CirrusPRO Software and Services End-User License Agreement

1. CirrusPRO Software and License

CirrusPRO Software can be purchased from Rain Bird in two ways: (i) a one-time purchase fee; or (ii) a recurring subscription fee. Additionally, other services, features, functionalities, and software can be purchased from Rain Bird based on a subscription fee, as offered from time to time through Rain Bird. All the foregoing is collectively referred to herein as “Software and Services.”

1.1 One Time Fee Purchase

Using the one-time fee purchase, Customer will be purchasing a Rain Bird device that is pre-loaded with the CirrusPRO software.

1.2 Subscription Plan

Under the subscription plan, Customers will be purchasing a Rain Bird device that is pre-loaded with the CirrusPRO Software and access to the CirrusPRO software using the device will be enabled upon staying current with the subscription fee.

1.3 License

Provided Customer remains in compliance with the terms of this Agreement and remains current with the fees owed for the Software and Services, Rain Bird grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable, license, during the term of this Agreement (i) to use the Software and Services solely in accordance with Rain Bird’s specifications, (ii) to use the Software and Services on a single computer and/or approved devices as authorized by Rain Bird. provided under Customer’s subscription plan.

Customer acknowledges that there are no implied licenses granted under this Agreement. Rain Bird reserves all rights that are not expressly granted. Customer may not use the CirrusPRO Software, or any other Rain Bird offered software or service, for any other purpose without Rain Bird’s prior written consent.

You activate CirrusPRO Software through the registration process provided by Rain Bird. You may not share your access credentials with any third party, and Customer agrees to keep the all access information secure. Access to the CirrusPRO Software, and other offered Rain Bird software and services may be revoked at any time by Rain Bird in the event of Customer’s non-compliance with this Agreement.

1.4 Additional Support and Software Compatible with CirrusPRO Software; Updates

Customer may purchase from Rain Bird through a subscription plan additional support services and software compatible with the CirrusPRO Software subject to the terms and conditions of this Agreement. Customer understands that Rain Bird may use a third party to provide and/or host the additional support and compatible software. To enable use of certain features of this additional support and compatible software, Customer may need to provide certain information, including personally identifiable information (“Customer Information”). Such Customer Information shall be treated in accordance with Rain Bird’s privacy notice found at https://www.rainbird.com/privacy.

Customer acknowledges that Rain Bird may update or modify the Software and Services from time to time and in its sole discretion (in each instance, an "Update") and may require Customer to obtain and use the most recent version of the Software and Services. Updates may adversely affect how any Legacy Technology may function with the Software and Services, or how the Software and Services operate generally. Customer is required to make any changes to the Software and Services that are required for integration as a result of such Update. Customer’s continued use of the Software and Services following an Update constitutes binding acceptance of the Update.

2. Non-Permitted Uses and Ownership

2.1    Customer shall not, directly, indirectly, alone, or with another party, attempt to access the Software and Services in a manner not permitted by Rain Bird under this Agreement. Such non-permitted purposes would include attempting to (i) copy (unless explicitly permitted by this Agreement), disassemble, reverse engineer, or decompile the Software and Services; (ii) modify, create derivative works based upon, or translate the Software and Services; (iii) license, sell, rent, lease, transfer, distribute, publish, grant any rights in or otherwise commercially exploit or make publicly available the Software and Services in any form to any other party; (iv) remove any proprietary notices from the Software and Services; (v) use the Software and Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates applicable law; (vi) combine or integrate the Software and Services with any software, technology, services, or materials not authorized by Rain Bird; (vii) use the Software and Services in any way that disables, overrides, or otherwise interferes with any Rain Bird-implemented communications or offerings; (viii) use the Software and Services in any way that circumvents required payments, or allows continued access to the Software and Services without required payment; and (ix) permit any third party to do or attempt to do any of the foregoing.

2.2    Rain Bird shall retain all right, title, and interest in and to the Software and Services and any associated software, patents, copyrights, trademarks, service marks, logos, and trade names (“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. Customer acknowledges that its 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.

2.3    Customer will use commercially reasonable efforts to safeguard the Software and Services (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Customer will promptly notify Rain Bird if Customer becomes aware of any infringement of any intellectual property rights in the Software and Services, and any misuse of or unauthorized access to the Software and Services, and will fully cooperate with Rain Bird, in any legal action taken by us to enforce Rain Bird’s intellectual property rights.

2.4    If Customer or any of Customer’s employees, contractors, and agents sends or transmits any communications or materials to Rain Bird by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software and Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), all such Feedback is and will be treated as confidential information of Rain Bird. Customer hereby assigns to Rain Bird on its behalf, and on behalf of its employees, contractors, and agents, all right, title, and interest in, and Rain Bird is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, without any compensation or attribution to Customer or any third party, although Rain Bird is not required to use any Feedback. Customer warrants that it has the right to make the assignment of this section 2.4.

2.5    Rain Bird shall have the right to audit the Customer’s use of the Software and Services to confirm compliance with the terms of this Agreement.

2.6    Customer shall comply with all applicable laws, regulations, and ordinances, in relation to Customer’s use of the Software and Services.

3. Government Use.

If Customer is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software and Services is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies (collectively Title 48 of the Code of Federal Regulations). The Software and Services is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software and Services by the Government shall be governed solely by the terms of this Agreement.

4. Data Ownership and Usage Rights

4.1 Customer Data

Customer shall retain all right, title, and interest in and to any data, information, content, or materials submitted, uploaded, transmitted, or otherwise provided by Customer or its authorized users through the Software and Services ("Customer Data").

4.2 License to Customer Data

Customer grants Rain Bird a non-exclusive, worldwide, royalty-free license during the term of this agreement to process Customer Data to:

a.     provide, operate, maintain, secure, and support the Software and Services;

b.     improve, enhance, and develop the Software and Services; and

c.     otherwise perform its obligations and exercise its rights under this Agreement and as described in the Rain Bird Privacy Notice.

4.3 Usage Data and De-Identified Data

Customer acknowledges that Rain Bird may collect information regarding the use, operation, performance, and configuration of the Software and Services, including telemetry, diagnostic information, usage statistics, device information, and similar data ("Usage Data").

To the extent Usage Data or Customer Data is aggregated, anonymized, or de-identified data, or processed to create derived data such that it does not identify Customer or any individual, such data shall not constitute Customer Data.

Rain Bird shall own all right, title, and interest in and to Usage Data this is aggregated, anonymized, or de-identified data or processed to create derived data such that it does not identify Customer or any individual. Rain Bird may use such data for any lawful business purpose, including:

• operating and supporting the Software and Services;
• product improvement and development;
• analytics and reporting;
• benchmarking;
• artificial intelligence and machine learning model development and training; and
• other commercial business purposes.

5. Personally Identifiable Information (PII) and Privacy

Rain Bird may collect and process Customer Data, including personal data, in connection with the Software and Services. Rain Bird's collection, use, disclosure, retention, and other processing of personal data is governed by the Rain Bird Privacy Notice, available at https://www.rainbird.com/privacy, which is incorporated into this Agreement by reference. Customer acknowledges that Rain Bird may update the Privacy Notice from time to time in accordance with its terms.

6. Customer’s Responsibility for End User Information

To access and use certain areas or features of the Software and Services, you may need to provide certain information for registration, access, or product/service purchases. Each registration is for a single account holder and its authorized users. Customer agrees to (a) provide accurate, current, and complete information, (b) maintain and promptly update, as necessary, its information, (c) be responsible for the acts or omissions of any third party who has authority to access or use the Software and Services on Customer’s behalf, and (d) immediately notify Rain Bird if Customer discovers or otherwise suspects any security breaches related to the Software and Services. If Customer provides information that is untrue, inaccurate, not current, or incomplete, Rain Bird may suspend and/or terminate Customer’s current or future use of the Software and Services.

Customer is responsible for obtaining all authorizations, consents, releases, and permissions for its end users (“Authorized Users”) necessary or desirable to provide Customer Information, to use the Software and Services to process and store Customer Information, and to receive the Software and Services. Customer and its Authorized Users will not submit any Customer Information or use the Software and 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 Customer 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 Customer Information. Customer shall transmit Customer Information by means of a secure network connection with Rain Bird. Customer shall be responsible for acquiring and maintaining at their own expense all equipment and services needed for such transmission unless otherwise agreed in writing with Rain Bird. Customer equipment and methods of transmission shall conform to Rain Bird specifications and requirements.

7. Information Security

Rain Bird stores Customer Information on servers of cloud services providers that specialize in data storage, including being compliant with applicable privacy laws. Rain Bird implements reasonable and appropriate measures designed to secure Customer Information from accidental loss and from unauthorized access, use, alteration, or disclosure. Our architecture is based on the CIA Triad (Confidentiality, Integrity and Availability). However, Rain Bird cannot guarantee that unauthorized threat actors will never be able to defeat those measures or use 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. The Customer is responsible for the security of the password and login identifier and for its use or misuse by its Authorized Users. Customer agrees to use a unique password for authentication. Customer 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.

8. Legacy Technology

Customer acknowledges that it may be operating products that are outdated from a security, technological, and/or hardware limitations standpoint (“Legacy Technology”). While Rain Bird attempts to make the products subject to this Agreement operable with a range of Legacy Technology, including addressing security gaps existing with Legacy Technology, it does not warrant operability and security and recommends that Customer replace its outdated products.

8.1 Hardware Limitations

"Hardware limitations" that may affect Cyber security include:

1. Incompatibility with certain types of hardware.
2. Performance issues or vulnerabilities that arise due to outdated or insufficient hardware specifications.
3. Limitations in the hardware's ability to support security features (e.g., encryption, authentication).

8.2 Security Gaps

"Security gap" due to hardware limitations, including:

1. Vulnerabilities in the software that allow unauthorized access to data.
2. Failure to implement security patches.
3. Design flaws or bugs that expose users to Cyber-attacks or data loss.

8.3 Customer Responsibility for Hardware

Customer is responsible for ensuring their hardware meets minimum system requirements, such as:

1. Using hardware that complies with the latest security specifications.
2. Ensuring that the hardware is up to date with the latest firmware and security patches.
3. Avoiding unsupported or outdated hardware configurations.

8.4 Hardware Limitation Disclaimer

Rain Bird shall not be liable for any security vulnerabilities or breaches that arise due to hardware limitations, including but not limited to:

1. Outdated or insufficient hardware specifications.
2. Hardware incompatibility with the Services and Software.
3. Security vulnerabilities within the hardware itself, such as firmware exploits or physical access vulnerabilities. Customer is responsible for maintaining hardware that meets the established minimum security and performance specifications.

9. Public MAC Address Exposure

Customer acknowledges that a MAC address contains six bytes of information and is considered personal information subject to certain laws and regulations. Customer understands that products covered by this Agreement require WiFi or Bluetooth wireless broadcast exposure of the last three bytes of a MAC address. These last three bytes are unique to the specific device, whereas the first three bytes identify the manufacturer. You further understand that when a MAC address is combined with other information, it can potentially be used to track or identify a specific product and, by extension, its user.

Customer agrees to assume the risk for this MAC address broadcast, and Rain Bird shall have no liability for this MAC address broadcast.

Rain Bird stores MAC addresses in accordance with this Agreement and its Privacy Notice

10. Copyright, Trademark, the DMCA, and Takedowns

Rain Bird respects the Intellectual Property of others and requires that users of our Software and Services do the same. Rain Bird therefore reserves the right to remove from use with the Software and Services any of Customer’s information and content that Rain Bird believes at its sole discretion infringes the Intellectual Property or other rights of others. This right includes deleting such information and content from all storage media associated with the Software and Services. Rain Bird also reserves the right to terminate Customer’s access to the Software and Services if Customer’s information and content is removed by Rain Bird for use with the Software and Services on a repeated basis.

 

If you believe that anything in our Software and Services infringes a copyright or a trademark that you own or control, you may notify Rain Bird by sending an email to [email protected]. Your notification must include:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work or trademark claimed to have been infringed, or, if multiple copyrighted works or trademarks at a single online site are covered by a single notification, a representative list of such works and trademarks at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Rain Bird to locate the material.
4. Information reasonably sufficient to permit Rain Bird to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you submit a false notification, you may be liable to Rain Bird for costs and damages.

If Rain Bird removes any of Customer’s information or content under this section, Rain Bird will notify you via email. If you believe your information or content was wrongly removed, you can send a counter notification to Rain Bird via email to [email protected]. The contents of a counter notification must include:

1. A physical or electronic signature of the Rain Bird subscriber.
2. Identification of the information or content removed or to which access was disabled and the location at which the information or content appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the Customer has a good faith belief that the information or content was removed or disabled because of mistake or misidentification of the information or content.
4. The Customer’s name, address, and telephone number, and a statement that the Customer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Customer’s address is outside of the United States, for any judicial district in which Rain Bird may be found, and that the Rain Bird Customer will accept service of process from the person who provided notification or an agent of such person.

11. Financial Terms

11.1    Rain Bird shall set the fees for the Software and Services, including access to improvements and enhancements to the Software and Services as such become available, provided Customer is a current subscriber of the Software and Services.

11.2    The fees may change at the discretion of Rain Bird, but for a current Customer, such change will not take effect until the next renewal.

11.3    Customer is responsible for updating tax exemption certificates and other related Customer Information. Delays in remaining current as a customer may cause suspension of access to the Software and Services.

11.4    The fees do 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, Customer also will be charged the amount for such collected Taxes, and Customer will pay that amount to Rain Bird unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority to Rain Bird.

11.5    Except as expressly set forth herein or as required by applicable law, Rain Bird does not provide refunds or credits for any fees or charges once paid. Notwithstanding the foregoing, Rain Bird reserves the right, in its sole discretion, to provide a refund, credit, or other accommodation in exceptional circumstances. No such accommodation shall constitute a waiver of this policy.

11.6    Customers subject to the subscription service shall have their subscriptions automatically renewed for successive periods unless terminated by either party prior to the end of the then-current term.

12. Development of Intellectual Property

Nothing in this Agreement shall prohibit Rain Bird from developing and pursuing Intellectual Property, including Intellectual Property related to the Software and Services, and any improvements, modifications, and/or derivatives thereof.

13. Marketing

Except as provided herein, Customer shall not use Rain Bird Intellectual Property, including Rain Bird logos or trademarks, without Rain Bird’s prior written consent.

14. Publicity

Without Rain Bird’s prior written consent, Customer may not make any statement, press release, or other public communication regarding this Agreement or the use of the Software and Services.

15. LIMITED WARRANTY

RAIN BIRD REPRESENTS AND WARRANTS THAT IT IS THE SOLE AND EXCLUSIVE OWNER OF ALL RIGHT, TITLE, AND INTEREST IN AND TO THE SOFTWARE AND SERVICES OR THAT IT HAS THE RIGHT TO PROVIDE SUCH SOFTWARE AND SERVICES (INCLUDING THE RIGHT TO SUE FOR AND COLLECT DAMAGES FOR ALL PAST INFRINGEMENT ARISING FROM SUCH), THAT IT HAS THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT, TO GRANT THE RIGHTS CONVEYED HEREIN, AND TO BIND ITSELF TO THE TERMS OF THIS AGREEMENT.

RAIN BIRD WARRANTS THAT THE SOFTWARE AND SERVICES WILL PERFORM SUBSTANTIALLY IN CONFORMANCE WITH THE DOCUMENTATION REGARDING THE SOFTWARE AND SERVICES. RAIN BIRD DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, ESPECIALLY WHEN USING LEGACY TECHNOLOGY, OR THAT THE USE OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE FOREGOING WARRANTY APPLIES ONLY TO FAILURES IN OPERATION OF THE SOFTWARE AND SERVICES 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 AND SERVICES THAT IS OTHERWISE IN VIOLATION OF THIS AGREEMENT OR OTHER THAN IN ACCORDANCE WITH THE DOCUMENTATION FOR THE SOFTWARE AND SERVICES; OR (III) FAILURES THAT ARE CAUSED BY CUSTOMER’S SOFTWARE OR HARDWARE PRODUCTS, INCLUDING THE USE OF LEGACY TECHNOLOGY.

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 AND SERVICES 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 AND SERVICES, RAIN BIRD WILL REFUND THE FEES PAID BY THE CUSTOMER FOR THE CURRENT TERM.

EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE RAIN BIRD SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. NEITHER RAIN BIRD NOR ITS AFFILIATES MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY PARTICULAR RESULTS WILL BE ACHIEVED, OR NONINFRINGEMENT. RAIN BIRD EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, TO THE EXTENT ALLOWED BY APPLICABLE LAW.

FURTHER, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, RAIN BIRD MAKES NO WARRANTY OR GUARANTEE THAT ANY OF THE SOFTWARE AND SERVICES WILL OPERATE TIMELY OR UNINTERRUPTED, THAT THE SOFTWARE AND SERVICES ARE FREE FROM DEFECTS, THAT THE SOFTWARE AND SERVICES ARE DESIGNED TO MEET CUSTOMER’S REQUIREMENTS, OR THAT ANY ERRORS IN THE SOFTWARE AND SERVICES WILL BE CORRECTED. CUSTOMER’S USE OF THE SOFTWARE AND SERVICES IS AT CUSTOMER’S SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGE THAT MAY ARISE FROM SUCH USE.

16. LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY LAW, RAIN BIRD OR ANY OF ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVERTISERS, LICENSORS, SHAREHOLDERS, PARTNERS, AND DISTRIBUTORS, IN NO EVENT AND UNDER NO LEGAL THEORY—WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, WARRANTY, PRODUCTS LIABILITY, OR OTHERWISE—SHALL BE LIABLE FOR ANY DAMAGES, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF THE SOFTWARE AND SERVICES, OR ANY INABILITY TO USE THE SOFTWARE AND SERVICES (INCLUDING WITHOUT LIMITATION LOSS TO PERSONAL OR REAL PROPERTY, LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, GOODWILL, BUSINESS INTERRUPTION, FAILURE, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR MALFUNCTION OF ANY COMPUTER OR ELECTRONIC SYSTEM, OR ANY OTHER PERSONAL AND COMMERCIAL DAMAGES OR LOSSES), OR ANY DAMAGES CAUSED TO CUSTOMER OR THIRD PARTY SYSTEMS, OR PROPERTY RELATING TO THE USE OF THE SOFTWARE AND SERVICES, EVEN IF RAIN BIRD OR ANY OF ITS AFFILIATES OR AUTHORIZED DISTRIBUTORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN THE EVENT THAT THE FOREGOING LIMITATION IS NOT ENFORCEABLE WITHIN ANY APPLICABLE JURISDICTION, IN NO EVENT SHALL RAIN BIRD’S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT FOR ANY DAMAGES EXCEED THE GREATER OF: (A) THE AMOUNT CUSTOMER PAID TO RAIN BIRD IN CONNECTION WITH THE THEN-CURRENT SUBSCRIPTION; OR (B) THE AMOUNT OF FIFTY DOLLARS ($50.00 USD). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY GRANTED HEREIN FAILS ITS ESSENTIAL PURPOSE AND THE FOREGOING SHALL CONSTITUTE RAIN BIRD’S SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF.

REGARDLESS OF THE FORUM, RAIN BIRD AND CUSTOMER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

17. Indemnification

17.1 Rain Bird Indemnification

Rain Bird will indemnify and hold Customer harmless from any third party claim brought against Customer that the Software and/or Services, as provided by Rain Bird to Customer under this Agreement and used within the scope of this Agreement, as authorized, is alleged to infringe or misappropriate any patent, copyright, trademark, trade secret, or other Intellectual Property rights of a third party, provided: (i) use of the Software and Services by Customer is in conformity with the Agreement and related documentation; (ii) the infringement is not caused by modification or alteration of the Software, Services, and/or related documentation; and/or (iii) the infringement was not caused by a combination or use of the Software and/or Services with products not supplied by Rain Bird and/or intended for use with the Software and/or Services. 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 cooperation, 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 Software and/or Services become, or in Rain Bird’s opinion will likely become, the subject of a claim alleging infringement or misappropriation of a patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, 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 and Services; (b) replace or modify the Software and Services 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 and Services for the current year.

17.2 Customer Indemnification

Customer will indemnify and hold Rain Bird and its officers, directors, employees, agents, affiliates, successors, and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to: (i) Customer’s, or its Authorized User’s, use or misuse of the Software and Services and/or any Rain Bird Intellectual Property; (ii) Customer’s breach of this Agreement; (iii) Customer’s use of the Software and Services, where such is not in conformity with the Agreement and related documentation; (iv) any infringement claim that is caused by modification or alteration of the Software, Services, and/or related documentation; and/or (v) any infringement claim caused by a combination or use of the Software and/or Services with products not supplied by Rain Bird and/or intended for use with the Software and/or Services. Customer’s indemnification obligations are contingent upon Rain Bird: (i) promptly notifying Customer in writing of the claim; (ii) granting Customer sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Customer with reasonable cooperation, assistance, information, and authority required for the defense and settlement of the claim. This section states Customer’s entire liability (and shall be Rain Bird’s sole and exclusive remedy) with respect to Rain Bird’s indemnification.

18. Effective Date, Term, Termination, and Suspension

The term of this Agreement shall commence on the go-live date of the Software and Services 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. Customer may have additional rights upon termination in Rain Bird’s Privacy Notice (https://www.rainbird.com/privacy).

Rain Bird shall have the express right to immediately suspend access to the Software and Services or terminate this Agreement and any licenses granted herein, for non-payment, security concerns, or breach until such issue is resolved to the satisfaction of Rain Bird.

Upon termination of this Agreement for any reason all licenses and rights granted to Customer under this Agreement will also terminate and Customer must cease using the Software and Services and return all Rain Bird devices, equipment, and systems. Any terms that by their nature are intended to continue beyond the termination or expiration of this Agreement will survive termination. Termination will not limit any of Rain Bird’s rights or remedies at law or in equity.

19. Exclusivity

Rain Bird will be the sole and exclusive provider of the Software and Services for the term of this Agreement.

20. Notice

Any notices pursuant to this Agreement shall be made in writing and delivered to Rain Bird using the email address [email protected].

21. Export Controls

Customer must comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Customer must not export, or allow the export or re-export of the Software and Services in violation of any such restrictions, laws or regulations. By downloading or using the Software and Services, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.

22. Assignment

This Agreement is non-assignable without the consent of the other party, except that Rain Bird may assign without consent: (i) its rights to receive payments; or (ii) the Agreement in connection with any sale of substantially all its assets pertaining to the Software and Services.

23. Entire Agreement

This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter of this Agreement. The Parties further agree that Rain Bird, at its sole discretion, may make changes to this Agreement at any time. Rain Bird will post the current version of this Agreement online. Customer is advised to review this Agreement online periodically for any changes. Changes to this Agreement are effective when they are posted online. Customer’s continued use of the Software and Services following the posting of changes constitutes Customer’s acceptance of such changes.

24. Amendments

Rain Bird may, at its discretion, supplement, modify, or amend this Agreement and will notify Customer of any such supplementation, modification, or amendment. No other supplement, modification, or amendment of this Agreement will be binding, unless approved in writing by Rain Bird.

25. Independent Contractors

The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

26. No Third-party Beneficiaries

Other than as expressly set forth herein, no person or entity not a Party to this Agreement will be a third-party beneficiary of this Agreement.

27. Dispute Resolution

In the event the Parties are unable to resolve any dispute related in any way to the subject matter of this Agreement amicably, Customer shall proceed under the appropriate option below of this section.

1. For a Customer that is (1) an individual that is a United States citizen and a United States resident or (2) any type of entity that is organized or incorporated under laws of any state or territory of the United States, the Parties agree (a) that this Agreement shall be governed by and construed according to the laws of the State of Arizona, without reference to its conflict of law provisions, (b) that all lawsuits shall be brought only in the state or federal courts located in the City of Phoenix, Arizona (c) to submit to the personal and exclusive jurisdiction of the state and federal courts located in the City of Phoenix, Arizona, and (d) that the prevailing party shall be entitled to its fees, including reasonable attorney fees, from the other party in connection with the court proceedings.
2. For all other Customers, the Parties agree that (a) this Agreement, including this arbitration clause, shall be governed by and construed according to the laws of the State of Arizona, without reference to its conflict of law provisions, (b) all claims shall only be settled by arbitration in accordance with the Rules of the American Arbitration Association, (c) the arbitral tribunal shall be composed of three (3) arbitrators, (d) the place of arbitration shall be in the City of Phoenix, Arizona, (e) the proceedings shall be conducted in the English language, (f) the prevailing party in the arbitration shall be entitled to its fees, including reasonable attorney fees, from the other party in connection with the arbitration, and (g) the decision of the arbitration shall be binding and enforceable upon the Parties in accordance with the Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York 1958).
3. Notwithstanding the foregoing, the Parties agree that Rain Bird, at its sole discretion, may select to proceed in accordance with either section 27(a) or 27(b)
4. The Parties hereto agree that any breach of this Agreement pertaining to Rain Bird’s intellectual property and corresponding license to such under this Agreement would cause irreparable harm to Rain Bird and that Rain Bird is entitled to injunction relief in addition to all other appropriate relief.
5. All disputes under this Agreement must be raised within one year of the dispute accruing; otherwise, such dispute is waived forever.

28. Waiver

The failure of a Party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

29. Severability

If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of this Agreement will continue in effect.

30. Force Majeure

Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of such Party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.

31. Headings

The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.

32. Survival

Sections 2, 4, 5, 7, 9, 12-17, 20, 22, 23, and 25-33 of this Agreement shall survive any termination or expiration of this Agreement.

33. Communication Opt-In

By checking the box of a separate pop-up window during setup 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 use the Unsubscribe link found in the communication or by following the process outlined in our Privacy Notice (https://ww.rainbird.com/privacy). If you opt out of email communications, you will not receive email notification of any changes to this Agreement.