EQUIPMENT ADDENDUM
If the box entitled “Equipment Addendum” in the “Addendums to this Agreement” section of the Master Service Contract (MSA) for SWIIM is checked or marked, Client has selected to have SWIIM acquire and install certain equipment as referred to in the Master Service Contract for SWIIM (“Agreement”) as a part of Client’s package. This Equipment Addendum (the “Equipment Addendum”) is included and is made a part of the MSA. In addition to the MSA, Client also agrees to the specific terms outlined in this Equipment Addendum.
This Equipment Addendum was last updated on April 25, 2018.
1. AGREEMENT AND TERM. SWIIM will provide to Client the monitoring and transmission equipment as outlined in this Addendum and the Agreement. The term of this Equipment Addendum will be outlined on the face of the Agreement and will parallel both the Initial Term and any Renewal Terms (if applicable).
2. USE & REPAIR. SWIIM, on behalf of Client, shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment. During the term, SWIIM shall keep the Equipment in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required to keep the Equipment in good mechanical working order.
3. WARRANTY & LOSS. The same warranty disclaimers apply for this Equipment Addendum as stated in the Agreement except that SWIIM warrants that it has the right to the equipment, as provided in this Equipment Addendum. Client hereby agrees to use all reasonable methods to assure the protection of the Equipment. SWIIM assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause whatsoever, unless such damage is a result of Client’s negligent actions or Client’s negligent failure to act, in which case, Client shall be liable to SWIIM for the repair or replacement of the Equipment. No loss or damage to the Equipment (or downtime to repair) or any part thereof shall impair any obligation of Client under this Equipment Addendum, which shall continue in full force and effect through the term of the Equipment Addendum.
4. EQUIPMENT REMOVAL. Upon the expiration or earlier termination of this Equipment Addendum, Client shall return the Equipment to SWIIM in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Equipment at Client’s expense to such place as SWIIM shall specify within the city or county in which the same was delivered to Client. For fixed in-field equipment, SWIIM will remove at its expense from contracted sites within 30 days of termination of the Agreement. If Client breaches the Agreement or otherwise fails to pay any amounts due pursuant to the Agreement after 10 days’ notice of such delinquency from SWIIM to Client, then SWIIM may take possession of the Equipment, without demand or notice, wherever the same may be located, without any court order or other process of law. Client hereby waives any and all damages occasioned by such taking of possession.
5. EQUIPMENT OWNERSHIP. The parties agree that unless otherwise stated herein, all of the property and equipment deployed by SWIIM and/or its affiliates are the property of SWIIM (or its respective affiliate).
6. GRANT OF EASEMENT. If needed under the terms of this Agreement (for SWIIM monitoring and equipment management services), Client hereby grants to SWIIM during the term (and any extensions thereof) an easement on and across the properties as more fully-described herein. The easement shall allow SWIIM to place SWIIM monitoring equipment on the Client’s property and the easement, rights, and privileges granted herein are exclusive. Client covenants during the term (and any extensions thereof) not to convey any other easement or conflicting rights within the area covered by this grant.
a. Client’s Rights Related to Easement. Client retains, reserves, and shall continue to enjoy the use of the surface of the land subject to this easement for any and all purposes that do not interfere with or prevent the use by SWIIM of the easement. Client’s retained rights include, but are not limited to, the right to build and use the surface of the easement for drainage ditches and private streets, roads, driveways, alleys, walks, gardens, lawns, planting or parking areas, and other like uses. Client further reserves the right to dedicate all or any part of the property affected by this easement to any city for use as a public street, road, or alley, if the dedication can be accomplished without extinguishing or otherwise interfering with the rights of SWIIM in the easement. If the Client or any of Client’s successors or assigns dedicates all or any part of the property affected by this easement, SWIIM and its successors and assigns shall execute all instruments that may be necessary or appropriate to effectuate the dedications. Client shall take all reasonable steps to ensure that Client or Client’s agents do not damage SWIIM’s property while on the related properties.
b. SWIIM’s Rights Related to Easement. SWIIM shall have the duty to repair and maintain the property subject to the easement (only the property that is related to the Equipment’s functionality) and shall at all times keep the easement property free and open for the benefit of Client and any other concurrent user. SWIIM shall at all times act so as to safeguard Client’s property. SWIIM shall have the right to keep access to the easement open by removing vegetation and by cutting or trimming trees or vegetation that may encroach on the easement property. SWIIM shall have the right to cut and trim trees or shrubbery that may encroach on the easement property. SWIIM shall dispose of all cuttings and trimmings by hauling them away from the premises. SWIIM hereby holds Client harmless in the event SWIIM’s property is damaged, lost or stolen when it was on the property, so long as such damage is not the result of actions by Client.
7. LIENS AND BANKRUPTCY. Client shall keep the Equipment free and clear of all levies, liens and encumbrances. However, Client shall not be required to pay or discharge any such tax or assessment so long as it shall, in good faith and by appropriate legal proceedings, contest the validity thereof in any reasonable manner which will not affect or endanger the title and interest of SWIIM to the Equipment; provided, Client shall reimburse SWIIM for any damages or expenses resulting from such failure to pay or discharge. Neither this Equipment Addendum nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Client, or if the Client is adjudged insolvent, or if Client makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on the Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Client is a party with authority to take possession or control of the Equipment, SWIIM shall have and may exercise any one or more of the remedies under the Agreement, including but not limited to, the provision in Section 4 of this Equipment Addendum; and this Equipment Addendum shall, at the option of the SWIIM, without notice, immediately terminate and shall not be treated as an asset of Client. At no time whatsoever, is the Equipment to be deemed property of the Client.
8. REGIONAL MOVEMENT OF EQUIPMENT. Should Client require movement of fixed field equipment during the term of this Contract due to change in field lease or other business arrangement that requires changing of fields, so long as the equipment utilized on the new field is the same class and caliber, SWIIM will charge Client for this move on a case by case basis, not to exceed $1,000 per field.
9. NO ASSIGNMENT. Client shall not assign this Equipment Addendum without the prior written consent of SWIIM.
10. ENFORCEABILITY. The invalidity or unenforceability of any provision in the Agreement shall not cause any other provision to be invalid or unenforceable.
SITE SURVEY & RELATED ASSUMPTIONS
SWIIM makes certain assumptions when scoping multiple fields and relies on information provided by Client, Client’s farm management team and SWIIM’s own finding on site surveys conducted by SWIIM throughout the pre-proposal process. Realizing that the nature of the services provided by SWIIM are designed to allow for flexibility and potential modification to meet the Client’s overall needs, there are certain assumptions that are made when SWIIM contracts with its Clients, as listed further below.
1. Pre-Site Preparation & Reporting Process. Upon contract execution, generally the initial months are devoted to site scoping, water use baselining, equipment configuration and calibration activities. During this period, reports are not yet generally available for the site(s) that are to be monitored. Once the equipment is tested and verified, SWIIM begins monitoring flow, consumption and related elements of the crop-water budget for each targeted field, and such reports are available on iteration as defined by the Client.
2. Equipment Assumptions. Any material changes to fields, crops, infrastructure (including points of measurements, measurement type – pipe versus open flow and number of measured locations), data required (consumptive use/ET data) and other similar factors could adjust the price as quoted in this Agreement.
3. Equipment Calibration & Guarantees. SWIIM precisely measures its data through equipment it installs on behalf of its clients. On many occasions, to reduce cost, SWIIM at least partially integrates with already-established equipment in-field, some of which may not be installed as per the manufacturer’s specifications. For the already-installed equipment, SWIIM will use its best efforts to calibrate such legacy equipment, but cannot fully validate the level of accuracy, often times, without moving the equipment and/or adjusting its calibration as per manufacturer’s recommendations. As such, SWIIM cannot guarantee accuracy on already-established equipment if modifications are suggested and the Client chooses not to meet such requirements and the accuracy of such data will be impacted. SWIIM will, however, validate that equipment it installs on its own and will be calibrated within manufacturer’s specifications.
4. Flow Point Disclosure & Location. By default (unless otherwise stated in the contract) SWIIM’s per-acre rate assumes that it will integrate telemetry with already-established sensors/flow meters where they are already installed and will install new sensors/flow meters where ones do not already exist. SWIIM’s default position (unless otherwise stated in the Agreement) is to measure every identified entry point for flow that exists on a field to obtain an accurate water balance. The Client must share flow path location information transparently with SWIIM (SWIIM will consider such data confidential and will not release such data to third parties without Client’s written consent). Should flow paths not be obvious to SWIIM during its site survey, Client is obligated to bring additional flow paths to SWIIM’s attention; otherwise an additional fee may apply for SWIIM to further instrument additional flow paths not originally identified in the site survey.
5. District Permission For Access. SWIIM will, by default, measure surface water (pipe and/or open-channel) and groundwater (generally pipe) as separate flow paths when calculating the water balance unless otherwise stated in this Agreement. For water sources not under the direct control of the Client (for example – district delivered water that maintains a flow meter for reporting and is owned by the said district), SWIIM must often times acquire permission to access the sensor/flow meter and augment it with telemetry. SWIIM assumes in this proposal that it will receive permission from the district when pricing its services. Should the district restrict access to SWIIM as it relates to their sensor/flow meter, there may be an additional charge for SWIIM to install an in-parallel, duplicative meter down-pipe of the district’s, in the grower’s easement. Generally, SWIIM is able to acquire permission of the district and requests the Client to assist in this process as needed.
6. Flow Meter Types. Where additional equipment is required, specifically for pipe flow measurement, SWIIM retains two options – the first is a “flange meter” which is directly installed into the pipe by cutting out a segment and inserting the unit into cut pipe section. This is a more permanent installation, and generally provides a bit more accurate flow measurement (as per manufacturers’ specifications). The second option is an “insertion type” meter that requires a hole to be drilled into the pipe location and a meter installed. This option is less intrusive, but a bit less accurate (as per manufacturers’ specifications). By default, SWIIM assumes that it will use one of the two methods, at SWIIM’s option depending on the target location, unless otherwise stated in this Agreement as to which type of unit will be utilized specifically.
7. Client’s Rights Upon Material Scope Change. Should a potential material adjustment be made because of any of the above-referenced contingencies, SWIIM will notify Client upon realization of such changes. Should this occur, Client may choose to amend the Agreement to take all/some of such additional costs into account at Client’s sole option.