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.