UNDER THE RAIN BIRD DATA PLAN – GSP IQ AGREEMENT, THE CLIENT AGREES TO THE FOLLOWING:
System Maintenance
The client is to keep the Data Plan- GSP Plans in good condition.
Term of the Agreement
36 months, unless otherwise stated on Page 1 of this Agreement, and starting upon Commencement date.
Modification
The Agreement sets forth all of the agreements of Rain Bird Australia and the client for the Data Plan- GSP Plan use. There is no other agreement. Any change in this Agreementmust be in writing and signed by the subscriber and Rain Bird Australia.
Repair
Repair shall be completed by Rain Bird, so Equipment is in good working order.
Customer Obligations
The Customer must provide Rain Bird with full and safe access to the Equipment for the purposes of performing Services. The Customer must at the Equipment Location, by telephone, email, or any other manner requested by Rain Bird, provide at no charge to Rain Bird all information, facilities and services reasonably required to perform Equipment Services The Customer shall maintain records of Equipment use and provide Rain Bird with access to such records, upon receipt of reasonable notice from Rain Bird. The records are only to be used by Rain Bird to assist with the performance of Services. The Customer shall use the Equipment in the manner for which it was intended, in accordance with all applicable manuals and instructions, and incompliance with all applicable laws and regulations.
Limitation of Liability
The Customer acknowledges and agrees that Rain Bird shall not be responsible for any damages that the Customer may incur from delayed shipment or Equipment Service or use, whether the liability is asserted in contract, tort (including gross negligence and strict product liability), and warranty or otherwise. In no event shall Rain Bird be liable for any indirect, incidental, consequential or special damages of any kind (including without limitation loss of profits or loss of use), whether or not Rain Bird shall be or should be aware of the possibility of such potential loss or damage. This section shall survive expiration or termination of this Agreement.
Default by the Customer
Any of the following events or conditions shall constitute an event of default by the Customer under this Agreement:
(a) the Customer does not pay debts as they become due;
(b) the Customer becomes insolvent, is liquidated or dissolved, stops doing business or assigns its rights or property for the benefit of creditors or a custodian, trustee, receiver or similar person for the Customer’s properties or businesses is appointed;
(c) a petition is filed by or against the Customer;
(d) the Customer violates any other term of this Agreement or any guarantee, and fails to correct such violation within ten (10) days after written notice from Rain Bird;
(e) the Customer consolidates with or merges with or into any entity, or sells or otherwise transfers a majority of its assets or stock to any entity, or incurs a substantial amount of indebtedness other than in the ordinary course of its business, unless in each case and before the event in question, the Customer’s obligations are assumed or guaranteed in a manner satisfactory to Rain Bird, in its sole and absolute discretion;
(f) (for individuals) the Customer or any guarantor dies or a guardian is appointed for the Customer or the guarantor.
Termination
Termination of this Agreement shall occur on the Termination date in the Schedule. In the event that a party to this agreement breaches any material obligations, the other party may terminate this Agreement after providing thirty (30) days written notice, should the breach not be cured within thirty (30) days. Either party may terminate this Agreement without cause after providing
ninety (90) days written notice to the other party.
Upon Termination of this Agreement:
(a) The Customer must pay all Service Fees and invoices outstanding under this Agreement
(b) If early termination occurred and the previous Service Fee invoice period does not extend to the early termination date,
the Customer agrees a pro-rata payment based on calendar days shall be paid until the end of year 1 of the contract at a minimum;
(c) The Customer must return all Loan Equipment by termination date and pursuant
Events beyond Rain Bird’s control
Rain Bird shall not be responsible or liable for any failure to perform if such failure is caused by acts of God, acts of government, strikes or labour disputes, failures of transportation, fire or flood or other casualty, failures of subcontractors or suppliers, or any cause or causes that are beyond its reasonable control.
