STANDARD TERMS FOR MASTER SERVICE AGREEMENT (“AGREEMENT”)
The Standard Terms for SWIIM Master Services Agreement (“Agreement”) is made between SWIIM System, Ltd. (SWIIM) and the Client (“Client”) identified on the front of the Master Service Contract for SWIIM Services (“MSA”), as filled out in the Client Information section of the first page. The parties, for good and valuable consideration, hereby agree to all of the terms and conditions of this Agreement.
Each MSA is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement” that consists of:
1) The MSA;
2) This Agreement;
3) Equipment Addendum (if so listed in the MSA); and/or
4) Appendix(ices) and/or addendum(a), as applicable.
The applicable attachment(s), appendix(ices), and addendum(a) are determined by the SWIIM service(s) purchased on the MSA. This offer by SWIIM is expressly conditioned on assent to the terms and conditions of this Agreement.
This Agreement was last updated on April 25, 2018.
By signing the MSA, each party agrees as follows:
1. INVOICES AND PAYMENT. SWIIM will invoice Client as outlined in the Payment and Pricing section for services performed. Client shall pay the down payment upon the Effective Date (Agreement execution), and then each successive invoice for recurring charges beginning on the Start Date, in full within thirty (30) days after its date. Invoiced amounts not paid when due shall bear interest at the rate of one and one-half percent (1½%) per month or the highest legal rate, whichever is less. SWIIM shall be entitled to withhold performance until all amounts are paid in full.
2. DURATION OF AGREEMENT. The duration of this Agreement shall be as stated herein as the “Initial Term” from the date listed as the “Start Date.” This Agreement shall automatically renew thereafter for additional one-year periods under the stated renewal rate unless either party notifies the other party of its intent not to renew this Agreement, no less than 60 days prior to the end of any given term.
3. SCHEDULES. The parties recognize and agree that times stated for performance of services are targets only and that many factors may delay performance. If a definite completion or delivery date is designated in the Additional Terms section of this Agreement, then completion or delivery shall be required to occur within a commercially reasonable time giving due consideration to the situation of the parties and the nature of the services involved. Each party will be excused either from delays in performing or from its failure to perform according to any schedule resulting from causes beyond its reasonable control, provided that it acts diligently to remedy the cause of such delay or failure. SWIIM shall have the right to use subcontractors in performing any or all of SWIIM’s obligations hereunder, provided that SWIIM remains responsible for any such subcontractor’s performance.
4. USE OF DATA OUTPUT. Client acknowledges that: (a) SWIIM will deliver data regarding farm operation, water use efficiency and water budget/usage in the form of computer-readable files (“Computer Files”) containing processed data; (b) the Computer Files are copyrighted subject matter; (c) the Computer Files do not constitute “work for hire” for Client by SWIIM or a “joint work” of the parties. SWIIM grants Client a nonexclusive and perpetual right and license to use and reproduce Computer Files, sublicense and to use computer software with which the Computer Files are compatible for their exclusive use. SWIIM shall not release any personal identifying information of Client without said Client’s consent and will use commercially reasonable methods to protect personal identifying information from release to unauthorized third parties through anonymizing collected data and through use of other similar industry-standard practices.
5. WARRANTY; INSURANCE.
a. Limited Warranty. SWIIM represents and warrants that services will be performed in accordance with the provisions of this Agreement and in a competent, workmanlike manner consistent with good professional practice. As Client’s sole remedy for any nonconformity with the foregoing warranty, SWIIM shall, promptly after being notified of any such nonconformity by Client, and at SWIIM’s sole expense: (i) re-perform any nonconforming services, or (ii) correct or replace any nonconforming data.
b. Insurance. SWIIM shall at all times carry full insurance coverage as required by law and as is considered adequate and responsible by industry standards.
6. LIMITATIONS ON LIABILITY.
a. Disclaimers of Warranty. The foregoing warranty shall not apply to the extent any loss or damage results from the acts or omissions of any third party for whom SWIIM is not responsible. Except as provided above in Section 5a, SWIIM makes no representation or warranty with respect to the subject matter of this Agreement, including without limitation, SWIIM’s ability to perform or its performance of its obligations or the results to be achieved, and DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, with respect to the subject matter of this Agreement.
b. Liability Limitation. In no event will SWIIM be liable for any indirect, special, consequential, or punitive damages of any kind or nature arising out of or in connection with this Agreement, including without limitation, loss of revenue or profits, failure to realize savings, loss of business opportunities or other benefits, loss of use, damage to real estate or tangible property, downtime costs, and claims by any third person, even if SWIIM has been advised of the possibility of such damages. SWIIM’S ENTIRE LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE FEES OR CHARGES INVOICED BY SWIIM AND PAID BY CLIENT FOR THE PARTICULAR NONCONFORMING SERVICES OR DATA GIVING RISE TO SUCH LIABILITY.
7. EARLY TERMINATION; BREACH. Either party may terminate this Agreement on ninety (90) days’ prior written notice to the other party. Upon this Agreement’s early termination or expiration as may be required by law SWIIM will discontinue performing services for Client and Client will pay to SWIIM all sums due to SWIIM as a result of services performed through the effective date of such early termination or expiration (prorated as appropriate). The parties agree that if Customer terminates this Agreement early (other than simply not renewing beyond the Initial Term as outlined herein), or if Customer breaches any of the terms of this Agreement, that SWIIM will incur damages that are difficult, if not impossible to ascertain at the time this Agreement is executed, and that Customer shall pay to SWIIM liquidated damages in the method and amount as listed in the section entitled “Early Termination Fee” without SWIIM having to prove actual damages. In addition to liquidated damages, SWIIM shall have the right to other legal remedies for which SWIIM can prove actual damages, such as, but not limited to, damage to equipment due to Client’s negligence. The parties agree that the liquidated damages as outlined in the above-referenced section are a reasonable estimate of the presumed actual damages that would be incurred by SWIIM upon Customer’s early termination or breach of this Agreement. The expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations set forth herein or therein which: (a) the parties have expressly agreed will survive any such expiration or termination (the parties hereby agree that Sections 4, 6 and 8(d) shall survive expiration or termination of this Agreement); or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination, such as Limitations on Liability.
8. GENERAL PROVISIONS.
a. Permission to Enter Property. During the course of this Agreement (and any renewals thereto), Client provides permission to SWIIM, its employees, agents and consultants permission to enter the properties that are subject to this Agreement to provide services as contemplated herein.
b. Information Provided By Client. During the course of this Agreement (and any renewals thereto), SWIIM may request from Client, field-specific information, including but not limited to: field location, irrigation schedules, crop data, planting and harvest information, in addition to the information SWIIM will be gathering on Client’s behalf. Should Client not provide this information, SWIIM will use its best efforts to augment missing information. Should Client refuse to provide such information that has been reasonably requested by SWIIM, SWIIM may provide more limited information to Client than contemplated in this Agreement, to which SWIIM will not be held liable.
c. Compliance with Laws. Each party shall fully and continuously comply with all the laws and regulations applicable generally to its performance under this Agreement, including all laws and regulations governing data collection, use, notice, and privacy.
d. Confidentiality of Terms. The parties acknowledge that the terms of this Agreement are SWIIM’s confidential information and that neither party shall disclose these terms except in confidence to its own employees and representatives on a need-to-know-basis. Either party may release the existence of this Agreement to the public (without mentioning specific business terms) without prior approval from the other party.
e. Governing Law, Venue and Mediation. In the event of any dispute between the parties arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorney fees and costs. This Agreement will be binding upon, and inure to the benefit of the parties’ respective heirs, assigns, successors in interest, personal representatives, and executors. This Agreement will be governed under the laws of the State of Colorado and venue will be proper in any Court in the State of Colorado. The parties agree that prior to initiating litigation regarding any dispute that the parties will first attempt to resolve the dispute in good faith by attending mediation. The parties shall mutually agree upon a mediator, however, the mediator must, at the time of mediation, be approved or deemed acceptable to a court in either California or Colorado to conduct mandatory mediation ordered by such court. Either party may choose to attend mediation by telephone.
f. Independent Contractors. The parties are independent contractors in all relationships and actions contemplated by this Agreement, and this Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship, or to authorize any party to enter into any commitment or agreement binding on the other party except as expressly stated herein.
g. Notices. Notices and other communications required hereunder shall be made in writing and shall be deemed effectively given once received by the other party. A notice address may be changed by giving notice in the manner set forth herein.
9. ENTIRE AGREEMENT. This Agreement, the MSA (including any active addendums, if applicable) is the entire agreement and understanding between the parties relating to the subject matter; is intended as the parties’ final, complete, and exclusive statement of their agreement, superseding all prior or contemporaneous agreements, representations, promises, and understandings, written or oral; and may be amended or modified only by a subsequent writing signed by authorized representatives of both parties, unless otherwise stated in this Agreement. Any such subsequent agreement in writing shall be incorporated into this Agreement and the MSA as an Addendum. The terms of this Agreement will control over any other agreement or conflicting terms, unless the conflicting terms are agreed to in writing in a subsequent agreement or are contained in the “Additional Terms” section of the MSA, in which case the terms contained in such subsequent agreement or the “Additional Terms” section will prevail.