Nedap Livestock Connect
1. DEFINITIONS AND AGREEMENT STRUCTURE
In this Agreement, the defined terms below shall have the meaning assigned to them in this section.
|“Agreement”||means this Agreement, including any future written and executed amendments hereof.|
|“Affiliate”||means in relation to an entity, another entity controlling, controlled by, or under common control with that entity. For the purpose of this definition, control means the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest, if not a corporation) of an entity ordinarily having voting rights, or the equivalent right under contract to control management decisions with regard to relevant subjects.|
|“Api-Data”||means the sub-set of the Data accessible through the Nedap API.|
|“Charges”||means the amount of money for the services provided under this Agreement, amended from time to time|
|“Client”||means a Party agreed to obtaining the Services from Nedap.|
|“Confidential Information”||means any information (in any form) relating to the Data and any other information (in any form) that has been disclosed by or on behalf of a Party or its Affiliates in confidence, or which by its nature ought to be regarded as confidential.|
|”Data”||means information from the Nedap Products collected, processed and stored on the Nedap’s controlled and/or owned server at the premises of the Premises-Owner.|
|“Effective Date”||means the date on which the Client clicked the “I Agree button”.|
|“Intellectual Property and Data Rights”||means any and all rights, including future rights, to inventions, patents, designs, copyrights, trademarks, service marks, Data, database- and topography rights, (whether or not any of the foregoing have been registered, and including applications for registration of any of the foregoing), together with all trade secrets, know-how and rights or forms of protection of a similar nature or having a similar effect.|
|“Force Majeure”||means events, circumstances or causes beyond either Parties reasonable control such as: acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic either suffered by humans or animals, terrorist attack, civil war, civil commotion or riots, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent, collapse of buildings, fire, explosion or accident, interruption or failure of utility service.|
|GDPR||means REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).|
|“Nedap API”||means the Nedap application programming interface.|
|“Nedap Products”||means any Nedap hardware, software, firmware, materials, documents, products and services employed.|
|“Not-Allowed”||means the actions not allowed to be (in)directly performed by Client, such as: (a) transfer, sell, resell, license, sublicense, distribute, rent or lease the connection to the Nedap API or the software used to build the connection between the Client and the Nedap API; (b) to store or transmit infringing, libelous, defamatory, obscene or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights or applicable laws or regulations, or for any illegal, harmful or fraudulent use or activities; (c) upload, use or store or transmit, malware or other algorithm that may damage, interfere with, surreptitiously intercept or expropriate any system, program or Data; (d) violate, interfere with, alter, harm, destroy or disrupt the security, integrity or performance of, or attempt to gain unauthorized access to the Nedap API or any Data contained therein, or any related or other software, service, systems or network; (e) reverse engineer, decompile, disassemble, translate or convert or otherwise attempt to derive the source code of the software for or structure of the Nedap API or any related software or other technology; (f) to allow third parties to infringe the Intellectual property or Data rights of Nedap.|
|“Services”||means the services performed by Nedap to install, maintain, support or facilitate the connection to, the download of, the access to or any related services for the Api-Data, Nedap API and the Nedap Cloud Services also further explained in ICT module 4 which is part of this Agreement and can be found on the web page: https://nedap.com/algemene-voorwaarden/.|
|“Fair-Use-Policy”||means that Nedap uses a fair use policy stipulating the terms and conditions for the access and use of the Services such as monitoring the number of requests send by Client to the Nedap API, the frequency of downloading the Api-Data or similar conditions and the circumstances which allows Nedap to throttle or close the interface between Client and the Nedap API.|
|“Security Features”||means any security feature, including any key, PIN, password or token.|
|“Surviving Provisions”||means sections 2.2.d., 2.2.e., 2.2.f., 2.2.g., 2.2.h., 4, 5, 6, 7 and 8 of this Agreement.|
1.2 Agreement Structure:
In case of any inconsistencies and/or contradictions between this Agreement, the Schedules and/or ICT office modules the following structure will apply:
a) The Agreement (including the Schedules) will prevail above the ICT office modules, unless specific modules are referred to in this Agreement
b) The Agreement will prevail above the Schedules.
2. PROVISIONS BY THE PARTIES
2.1 Nedap will use its best efforts to:
a) install, maintain and provide Services to Client;
b) advise Client with regard to the implementation of its interface to the Nedap API to get access to the Api-Data;
c) provide a Security Feature to the Client to release the Api-Data;
d) grant Client access to the Api-Data after successful use of the Security Feature by the Client; and
e) use commercially reasonable efforts to keep the Services available excluding (a) scheduled maintenance time; and (b) any unavailability caused by circumstances beyond Nedap’s reasonable control, including Force Majeure.
2.2 Client warrants:
a) to implement, maintain and service, at Client’s cost, the software required to create the interface with the Nedap API in order to exchange the Api-Data;
b) to support and maintain Client’s software applications for the proper functioning of the Nedap Products;
c) to ensure availability of necessary internet infrastructure and hardware configuration requirements to successfully establish a connection between Client and the Nedap API;
d) prior to access and use of the Api-Data have received the Premises-Owner’s consent;
e) to use the Security Feature to access the Nedap API and unless Nedap notifies the Client otherwise, to keep confidential and not lend, share, transfer or otherwise misuse the Security Feature by the Client;
f) to hold Nedap harmless for all liabilities incurred for not having the consent of the Premises-Owner for the exchange and use of the Api-Data;
g) to comply with the Fair Use Policy applicable to this Agreement;
h) not to perform, directly or indirectly, any actions which are Not-Allowed; and
i) to comply with all applicable law, regulations including but not limited, any security, sanctions and/or export laws applied by the United Nations, European Commission or the country in which the Client is located.
3. INTELLECTUAL PROPERTY AND DATA RIGHTS
3.1 Any and all Intellectual Property and Data Rights, including and the software provided to and accessed by Client under this Agreement shall be owned by Nedap or its licensors. Nedap grants Client, for the Term and on the terms stipulated in this Agreement, a non-exclusive license under this Agreement to use the Api-Data.
4.1 For the performance of the Services, the Client shall pay the Charges as to be agreed between Parties.
5.1 During the Term of this Agreement and for a period of 5 years thereafter, each Party shall keep the Confidential Information of the other Party confidential and not disclose the Confidential Information to any third party without the other Party’s prior written consent.
5.2 Clause 5.1 does not prevent a Party to disclose Confidential Information, which:
a) was already in the public domain at the time of disclosure, except as a result of a breach of this Agreement; or
b) is required to be disclosed by applicable law or the rules of a relevant stock exchange, provided that the disclosing Party promptly notifies the other Party of its requirement to disclose, and co-operates with the other Party in avoiding or limiting the requested disclosure.
5.3 Each Party shall:
a) use the Confidential Information solely for the performance of its obligations or exercising its rights under this Agreement;
b) only make Confidential Information available to staff on a need-to-know basis, and on the same terms and conditions as mentioned in this clause; and
c) upon the other Party’s written request or at the termination of this Agreement, promptly return to such Party all Confidential Information in its possession.
6. DATA PROTECTION
6.1 Each Party shall comply with GDPR requirements and, if applicable, assures to have received consent from the data subject to process the data subjects personal information (all GDPR terminology used in this clause, are defined terms in the GDPR).
If, during the Term of this Agreement, personal data is processed, such processing shall be done on the instruction of and the purpose set by the data controller.
When processing personal data, each Party shall, and shall procure that:
a) only encrypted personal data will be processed;
b) appropriate technical and organizational measures are taken to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, use or access and against all other unlawful forms of processing, including controls over entry, access, intervention, disclosure, input and preservation of and to the personal data;
c) personal data shall not be transferred out of the European Union unless the EU-model clauses are applied;
d) only authorized staff will have access to the personal data during the Term of this Agreement and will be processed for the purpose mentioned in the instruction provided by the data-controller;
e) if requested by the other Party, cooperate with the requesting Party to provide the relevant information required for the answering of questions raised by data subjects; and
f) if a competent data protection authority gives directions to, makes a decision related to or requests a Party to provide information on, the processing of personal data, the other Party will cooperate in a timely manner.
6.2 In the event of an actual or suspected personal data breach or security incident, Client shall provide Nedap with prompt (but in no event later than forty-eight (48) hours after becoming aware) written notice of any security incident that involves, or which Client reasonably believes involves, the unauthorized access, use or disclosure of personal data.
7. EXCLUSION OF LIABILITY
7.1 Except for willful misconduct or gross negligence no party will be liable for direct or consequential damages caused by a breach of this Agreement. Nedap excludes all liability regarding the accuracy, reliability, fit for purpose of Service orApi-Data, continuation of, mistakes made, interruption or modification of Services, use of Services and/orApi-Data.
8. TERM AND TERMINATION
8.1 This Agreement shall commence on the Effective Date and will continue until either Party provides a written notice of termination to the other Party (“Term”).
8.2 Either Party may terminate this Agreement:
a) for convenience; or
b) if the other Party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
8.3 Nedap will terminate the Agreement if:
a) the Client has failed to pay its Charges in regard to Services on the due date of payment and remains in default not less than fourteen (14) days after being notified in writing to make that payment;
b) at any time and/or in case the use of Services is in excess of common practice or as stipulated in the Faire Use Policy terminating the Nedap API or the connection thereto.
8.4 Any provision of this Agreement that expressly (Surviving Provisions) or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
8.5 Any termination of this Agreement for any reason or expiry of the Term, the Client shall immediately pay any outstanding amounts owed to the Nedap.
9.1 Any and all notices or other information required or to be given by Client to Nedap shall be deemed sufficiently given if sent by e-mail or by registered mail to the following address:
Address: Nedap N.V., division Livestock Management, Parallelweg 2, 7141 DC Groenlo, the Netherlands.
For the attention of: Manager Nedap Livestock Connect (email@example.com)
9.2 Such notices shall be deemed to have been received five (5) business days after mailing if sent by registered mail, and the following business day if sent by e-mail.
10.1 Nedap reserves the right to amend this Agreement. Nedap will, at its sole discretion, make available the amendments either at the web site (http://connect.nedap-livestockmanagement.com/or through any other form of communication. Client is responsible for regularly consulting the website.
Once the Agreement is amended, the Client’s continued access and use of the Services or downloading of Api-Data will be deemed as an acceptance of the amended agreement. If an amendment to the Agreement is not acceptable to the Client, Client may terminate this Agreement by providing a notice to Nedap one (1) month prior to the communicated termination date.
10.2 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable without invalidating any of the remaining provisions of this Agreement. The Parties shall amend the invalid, illegal or unenforceable provision so that, as amended, it is valid, legal, and enforceable, and, to the greatest extent possible, achieves the intended result of the original provision.
10.3 The Parties agree that this Agreement, including documents posted at the web site (http://connect.nedap-livestockmanagement.com/is the entire agreement and supersedes all prior proposals and agreements, oral and written, and all other communications between the Parties.
11. APPLICABLE LAW AND DISPUTE RESOLUTION
11.1 This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands, without having regard to the conflict of law rules. The Parties agree that the law of the Netherlands is applicable. The Parties hereby explicitly exclude application of the United Nations Convention on Contracts for the International Sale of Goods. Upon exhaustion of the escalation procedure in clause 11.2, all disputes arising out of or in connection with the present Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
11.2 In the event a dispute arises under this Agreement, either Party may arrange a joint meeting to discuss and settle the dispute. This meeting will be attended by a duly authorized representative. For Nedap, this is the Manager of Nedap Livestock Connector its deputy. If Parties fail to settle the dispute at the joint meeting, each Party may refer the dispute for final settlement to the respective managers of the Parties. Those representatives shall discuss the dispute within 5 (five) business days (or such other period as agreed between Parties in writing) following the referral.