eShepherd Terms of Service – EU Data Annex
This Annex applies if you're located in the European Union, or your Hardware is registered and used there. It forms part of the eShepherd Terms of Service under clause 17.3 and, if anything in it conflicts with the rest of the Terms of Service or with a Signed Agreement or Order Form, unless that document expressly refers to this Annex and the Data Act allows it, this Annex prevails for you.
The EU Data Act gives users of connected products, such as the eShepherd System, rights to access and share the data the product and its related service generate. This Annex explains how those rights work for you.
1Key terms
1.1
Data Act means Regulation (EU) 2023/2854 on harmonised rules on fair access to and use of data, as amended or supplemented.
1.2
Data Act Data means product data generated by the use of the Hardware and its embedded software, and related service data generated by the use of the Service, in each case as defined in the Data Act and to the extent readily available to us, together with the metadata needed to interpret and use it. It doesn't include data we derive or infer using our algorithms, such as reports and recommendations, although those remain Your Data.
Other capitalised terms have the meanings given in the Terms of Service. Most Data Act Data is Your Data. Some System Data, such as raw sensor signals and hardware diagnostics, may also be Data Act Data.
1.3
Data holder. For the purposes of the Data Act, the data holder is the Gallagher Group company that owns and operates the Service (currently Gallagher eShepherd Pty Ltd). This Annex is also an agreement between you and the data holder, which is bound by it directly and receives the permissions in clause 10.3 of the Terms of Service and clause 5.1 of this Annex directly from you. In this Annex, we and us include the data holder. Clause 14 of the Terms of Service, including the extended meaning of “we” in clause 14.1 and the single cap in clause 14.3, applies to the data holder.
2Accessing your data
2.1
How we make data available. We'll make Your Data and Data Act Data available to you easily, securely and free of charge, in a comprehensive, structured, commonly used and machine-readable format (such as CSV or JSON), together with the metadata needed to use it. Where relevant and technically feasible, we'll provide access continuously and in real time.
2.2
Your Data. You can access and export Your Data at any time using the tools available in the Service, or by making a request under clause 2.4.
2.3
System Data that is Data Act Data. On request, we'll make available System Data that is Data Act Data, without undue delay and in any event within 30 days. This applies despite clause 10.7 of the Terms of Service.
2.4
Making a request. Email eshepherd.support@gallagher.com with the subject line “EU Data Act – Data Access Request”. The rights in this Annex belong to you as the customer. An Authorised User can make a request on your behalf if you've authorised them to. We may take reasonable steps to confirm that the request is made by you or with your authority, but won't ask for more information than we need for that. We'll respond without undue delay and keep a record of your requests, which you can ask to see at any time.
2.5
No fees and continuing access. No fee under clause 10.7 or 10.8 of the Terms of Service applies to data we must make available to you under this Annex. Your access continues during any suspension of the Service, during a billing dispute and during the post-termination period in clause 10.8.
2.6
What's not covered. This Annex doesn't require us to provide derived or inferred data (other than Your Data), our algorithms, models or source code, data that isn't readily available to us, or data about other customers.
2.7
Trade secrets. If data includes our trade secrets, we'll identify them and may agree proportionate confidentiality measures with you before disclosure, such as a confidentiality undertaking. We won't use this to refuse or unreasonably delay access. We may withhold or suspend disclosure only where the Data Act allows, for example if we can't agree measures with you, you don't comply with them, or, in exceptional cases, we can show that serious economic damage is highly likely. If we do, we'll tell you in writing without undue delay, with reasons, and notify the competent authority as the Data Act requires. You can challenge our decision under clause 7.3.
2.8
Confidential Information. System Data (other than System Data the Service displays to you) is Gallagher Group Confidential Information under the Terms of Service. For Data Act Data, that doesn't limit your rights to access, use or share it under this Annex, and clauses 10.7 (confidentiality for recipients) and 12.3 (confidentiality) of the Terms of Service don't apply to it. The only confidentiality measures that apply to Data Act Data are those agreed under clause 2.7. This applies whichever Gallagher Group company relies on those clauses, including under clause 15.6 of the Terms of Service.
2.9
Deleting data. You can ask us to delete Your Data by emailing eshepherd.support@gallagher.com. We’ll do so within 30 days, except where we need to keep it for legal, regulatory, security or record-keeping purposes, or may keep using it under clause 10.5 of the Terms of Service. Deleting Your Data may stop the Service working as expected.
3Using your data
3.1
Lawful use. You may use Data Act Data for any lawful purpose, including sharing it with your advisers, researchers or service providers.
3.2
Restrictions. For Data Act Data, the restrictions in clause 6.4 of the Terms of Service apply only to the following. You must not:
- use the data to develop a connected product that competes with the eShepherd Hardware, or share it with a third party for that purpose;
- use the data in a way that could undermine the security of the Hardware and seriously affect the health, safety or security of any person;
- use coercive means, or exploit gaps in our technical infrastructure, to obtain access to data; or
- breach any confidentiality measures agreed under clause 2.7.
In particular, the restrictions in clause 6.4 of the Terms of Service on using the System to build a competing product, on publishing non-public testing results, and on providing Gallagher Group Confidential Information, System Data or bulk extracts from the Service to develop, train or benchmark a competing product, apply to Data Act Data only as set out in the first bullet above.
3.3
Everything else stays restricted
Clause 3.2 limits clause 6.4 of the Terms of Service only as it applies to Data Act Data. It doesn’t change how clause 6.4 applies to anything else, including:
- data we derive or infer, such as reports, recommendations, scores and Aggregated Data, to the extent it isn’t Your Data;
- our algorithms, models, source code, Firmware and Documentation;
- Gallagher Group Confidential Information, including trade secrets we’ve identified under clause 2.7; and
- the Service, our APIs and our systems, including extracting data in bulk other than through the tools we provide.
This Annex gives you rights to data, not to our technology. The restrictions in clause 6.4 of the Terms of Service on copying, modifying, reverse engineering or interfering with the Service, Hardware or Firmware continue to apply.
4Sharing data with a third party
4.1
Your Data. You can share Your Data with anyone using the tools in the Service, or by asking us in writing. There's no charge, and no Data Access Agreement is needed.
4.2
System Data that is Data Act Data. If you ask us in writing, stating the data, the recipient and the purpose, we'll make System Data that is Data Act Data available to your chosen recipient without undue delay, and in any event within 30 days after the recipient signs our Data Access Agreement (which contains proportionate trade-secret protections) and you confirm the request. We won't use the Data Access Agreement to discourage or delay sharing.
4.3
Compensation. We may charge the recipient, not you, reasonable and non-discriminatory compensation as the Data Act allows. For small and medium-sized enterprises and non-profit research organisations, this is limited to our costs.
4.4
Gatekeepers. Under this section, we can't make data available to a business designated as a gatekeeper under the Digital Markets Act (Regulation (EU) 2022/1925).
4.5
Responsibilities. You must confirm that you have authority to make the request. We'll take reasonable care in making the transfer and tell you promptly if data is sent to the wrong recipient. Once transferred, the recipient's use of the data is its responsibility. Clause 14 of the Terms of Service governs liability, and you don't have to indemnify us for a recipient's misuse.
5Our use of your data
5.1
Contract basis. Clause 10.3 of the Terms of Service and this Annex are the agreement under which we use non-personal Data Act Data. You agree that we may use System Data that is Data Act Data for the purposes set out in clause 10.3 of the Terms of Service, subject to this section 5.
5.2
No use against you. We won't use Data Act Data to derive insights about your economic situation, assets or production methods, or in any other way that could undermine your commercial position in the markets you operate in.
5.3
Sharing with third parties. We'll only make non-personal product data available to third parties to perform our agreement with you (including through service providers bound by confidentiality), where you've agreed, or where the law requires. We may also share Aggregated Data, which can't be used to identify you, your farm or your animals. Where relevant, we'll contractually require third parties not to share the data further.
5.4
How this changes the Terms of Service. For you, clauses 10.2, 10.3, 10.4, 10.5 and 10.6 of the Terms of Service apply subject to this section 5.
6Personal data
6.1
GDPR prevails. Where Data Act Data includes personal data, the General Data Protection Regulation (Regulation (EU) 2016/679) and the Privacy Statement prevail over this Annex to the extent of any conflict.
6.2
Other people's personal data. If you ask us to share data that includes personal data about someone other than you, we'll need a lawful basis under the GDPR before we can do so.
7Fair terms, changes and disputes
7.1
Fair terms. We won't apply any term of the Terms of Service in a way that excludes or undermines your rights under this Annex. Any term that would be unfair under Article 13 of the Data Act, or otherwise contrary to it, doesn't bind you to that extent.
7.2
Changes. We may update this Annex under clause 1.6 of the Terms of Service, but no update will reduce your rights under the Data Act.
7.3
Disputes. You may refer a dispute about this Annex to a certified dispute settlement body under Article 10 of the Data Act, or complain to the competent authority in any EU Member State. Clause 15.3(a) of the Terms of Service (talk to us first) doesn't delay either step. Otherwise, clause 15.3 of the Terms of Service applies.
8Data Act information
8.1
Information sheet. Our Data Act information sheet at eshepherd.com/terms/eu-data-act describes the data the eShepherd Hardware and Service generate, how you can access, share and delete it, how we and others use it, and who the data holder is. We, or our eShepherd Partners, also give it to buyers of eShepherd Hardware in the EU before purchase.
8.2
Keeping it up to date. We'll keep the information sheet accurate and up to date. If it changes in a way that materially affects you, including a change of data holder or of the purposes for which we use Data Act Data, we'll tell you. Earlier versions are available on request.
8.3
Your rights. The information sheet describes the data and how it's handled. Your rights and our obligations are set out in this Annex and the Terms of Service.