IQ Cloud Software as a Service Agreement of Rain Bird Corporation
You must agree to the Terms of Service
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.
Software and Services. 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. You understand
that Rain Bird may use a third party to host the Software and Services, or portions thereof. To assist us
in the delivery of the Software and Services, you agree to provide us with certain information requested by
us relating to the Customer.
Use Rights and License to Intellectual Property.
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.
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.
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.
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 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.
Customer’s Responsibility for End User Information. Customer is responsible for
obtaining all authorizations, consents, releases, and permissions for its end users
(“Authorized Users”) necessary or desirable to enter personal information, to use the
Services to process and store personal information and to receive the Services.
Customer and its Authorized Users will not submit any personal information or use the
Services in any way that infringes, misappropriates, or violates any trademark,
copyright, patent, trade secret, publicity, privacy or other right of any third party
or violates any applicable local, state or federal laws, statutes, ordinances, rules
or regulations or any judicial or administrative orders. Rain Bird shall not be liable
for the accuracy, completeness or authenticity of personal information furnished by
Customer or any other third party, and shall have no obligation or responsibility to
audit, check or verify the same with respect to such personal information. Customer
shall transmit personal information by means of a secure network connection with Rain
Bird. Customer shall be responsible for acquiring at its own expense all equipment
needed for such transmission unless otherwise agreed in writing by the parties.
Customer equipment shall conform to Rain Bird specifications and requirements.
Customer shall bear all costs associated with the method of transmission used,
including without limitation, line rentals, installation charges, required deposits,
long-distance charges, and/or related hardware, software and internet connectivity
costs. Any transmission method used must conform to Rain Bird’s specifications and
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 information.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Exclusivity. Rain Bird will be the sole and exclusive provider of the Software and Services for the term of this Agreement.
Notice. Any notices pursuant to this Agreement shall be made in writing and delivered by mail or fax
Rain Bird Corporation
Attn: Customer Service
6991 E. Southpoint Road
Tucson, AZ 85756
Fax: (520) 741-6117
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.
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 County, California.
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.
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.
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.
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.
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
Communication Opt In. By checking the following box and providing your contact information, you consent to receive
[emails, updates, and other communications] related to [Rain Bird’s products and services]. If at any time you wish to opt out
of future communications please request so by emailing email@example.com