SMART FARM ASSISANT – TERMS OF USE

 

These Terms of Use (“Terms”) are the terms and conditions on the basis of which Porphyrio NV (“Porphyrio”) will make available its product the “Smart Farm Assistant” to Users. Capitalized terms herein have the meanings as set forth in these Terms.

1.     Purpose of these Terms – Agreement

This is a legally binding agreement (“Agreement”) between the User and Porphyrio. Acceptance of and compliance with the Terms is a pre-condition for access to and use of the Smart Farm Assistant. 

Before being granted access to the Smart Farm Assistant, Users must have obtained the right to do so, either through an order with Porphyrio or through an order with a Commercial Intermediary placed by the User itself or by a customer to which the User is connected.

These Terms, together with any other specific terms agreed to by Porphyrio, are the only terms governing the use of the Smart Farm Assistant by the User vis-à-vis PORPHYRIO and the rights and duties applicable to Data. The applicability of any other conditions (including general conditions or purchase conditions of the User, a Customer or a Commercial Intermediary or any other party) are specifically excluded.

2.     Definitions

For the purpose of these Terms, the following definitions apply:

Commercial Intermediary means a distributor, agent or other commercial intermediary between Porphyrio and the Customer.

Confidential Information means all information that is secret or confidential by its nature or indicated as such by a Party (it includes but is not limited to information related to the Porphyrio Software, Porphyrio Data and Porphyrio's Intellectual Property Rights or User financial or other confidential information) and obtained by the other Party.  

Customer means the physical person or legal entity that has placed an order for the Product with Porphyrio or with a Commercial Intermediary.

Smart Farm Assistant means the services with respect to the software application functions developed or offered by Porphyrio through a web portal, website or URL indicated by Porphyrio to this effect.

Production Facility means the place where the Livestock Data are generated and collected (e.g. a livestock farm, a hatchery, a slaughter house,…), and  encompasses both the buildings and all technical equipment, and the animals that are housed inside these buildings and are management by the technical equipment.

Data means Livestock Data, User Data or Porphyrio Data.

·          Livestock Data means the data generated by the Production Facility to which the Smart Farm Assistant is connected and received by the Smart Farm Assistant in order to be processed (e.g. for the Lay-Insight Software modules, this includes information related to the production and quality of eggs, such as, but not restricted to feed intake, water intake, laying percentage, egg weight, hen weight, the temperature, the relative moisture, CO2 concentrations, the prices of nutrition, the prices of the eggs, and in general any other data or information provided to or processed by the Lay-Insight Software in order to assure proper functioning of the Smart Farm Assistant; for  other Smart Farm Assistants such as Broiler-Insight, Turkey-Insight,…, the same  principles apply in respect of the animals concerned.

·          User Data means the additional data, over and above the Livestock Data, generated by the Users whether or not related to the Customer or as a result of the User using the Smart Farm Assistant, including e.g. reports or additional data generated by any third party, including but not limited to a Commercial Intermediary, a veterinarian, a feed consultant, based on or directly or indirectly related to the Livestock Data.

·          Porphyrio Data means any data obtained through analysis, perusal, processing or editing of any nature by the Smart Farm Assistant or by Porphyrio, including any metadata in relation to the operation of the software with Livestock Data or User Data or otherwise obtained directly or indirectly by Porphyrio.

Intellectual Property Rights means patents, designs, models, drawings, copyrights, software rights, database rights, trade marks, services marks, know-how, web domain names, trade names (all whether registered or not, and including any applications thereto) and in general all rights of a same or similar nature, anywhere in the world including all extensions, reversions, revivals and renewals thereof.

User means the person who uses the Smart Farm Assistant for purposes related to his or her role in and around one or more Production Facilities of the Customer.

 

Party refers to Porphyrio and the User.

 

3.     User and User account

A User will be granted access to the Smart Farm Assistant through the creation of a User account when the necessary conditions to that effect have been fulfilled (concluding a valid purchase order and payment of the relevant fees, if applicable).

The User account is linked to a username and password. User is responsible for maintaining the confidentiality and security of this username and password. Any use done through such username and password will be the sole responsibility of the User.

User must inform Porphyrio immediately in case of any unauthorized use, misuse or abuse of User’s username or password, or any other breach of data security.

Porphyrio may suspend or terminate any User account, with or without prior notice, when, in the reasonable opinion of Porphyrio, User is in breach of any of the Terms, or User is in breach of any applicable law, regulation or any third party right, or when User has been declared insolvent or bankrupt (or any similar event in any jurisdiction has occurred).

4.     License to use the Smart Farm Assistant

Opening of the User account grants the User a license to access the functionalities of the Smart Farm Assistant, including, as the case may be, the installation of cookies, plugins or small applets (“Client based Code”, e.g. the PorphyrioBlobClient) on the User IT system to control or allow connections and Data transfer between the User Automation and/or IT system and the Smart Farm Assistant. Any license to such Client based Code is limited to the non-exclusive, non-transferable right to install and run one copy of the Client Based Code on the User’s Automation and/or IT system during the term of license.

It is the Customer’s and User’s responsibility to connect the Production Facility to the Smart Farm Assistant, by installing or granting access for installation by Porphyrio or through any related (commercial) intermediary, the Client based Code and/or by ensuring the necessary technical connections to enable Data to be transferred from the Production Facility to the Smart Farm Assistant.

The license to use the Smart Farm Assistant and the Client based Code is limited to the time period and scope of use as set out in the commercial agreement between (i) Porphyrio or the Commercial Intermediary, as the case may be, and (ii) the User. If nothing specific is provided, the license is limited to one user account and one year.

No extension of the license is valid unless specifically agreed to by Porphyrio. In case the Smart Farm Assistant cannot be accessed because of force majeure or gross negligence by Porphyrio, the term of the license will be automatically extended for the period of such inability to access.

5.     Excluded use of the Smart Farm Assistant

User may only use the Smart Farm Assistant for the purposes as set out therein, and by applying normal functionality made available in accordance with the license and use rights granted by Porphyrio to the Customer.

User may not:

·          Violate or attempt to violate the technical or data security of the Smart Farm Assistant;

·          Go beyond the limitations of use applicable to its account;

·          Attempt to probe, scan or test the vulnerability of Porphyrio’s systems or networks;

·          Attempt to interfere with the provision of functions by the Smart Farm Assistant, including but not limited to hacking, introducing virus or malware, denial of service attacks or any other technical act that could or risks to impede Smart Farm Assistant functionality; or

·          Use any technology (e.g. data mining, spiders, crawlers, scraping and anything like it) to make use of the Smart Farm Assistant or its Data outside of the functionalities provided by the Smart Farm Assistant.

6.     Data ownership

All Data remain the property of the party that generates or owns such Data.

Any Data generated, transferred or used by a Commercial Intermediary are considered either User Data (when directly related to the Production Facility of the Customer) or Porphyrio Data (when the result of Smart Farm Assistant processing) for the purpose of these Terms, and are considered owned by the Customer, respectively Porphyrio.

When of relevance and at specific formal request by the data owner, Porphyrio will remove specific mentioned data from its database.

7.     Data use

Livestock Data: The User grants to (and shall cause the Customer to grant to) Porphyrio a worldwide, irrevocable, royalty-free, non-exclusive and perpetual (for at least the duration of any Intellectual Property Right or other protection right therein) right to use and process the Livestock Data in order to run the Smart Farm Assistant, and have it process the Livestock Data, develop the Porphyrio Data and to make those available to the User through the Smart Farm Assistant. When of relevance, such as might be the case in a benchmarking functionality, Porphyrio will take appropriate technical measures to make Customer or User-specific Livestock Data anonymous or without specific reference to Customer’s or User’s identity.

User Data: The User grants (and shall cause the Customer to grant to) to Porphyrio a worldwide, irrevocable, royalty-free, non-exclusive and perpetual (for at least the duration of any Intellectual Property Right or other protection right therein) right to use and process the User Data in order to run the Smart Farm Assistant and have it process the User Data, develop the Porphyrio Data and to make those available to the User through the Smart Farm Assistant. When of relevance, such as might be the case in a benchmarking functionality, Porphyrio will take appropriate technical measures to make User-specific User Data anonymous or without specific reference to User’s identity.

Porphyrio Data: Porphyrio grants the Customer and its related Users a right to use the Porphyrio Data that are specific to the Customer (as determined by the Smart Farm Assistant’s functionalities from time to time), for the duration of the license to use the Smart Farm Assistant, and in conjunction with the Smart Farm Assistant. The specific User rights of the Porphyrio Data by the User is related to the specific Role the User has in the Smart Farm Assistant, for example Integrator, Farm-Manager, Farmer, Consultant, Observer and others. The specific rights of each role can be obtained at request with Porphyrio. When of relevance, such as might be the case in a benchmarking functionality, Porphyrio will take appropriate technical measures to make User-specific Porphyrio Data anonymous or without specific reference to User’s identity.

8.     Confidentiality & security

At all times during the term of the license, as well as for a period of at least five (5) years after the termination thereof, each Party shall treat and keep all Confidential Information received from the other Party as confidential, except if it becomes public outside of the receiving Party’s control.  Except with the prior written consent of the disclosing Party, the receiving Party shall not circulate the Confidential Information or make it known to third parties unless to the extent is required to perform its duties under this Agreement, on a need-to-know basis, and subject to the recipient committing to a similar level of confidentiality protection. The receiving Party shall impose on its own employees and/or subcontractors the same confidentiality obligation.

This clause does not restrict Porhyrio’s ability to use Data in accordance with the provisions of clause 8 above, as long as the Porphyrio Data have been anonymized to the extent they are no longer identifiable as related to the specific User from which they have originated.

9.     Data protection & privacy (GDPR)

Porphyrio guarantees compliance with the General Data Protection Regulation (GDPR) as ordered by the European Union. For the purpose of providing its services to the User, Porphyrio requires a minimum of personal data of the User in order to create a specific account that the User needs to login to the Porphyrio System, which is offered as a Software-as-a-Service. Such an account is unique for the User and is identified by the following personal information:

-       Username

-       Last name, First name

-       Language

-       Street, number, postal code, city, country

-       Email, mobile, telephone, fax

 

More specifically, following stipulations on personal data apply within the framework of this Agreement.

-          AIM OF PROCESSING – Personal data in these Terms are processed on the basis of article 6.1. (b) (required to execute a commercial contract) of the GDPR.

-          STORAGE PERIOD – Personal data processed for User and/or Client administration, will be stored during a term required for Porphyrio to fulfil the legal obligations in the framework of a commercial contract.

-          RIGHT TO ACCESS, TO CORRECT, TO BE FORGOTTEN, TO CONSTRAIN, TO OBJECT AND TO TRANSGFER PERSONAL DATA – The User has the right to access his or her personal data at any time and to correct them (or let them be corrected) in case they are incorrect or incomplete, the right to delete personal data (or have them deleted) in case they are incorrect or incomplete, or the right to restrict processing of his or her personal data. Besides, the User has the right to obtain a copy (in a structured and digital readable form) of his or her personal data and to forward these data to any other company, as long as this is required and approved by the User. The User can do this either by changing the information in his or her user account in the Porphyrio Software, and/or send an e-mail to support@porphyrio.com.

-          DIRECT MARKETING – It is possible that, as a result of the normal commercial flow of the Porphyrio sales process in which the User previously showed an interest in Porphyrio and its products, certain personal data of the User are also stored in the commercial/marketing database of Porphyrio. Porphyrio guarantees that a User which is initially only created as a User for the Porphyrio Software, is not transferred to the commercial/marketing database. Moreover, a User has the right to resist to any processing of his or her personal data with the aim to perform direct marketing.

-          COMPLAINT – A User has the right to file a complaint at the Commission for Protection of Private Data (Drukpersstraat 35, 1000 Brussel - commission@privacycommission.be).

 

Data that contain accidental preference to personal identification, or that could potentially allow identification through operation of meta-analysis or other operations of technology, are not considered as Personal Data for the purpose of this Agreement.

 

10.   Intellectual Property

All Intellectual Property Rights with regard to or incorporated in the Smart Farm Assistant or the Client based Code including the technology, the know-how, the working methods, the associated documentation and/or working documents, remains at all times Porphyrio's property and/or of its licensors. Except if stated otherwise, nothing in this Agreement transfers any Intellectual Property Rights to User.

User shall only acquire those licenses and rights which are expressly mentioned in these Terms. User shall not copy or decompile the Smart Farm Assistant, the Client based Code or any component thereof, except to the extent specifically authorized under applicable law, and only if Porphyrio has not provided an alternative solution, when reasonably requested.

11.   Warranty, limitation of liability

All duties of Porphyrio under these Terms are on a reasonable efforts basis. Porphyrio provides the Smart Farm Assistant and the Client based Code “AS IS”,  and, to the extent permitted under the law, limits any warranty, whether express or implied, on any functionality or availability. 

User acknowledges and accepts that use of the Smart Farm Assistant is at the sole risk and responsibility of User. Porphyrio does not represent or warrant that the materials or Data in the Smart Farm Assistant are accurate, complete, reliable, current, subject to correction, or error-free or that the Smart Farm Assistant, its servers, or Data available are free of any harmful components.

Each User represents and warrants that such User has all and any necessary rights to provide, make available and grant the rights on any Data made available to the Smart Farm Assistant, and that such action that will not infringe any third party right or interest (including, for the avoidance of doubt, any Intellectual Property Right or any right in data).

Porphyrio will only be liable for damage caused by its intentional non-performance of its duties or by its gross negligence. Porphyrio's liability is limited to direct damage, with exclusion of any indirect and consequential damage (such as, but not restricted to loss of income, loss of customers or of man hours), up to an amount equal to the amounts paid by the User for the twelve month period in which User suffered the damage.

Porphyrio shall not be held liable and the User shall indemnify Porphyrio against all claims, damage and liability suffered by Porphyrio as a result of the use of the Smart Farm Assistant by the User for unauthorized or unlawful purposes.

12.   General Conditions

Porphyrio may assign part or whole of its rights and duties under the Terms to any third party, without any notice. Users may not assign any of their rights or duties without Porphyrio’s prior written agreement, which Porphyrio may accept or refuse at its discretion.

All aspects of the relationship between Users and Porphyrio (including these Terms and the rights and obligations arising as a result) are subject to the laws of Belgium. In case of conflict, only the Courts of Leuven will have jurisdiction.

If any provision of the Agreement is held by a court of competent jurisdiction to be legally ineffective or unenforceable, such provision shall, to the extent possible, be deemed rewritten to reflect the original intent of the parties, and the validity of the remaining provisions shall not be affected.