1.
DEFINITIONS AND INTERPRETATION
(a)
“Consequential Loss or Damage” includes any and all damage whether to person, property or economic interests other than respecting Defective Services or Defective Goods.
(b)
“Customer’s Equipment” means all irrigation equipment to be supplied or installed including irrigation pipes, irrigation shut off valves and all other valves, pumps, drains, heads, batteries, and controllers.
(c)
“Defective Materials” means any irrigation equipment supplied by Raintech which is not or merchantable quality or fit for its purpose.
(d)
“Defective Services” means any labour component supplied by Raintech which was not of good and workmanlike quality.
(e)
Unless the contrary is expressly indicated, all singular terms within this contract shall be interpreted to include the plural, and vice-versa.
2.
LIMITATION OF LIABILITY, RELEASE AND EXCUSION OF CONSEQUENTIAL DAMAGES
2.1.
Subject to clause 2.3, Raintech Irrigation Ltd.’s liability to the Customer shall be limited to $1,000,000, and the Customer hereby agrees to release Raintech Irrigation Ltd., its directors, officers, employees, subcontractors, agents, successors, and assigns from any damages in excess of such limitation.
2.2.
Subject to clause 2.3, Raintech Irrigation Ltd. shall not be liable to the Customer for any Consequential Loss or Damage suffered, sustained or incurred by the Customer as a result of the provision of goods or service by Raintech Irrigation Ltd. to the Customer.
2.3.
Neither the limitation of Raintech Irrigation Ltd.’s liability specified in clause 2.1, nor the exclusion of Consequential Loss or Damage in clause 2.2, shall apply in respect of liability of Raintech Irrigation Ltd. arising from, or connected to, its, or its directors’, officers’, employees’, subcontractors’ or agents’, gross negligence or wilful misconduct.
(a)
“Consequential Loss or Damage” includes any and all damage whether to person, property or economic interests other than respecting Defective Services or Defective Goods.
3.
WARRANTY
3.1.
Clause 2.1 notwithstanding, but subject to the terms and conditions below, Raintech will, at its own cost and within a reasonable period of time, repair any Defective Services discovered within ten (10) calendar days of the completion of the related services.
3.2.
Clause 2.1 notwithstanding, but subject to the terms and conditions below, Raintech will repair or replace any Defective Materials within a reasonable period of time. Raintech will not charge the Customer for the cost of the replacement materials themselves but will be entitled to charge the Customer for any labour costs associated with said replacement or repair.
4.
CONDITIONS, LIMITATION PERIODS, AND EXCLUSIONS
4.1.
Clause 3.1 is void and of no force or effect if Defective Services are not reported to Raintech within 10 days of the completion of the related service;
4.2.
Clause 3.2 is void and of no force or effect if Defective Materials are not reported to Raintech within the associated manufacturer’s warranty period;
4.3.
Clauses 3.1 and 3.2 are void and of no force or effect if:
4.3.1.
any subsequent work is performed on the Customer’s Equipment by any company or individual not previously authorised by Raintech for that purpose;
4.3.2.
after the discovery of anything claimed to fall under clause 3.2, the Customer does not give notice of same with reasonable detail and backup to Raintech in writing, and verbally within 10 days of discovery;
4.3.3.
after the discovery of anything claimed to fall under clause 3.1, the Customer does not give notice of same with reasonable detail and backup to Raintech in writing, and verbally within 10 days of completion of the related service;
4.3.4.
the Customer fails to take reasonable steps to prevent loss or damage to the Customer’s Equipment and property resulting from an alleged defect. Customer must not affect any further repairs before Raintech has an opportunity to conduct an assessment to determine the cause and extent of repairs necessary;
4.3.5.
Raintech was unable to inspect the Customer’s Equipment during the Irrigation Season;
4.3.6.
anyone other than Raintech turns on the main irrigation shut-off valve after winterization;
or
4.3.7.
Raintech’s invoice[s] are not paid on time.
4.4.
For the sake of clarity, and without limiting the generality of any of the forgoing clauses, the following are examples of problems which will not be rectified by Raintech:
4.4.1.
weathering, normal wear and tear, deterioration, or deflection consistent with normal industry standards;
4.4.2.
normal shrinkage or expansion of materials
4.4.3.
any loss or damage not directly related to the labour or materials supplied by Raintech not having been of good and workmanlike quality. This includes damage resulting from the Customer’s operation of the Customer’s Equipment;
4.4.4.
the cost of any repairs or investigations by the Customers shall be for the customer’s account alone;
4.4.5.
damage caused due to a pre-existing fault in the Customer’s main irrigation shut-off valve;
4.4.6.
damage due to severe weather events, power spikes, short circuits, lightening strikes, or Acts of God;
4.4.7.
damage due to the improper installation, maintenance, replacement, or repairs of any component of the Customer’s Equipment performed by anyone other than Raintech
4.4.8.
damage following winterization where Raintech’s technician was unable to access the main irrigation shut-off valve or main irrigation drain;
4.4.9.
damages to heads, pipelines, or any other system components caused by the operation of any motor vehicles or other equipment;
4.4.10.
Damage resulting from poor draining, unstable or settling ground which exposes the system to unusual mechanical stresses;
4.4.11.
Damage resulting from any excavation or construction work performed without Raintech’s supervision on the site;
4.4.12.
Damage resulting from aeration or other landscaping or maintenance routines;
4.4.13.
Damage due to any modification, repair, replacement, or maintenance of the Customer’s Equipment by the Customer or by any third party other than Raintech, including but not limited to adjustment of heads, stripped gears, improper diffuser screw setting, or poor arc adjustment;
4.4.14.
Damage resulting from a lack of sprinkler coverage due to blockage of the heads by foliage, plant growth, or landscaping;
4.4.15.
Damage resulting from general maintenance on the Customer’s premises, including cutting of grass;
4.4.16.
Damage due to poor water conditions, including hard water, excessive iron content, sand, grit, foreign debris, water pressure, or water volume changes; and
4.4.17.
Damage caused by failure of batteries in irrigation controllers and sensors.
5.
ENTRY AND CONTROL
5.1.
It is agreed by the Customer that after a defect has been reported, Raintech and its agents and employees shall have an immediate and continuing right of access to the Customer’s premises to:
(a)
enable Raintech to determine if the alleged defect exists,
(b)
determine the repairs required to rectify the defect, and
(c)
make the repairs necessary to rectify the defect.
6.
IN CASE OF DISAGREEMENT
6.1.
In the event of disagreement as to whether clauses 3.1 or 3.2 have been engaged, the nature and extent of the repairs or replacements required, the adequacy of repairs or replacements made or the amount of loss or damage, no action shall be commenced by the Customer in any court. All such disputes shall be referred to a mediator/arbitrator appointed by the parties, or by the Court of Queen’s Bench of Alberta if the parties are unable to agree. The dispute shall be resolved by the mediator/arbitrator pursuant to the provisions of the Arbitration Act of Alberta.
6.2.
Raintech shall be entitled to reimbursement for its full solicitor and its own client indemnity costs with respect to such amounts incurred with respect to any claim adjudicated in favour of Raintech.