets.
14. Governing Law and Venue. This Agreement shall be governed by the laws
of the State of California. Any legal action or proceeding relating to this
Agreement shall be instituted only in any state or federal court in Los Angeles
15. Entire Agreement; Modifications. This Agreement contains the entire
understanding of the parties regarding the subject matter and can only be
modified by a subsequent written agreement executed by both parties.
16. Recovery of Litigation Costs. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this Agreement,
the prevailing party shall be entitled to recover its costs, including
reasonable attorneys’ fees.
17. Survival. Sections 2, 6, 8, 10, 11, 14 and 16 of this
Agreement shall survive any termination or expiration of this Agreement. If one or more of the provisions of this
Agreement for any reason shall be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement and this Agreement shall be
construed as if such invalid, illegal or unenforceable provisions had never been
contained in this Agreement.
18. Waiver. No waiver of any provision of this Agreement
or any attachment shall be effective unless it is in writing and signed by the
party against which it is sought to be enforced.
19. Force Majeure. Neither party will be deemed to be in default
hereunder, or will be liable to the other, for failure to perform any of its
obligations under this Agreement for any period and to the extent that such
failure results from any event or circumstance beyond that party’s reasonable
control, including acts or omissions of the other party or third parties,
natural disasters, riots, war, civil disorder, court orders, acts or
regulations of governmental bodies, labor disputes or failures or fluctuations
in electrical power, heat, light, air conditioning or telecommunications
equipment or lines, or other equipment failure.