eShepherd Terms of Service
These terms govern your access to and use of the Gallagher eShepherd™ Service, including the Connectivity your neckbands and base stations need to work. Gallagher bills Connectivity to you directly. Read them before you create an account or buy Connectivity.
These are your legal rights and obligations, so please read everything. If you can't agree to these terms, you can't use the Service.
Questions? Contact us at eshepherd.support@gallagher.com.
1About these terms
1.1
What these terms cover. These terms govern your access to and use of the eShepherd Service, including buying Connectivity for your Hardware. Capitalised terms have the meanings given in clause 16.1.
1.2
Who you contract with. Unless your Order Form says otherwise, you contract with the Gallagher Group company shown in clause 15.4 for the country where your Hardware is registered and used. We're responsible to you for the Service, including how it's operated and how the Gallagher Group handles Your Data and Personal Data under clauses 10 and 11. If the EU Data Annex applies to you, the data holder named in it is also a party to that Annex.
1.3
Accepting these terms. You accept these terms by clicking “I accept” (or similar), by signing an Order Form that refers to them, or by using the Service. If you don't agree, you must not use the Service. If you accept on behalf of a company, partnership, trust or other entity, you confirm you have authority to bind it.
1.4
When these terms start and end. These terms start when you accept them. They end when all your Connectivity has been cancelled or has ended, any Fixed Period has finished and everything owing has been paid, or earlier under clause 5.4. Clause 5.5 then applies. If you buy Connectivity again later, you’ll need to accept the terms then in force.
1.5
What makes up our agreement. Our agreement is made up of any Signed Agreement, your Order Form, these terms, the EU Data Annex (if it applies to you), the Privacy Statement, any Product Terms, the Product Lifecycle and Support Commitment and the Documentation. If there’s a conflict, they apply in this order: (a) a Signed Agreement; (b) your Order Form, but only where it identifies the clause of these terms it overrides and has been signed by an authorised signatory of a Gallagher Group company (an online checkout can’t override these terms); (c) the EU Data Annex, for the matters it covers; (d) any Product Terms, for the Add-On, product or feature they cover; (e) the Product Lifecycle and Support Commitment, for the matters it covers; (f) the Privacy Statement, for how we handle Personal Data; (g) these terms (including clause 17); and (h) the Documentation. A document lower in this order applies to the extent it deals with something the documents above it don't.
1.6
Changes to these terms. We may update these terms by publishing a new version at eshepherd.com/terms. We'll give you at least 30 days' notice, by email or through the Service, of any change that materially reduces your rights or increases your obligations. If you don't agree, you can cancel before the change takes effect and receive a pro-rata refund of any prepaid Connectivity Charges; if you keep using the Service after that, you accept the change. Material changes don't apply during a prepaid Fixed Period until it ends or you renew. We may make changes required by law, a regulator or a court order on shorter notice, or immediately if needed. Other changes take effect when published. Price changes are dealt with under clause 4.6.
1.7
No other changes. These terms can be changed only by a Signed Agreement or an Order Form that meets clause 1.5(b), or under clause 1.6. No employee, eShepherd Partner or other person can change them by what they say or do. Changes to an Order Form need written agreement from both of us.
2Your account and users
2.1
Your account. You must give us accurate account information and keep it up to date. You're responsible for keeping your login details secure and for all activity under your account. Tell us promptly at eshepherd.support@gallagher.com if you become aware of unauthorised access. We're not liable for loss caused by your failure to protect your login details.
2.2
Authorised Users. You can give people who use the Service for you, such as employees and contractors, access as Authorised Users. Each Authorised User must accept the eShepherd User Terms and confirm they’ve read the Privacy Statement before using the Service. Their acceptance doesn’t change your rights or obligation under these terms. You're responsible for what they do or don't do. You must make sure they're properly trained (including through any online training we provide) and are aware of and comply with the parts of these terms that apply to their use of the Service, and you must promptly remove anyone who no longer needs access or who you know has breached these terms. We may disable an Authorised User who we reasonably believe has breached these terms or poses a security risk (where practicable, we'll tell you before doing so).
3Using the Service
3.1
Your right to use the Service. While you comply with these terms and pay your Connectivity Charges, we grant, or procure the grant of, a non-exclusive, non-transferable, revocable right for you and your Authorised Users to use the Service with your registered Hardware for livestock operations you manage or control, using the features available under your Connectivity and any Add-Ons you activate, in line with the Documentation. You're paying for access to the Service, not buying it. Hardware is certified, and Connectivity is provided, region by region, so you may only use the System in a country where we've confirmed it's supported.
3.2
Supported devices and browsers. You can access the Service through the web browsers and mobile apps we support, as listed in the Documentation, which may change over time. The Service may not work properly on browsers, operating systems or devices we don't support, including outdated versions, and we're not responsible for issues this causes. You're responsible for your own devices, internet access and mobile data costs, and for keeping alert notifications turned on. Where reasonably practicable, we'll give advance notice before we stop supporting a browser, operating system or device widely used by our customers.
If you download the eShepherd mobile app from an app store, the app store's licence terms (such as Apple's standard licence terms) also apply to the app. Those terms cover your licence to download and install the app. These terms govern your use of the Service, including through the app, and if the two conflict about your use of the Service, these terms apply.
3.3
Add-Ons. We may from time to time offer Add-Ons. Access to Add-Ons may need additional fees, which we'll tell you about before you activate them, or additional hardware, including third-party hardware, which we'll identify before you activate the Add-On. We'll make any Product Terms for an Add-On available before you activate it, and they only apply once you do. If an Add-On needs third-party hardware, that hardware is covered by its manufacturer’s warranty and terms, which we’ll tell you about before you activate the Add-On. We may change or discontinue Add-Ons. If we discontinue an Add-On you’ve activated, we’ll give you reasonable notice (at least 30 days where practicable) and refund any prepaid fees for it for the period after it ends, pro rata.
3.4
Beta features. From time to time, we may release features labelled “beta” or “preview”. These are for evaluation, may have bugs or be less reliable than standard features, and may be changed or removed at any time. Unless the law says otherwise, they don't carry the same commitments as standard features.
3.5
Support. While your Connectivity is active, we'll use commercially reasonable efforts to provide remote support to help you install, set up and use the System (during the support hours published on our website for your region). We may offer additional or priority support as an Add-On, or agree bespoke support with you in writing; we don't have to provide on-site support unless we agree to. If you bought Hardware from an eShepherd Partner, the Partner will provide first-line support.
4Connectivity, charges and billing
4.1
What Connectivity provides. Connectivity lets your registered Hardware communicate with the Service. Your Connectivity Charges cover:
(a)
the Core Functions, which let you, through at least one supported app or web interface: create, change, remove and deactivate virtual boundaries and exclusion zones; have Neckbands deliver cues to livestock at those boundaries; see the location of your Neckbands; and receive alerts about boundary breaches and Hardware status; and
(b)
any other features we include with Connectivity from time to time, which we may change under clause 8.3.
Add-Ons are separate (see clause 3.3). Virtual fencing won't work without active Connectivity, correctly deployed Hardware and adequate network and GPS coverage.
4.2
When Connectivity starts. Unless your Order Form says otherwise, Connectivity starts when you activate your account and register a Neckband, and continues monthly until cancelled. There's no minimum term.
4.3
Connectivity Charges and Active Months. You pay a monthly Connectivity Charge, as shown at checkout, in your Order Form or in our price list, for each Neckband that records an Active Month. A Neckband records an Active Month if it communicates with the Service at any time in a calendar month, however briefly. The full monthly charge applies, even if the Neckband was active for only part of the month, including in the month your cancellation takes effect.
For example, if 80 of your 100 registered Neckbands communicate with the Service in April, you're charged for 80 Neckbands for April.
4.4
Hibernation. A Neckband that stays correctly in Hibernation (switched off with the magnet key so it doesn't communicate with the Service) for a whole calendar month isn't charged for that month. You're responsible for activating Hibernation correctly, as described in the Documentation. Hibernating Neckbands, including for a whole season, doesn’t cancel your account and isn’t a reason for us to suspend the Service or to end these terms.
4.5
Prepaid Fixed Periods. If you prepay a fixed period of Connectivity under an Order Form (a Fixed Period), your rate is locked in and you pay for the number of Neckbands stated in it for the whole period, whether or not each records an Active Month. Your Order Form will say whether Connectivity ends when the Fixed Period ends or continues monthly.
4.6
Price changes. We'll give you at least 60 days' notice of any change to Connectivity Charges. New prices apply from the first full calendar month after the notice period, never during a Fixed Period, and you can cancel before they take effect.
4.7
Billing and payment. Unless your Order Form says otherwise, we bill Connectivity Charges and recurring Add-On fees monthly in arrears, in the currency shown at checkout or in your Order Form. You authorise us and our payment providers to charge your payment method on a recurring basis until your Connectivity and any recurring Add-Ons have ended and everything owing is paid. You're responsible for card and currency conversion fees. If we agree to invoice you, payment is due within the period stated on the invoice.
4.8
Taxes. Prices exclude GST, VAT, sales tax and similar taxes, which you must pay on top of Connectivity Charges and other amounts due. If you claim a tax exemption, provide us with a valid exemption certificate; the exemption applies only from when we receive and verify it. If you're legally required to deduct or withhold tax from a payment to us, you must increase the payment so that the amount we receive after the deduction equals the full amount otherwise due.
4.9
Late or failed payments. If a payment fails, we may retry it. You must pay our reasonable costs of collecting overdue undisputed amounts where the law allows.
4.10
Disputed charges. If you think a charge is wrong, tell us in writing within 30 days, with your reasons, and pay the undisputed part. We'll work with you to resolve it promptly. While a dispute raised in good faith is being resolved, we won't suspend the Service because of the disputed amount. Otherwise, you can't withhold or set off amounts unless we agree in writing, a court or tribunal decides, or the law requires it. This doesn't limit any legal right you have to reverse a payment.
5Suspension and cancellation
5.1
When we may suspend. We may suspend all or part of the Service if an undisputed amount is more than 14 days overdue, you or an Authorised User materially breaches these terms, the law requires it, or continued access creates a serious risk to the security of the Service, animal welfare or anyone's safety.
5.2
How suspension works. Before suspending for non-payment or a breach that can be fixed, we'll give you at least 7 days' notice so you can make other monitoring and containment arrangements for your livestock. Otherwise, we'll give as much notice as is practicable, but we may suspend immediately where the law requires or to address an urgent security, safety or welfare risk. We'll tell you why and lift the suspension promptly once the issue is resolved.
Suspension doesn't cancel your Connectivity. If we suspend for non-payment or your breach, Connectivity Charges continue to apply to any Neckband that records an Active Month during the suspension. We won't charge for a month in which the Service is suspended for any other reason. We'll credit you if a suspension results from our breach.
5.3
Cancelling your Connectivity. You can cancel rolling Connectivity at any time by emailing eshepherd.accounts@gallagher.com or through the Service. Cancellation takes effect at the end of the calendar month in which we receive your notice (or a later date you choose). If any Neckband records an Active Month in the final month, the full monthly charge applies for that Neckband. Charges up to the effective date remain payable. A prepaid Fixed Period can only be cancelled where these terms, your Order Form, or the law allows.
5.4
When either of us may end these terms. Either of us may end these terms by notice if the other materially breaches them and the breach can't be fixed or isn't fixed within 30 days of written notice. We may end these terms by notice if an undisputed amount is unpaid for more than 30 days, or if the law or a binding order requires it. We may also end these terms by notice if you become insolvent (to the extent the law allows), or if you or an Authorised User commit a serious or repeated breach of clause 6 that puts animal welfare at risk. If you end these terms because of our breach, we'll refund any prepaid Connectivity Charges for the period after they end, pro rata. Unless immediate termination is reasonably necessary, a notice from us will give the reason and the date it takes effect. Except where the law requires or to address an urgent security, safety or welfare risk, we'll give you at least 14 days' notice before these terms end for non-payment, so you can make other arrangements for your livestock.
5.5
What happens when these terms end. You lose access to the Service. Ownership of your Hardware is dealt with under the Purchase Terms and isn’t affected by these terms ending, but it will no longer connect to the Service or provide virtual fencing. Amounts owing up to the end date remain payable, and prepaid amounts are refundable only where these terms, your Order Form, or the law says so. Rights that have already arisen, and the provisions on data, IP, confidentiality, liability, indemnities, disputes and amounts owing, continue. What happens to Your Data is dealt with in clause 10.8.
6Livestock welfare and acceptable use
6.1
You remain responsible for your livestock. You're responsible at all times for livestock welfare, monitoring and containment, and for complying with animal welfare, fencing, biosecurity and livestock control laws. You must decide whether virtual fencing is appropriate for your property, your livestock and the law that applies where you use the System. Before using virtual fencing near a public road, railway, neighbouring property or other hazard, you must assess the risk of animals reaching it and use containment that is appropriate to the risk and lawful where you use the System. Virtual fencing doesn't replace any physical fencing or other containment that the law requires. If you use the System on animals you don't own, you must have the owner's authority to do so.
6.2
Using the System safely. You must follow the Documentation, including training protocols, fitting instructions, recommended settings and safety guidance, and you must:
- only fit Neckbands to the species and classes of animal the Documentation says they're designed for, and never to any other animal or to a person;
- follow any safety notice we issue for the System;
- monitor animals regularly, especially during initial training, after changing boundaries or settings, and in unusual weather or site conditions;
- check the boundaries and settings you create against conditions on the ground;
- keep alert notifications turned on and respond promptly to alerts;
- correctly fit and maintain Neckbands, remove a Neckband from any animal showing signs of injury or adverse reaction, and tell us promptly about any animal welfare concerns arising from your use of the System;
- provide appropriate feed, water and shelter; and
- make other monitoring and containment arrangements ready for when the Service is unavailable, suspended or ended.
6.3
Complying with the law. You must comply with all laws, regulations and industry codes that apply to your use of the System, including animal welfare, export control and sanctions laws, hold any permits or approvals the law requires for using virtual fencing where you use it, and must not use, export, re-export or transfer the Service, Firmware, Hardware or related technical information in breach of export control, sanctions or import laws, or use the System in any country or territory subject to comprehensive sanctions or a trade embargo.
6.4
Things you must not do. You must not, and must not let anyone else:
- use the Service except for livestock operations you manage or control, or resell, sublicense or provide it to others;
- copy, modify, reverse engineer or interfere with the Service, Hardware or Firmware, except to the extent the law expressly permits and doesn't allow to be excluded by contract;
- circumvent any security, billing or measurement mechanism, including anything that records Active Months or detects Hibernation;
- use the SIM or network capability provided with Connectivity for anything other than operating registered Hardware with the Service;
- introduce malware, attempt unauthorised access, scan for vulnerabilities, scrape the Service (other than through our APIs) or disrupt other users;
- use the System to build a competing product;
- sell, license or provide Gallagher Group Confidential Information, System Data, or bulk extracts from the Service (other than Your Data) to anyone to develop, train or benchmark a competing product;
- publish non-public testing results without first giving us a reasonable opportunity to review them so we can request correction of factual errors and removal of Gallagher Group Confidential Information (this doesn't apply where required by law or needed to get professional advice, make an insurance claim or enforce legal rights); or
- remove or alter any branding or labels on the Hardware.
7Hardware and Firmware
7.1
Hardware. Hardware is sold under the Purchase Terms, not these terms. The eShepherd Warranty Policy applies to Hardware whichever channel you buy from. It is given by the warrantor named in it, operates alongside the Purchase Terms and isn't part of these terms. The Product Lifecycle and Support Commitment, available on our website, also applies. You must register Hardware and configure, fit, charge, maintain and use it as the Documentation describes. The Service may not perform properly if you don't, or outside supported coverage, power and site conditions.
7.2
Firmware. While your Connectivity is active and you comply with these terms, we grant, or procure the grant of, a limited, non-exclusive right for you and your Authorised Users to use the Firmware with registered Hardware for your livestock operations. You can't transfer or sublicense that right on its own, but it moves with these terms if you transfer them under clause 15.2. If you sell Hardware, the buyer can use its Firmware once they register the Hardware under their own account. Buying Hardware doesn't give you a right to use Firmware without the Service.
7.3
Firmware updates. Gallagher Group may update Firmware remotely, including immediately where reasonably needed for security, safety or compliance. Clause 8.3 applies to Firmware updates. For other updates that materially change how your Hardware works, we'll use reasonable efforts to tell you in advance. You must keep Hardware available for updates and must not block required updates. We're not responsible for issues caused by a required update not being installed, unless caused by our breach or negligence.
8Availability, changes and product lifecycle
8.1
Availability. We'll use commercially reasonable efforts to keep the Service available, but can't guarantee uninterrupted or error-free access. Performance depends on network and GPS coverage, hosting, power, Base Station placement, terrain, vegetation, weather and site conditions, which vary by location and over time. You're responsible for confirming your site meets the requirements in the Documentation and for keeping other containment arrangements in place.
8.2
Maintenance. Where reasonably practicable, we'll give at least 48 hours' notice of scheduled maintenance. Emergency maintenance for security, stability or legal compliance may happen on short notice. We'll give you as much notice as is practicable, so you can make other arrangements for your livestock, and tell you as soon as practicable afterwards.
8.3
Changes to the Service. We regularly update and improve the Service, including through Firmware updates, and you may not be able to stay on an earlier version. While your Connectivity is active, the Service will continue to include the Core Functions, unless a change is required by law, needed for security, safety or animal welfare, needed because a third-party service they rely on is no longer reasonably available, or needed to address an intellectual property claim. If a change materially and adversely affects your ability to use the Core Functions, we'll tell you at least 30 days beforehand (or as soon as practicable if the reason needs a shorter period). If you tell us in writing within 30 days after the change takes effect (or after we tell you, if later), explaining how it affects you, we’ll have 30 days to fix the problem or offer a reasonable workaround. If we don’t, you can cancel Connectivity for the affected Hardware by notice, and we'll refund any prepaid Connectivity Charges for the period after cancellation, pro rata. This clause is about which functions we make available, not how the System performs at your site (see clauses 8.1 and 13.2).
8.4
Product Lifecycle. If Gallagher Group retires a Hardware model or the whole System, the eShepherd Product Lifecycle and Support Commitment on our website applies. It explains the notice we’ll give, the support we’ll continue to provide and how Connectivity Charges are treated during that support.
9Partners and third parties
9.1
eShepherd Partners. eShepherd Partners supply Hardware and support under their own contracts and aren't our agents. Unless we confirm otherwise in writing, only a Gallagher Group company can grant or end access, set or waive charges, change these terms or the Privacy Statement, decide how data is classified under these terms, grant rights in Gallagher Group technology or make commitments about the Service. We're not liable for a partner's acts or omissions, or bound by partner statements that are inconsistent with these terms.
9.2
Third-party integrations. If you connect a Third-Party Integration to the Service, you authorise Gallagher Group to share Your Data with that provider as needed for the integration, in line with your settings and instructions in the Service. Once data leaves the Service, the provider's own terms and privacy policy govern its use. You can disconnect an integration at any time through your account settings, but data already shared stays subject to the provider's terms. We may add, change or remove Third-Party Integrations at any time. Where practicable, we’ll give you reasonable notice before removing a Third-Party Integration you use.
9.3
Third-party components and mapping. The Service relies on third-party networks, hosting, mapping, satellite and payment services, whose terms may apply. You can choose a mapping provider for your property from those available in the Service. Your use of that provider's maps is subject to its terms, available in the Service. If you use Google Maps, your use is subject to the Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy at https://www.google.com/policies/privacy/. You must make sure your Authorised Users follow the terms of any mapping provider they use. Map imagery and data come from the provider and may be out of date or inaccurate, so check virtual fence boundaries against conditions. We may add or remove mapping providers, and if we remove the one you use, you can choose another.
9.4
Our responsibility for third parties. This clause applies to Third-Party Integrations (clause 9.2) and third-party components (clause 9.3). Unless the law says otherwise, we don't guarantee their availability, accuracy, security or compatibility, you use Third-Party Integrations at your own risk, and we're not responsible for what a third-party provider does or fails to do. This doesn't apply to the extent a loss is caused by our own breach of these terms or our negligence.
10Data
10.1
Your Data. You own the farm and livestock information you or your Authorised Users enter into the Service, and the farm and livestock information the Service displays to you (Your Data). This includes paddock and boundary information, livestock identifiers, GPS locations, movement, activity, behaviour and cue delivery records, and alerts, reports, summaries and recommendations. Owning Your Data doesn't give you any rights in the System, or in the algorithms and models that produce it.
10.2
System Data and Gallagher Group technology. As between you and the Gallagher Group, the Gallagher Group owns the System, its algorithms and models, and any improvements and trained models developed using Your Data, and exclusively owns the technical and operational data the System generates (System Data). This includes hardware diagnostics, firmware telemetry, connectivity metrics, raw sensor signals and technical parameters, stimulus calibration and delivery telemetry, and data the Gallagher Group’s algorithms generate before a result is displayed to you.
Put simply: information about your farm and livestock is Your Data, and information about how our equipment and technology work is System Data. This applies even where System Data relates to your property or animals, or parts of it (such as battery or signal status) are displayed to you. System Data, other than System Data the Service displays to you, is Gallagher Group Confidential Information.
10.3
How we use Your Data. You give Gallagher Group a non-exclusive, worldwide, royalty-free permission to use Your Data:
- to operate, support, secure and maintain the System for you;
- to evaluate, improve, train and develop the Gallagher Group’s algorithms, models and products;
- to create Aggregated Data; and
- as reasonably needed to comply with law, enforce these terms, resolve disputes or protect the Service.
We'll make sure identifiable Your Data is kept within the Gallagher Group and its service providers bound by confidentiality, and will de-identify it before sharing it with anyone else for these purposes. We may also pass on to other Gallagher Group companies any rights you give us under these terms.
10.4
Aggregated Data. Aggregated Data is data that has been combined and de-identified so that you, your farm, your animals and your property can't reasonably be identified. It's owned by the Gallagher Group, and may be used, licensed and shared for research, benchmarking, industry insights, product development and other lawful purposes related to agriculture, animal or land management. We'll de-identify data in line with the Privacy Statement and recognised standards. We won't try to re-identify you, we'll require recipients not to, and we won't name you in any published benchmark or case study without your written consent.
10.5
After these terms end. The permission in clause 10.3 continues only:
- for Aggregated Data already created;
- for reports and recommendations already generated, to evaluate and improve our models;
- for any model, algorithm or product developed using Your Data (whether or not the data was de-identified at the time), including its continued use, validation and improvement; and
- for as long as reasonably needed to comply with law or resolve a dispute.
We don't have to delete, retrain or rebuild any model or product, but we won't use them to reconstruct or re-identify your data.
10.6
We won't sell your data. Gallagher Group won't sell Your Data or disclose it in identifiable form outside the Gallagher Group, except as this clause 10 permits, when you ask us to, to service providers bound by confidentiality, or where the law requires. If the law requires us to disclose Your Data, including in response to a demand from a government body, we’ll tell you in advance where we’re legally allowed to, so you can seek to protect it (see clause 12.3). “Sell” means disclosing identifiable Your Data to a third party for money, for its own commercial purposes. Commercialising Aggregated Data or System Data isn't a sale.
10.7
Accessing and sharing Your Data. You can export and share Your Data using the Service's tools and once shared the recipient's terms apply. If sharing would disclose Gallagher Group Confidential Information, we may require the recipient to keep it confidential. We don't have to provide System Data or information the Service doesn't ordinarily make available, or build custom data feeds (which may be available for a fee). Where the law gives you greater data access or portability rights, we'll comply with them, however these terms classify the data. If a government agency or anyone else funds or subsidises your Hardware or Connectivity, but you remain the customer under these terms, that doesn’t give them any right to access Your Data. We’ll share Your Data with them only if you ask us to (for example, to meet a funding programme’s reporting requirements) or the law requires it.
10.8
Your Data when these terms end. You can request a copy of Your Data by emailing eshepherd.support@gallagher.com within 60 days after these terms end, and we'll use reasonable efforts to provide it within 30 days, in CSV or another standard format. Where the law allows, we may charge a reasonable fee, notified in advance, for complex requests. After that 60-day period, and once any pending request has been completed, we may delete Your Data, unless we need to keep it for legal, regulatory, security or record-keeping purposes or may keep using it under clause 10.5.
11Privacy and security
11.1
Privacy. The Privacy Statement forms part of these terms. It explains how Gallagher Group companies handle Personal Data, each party's role under data protection law, where data is stored and how we protect cross-border transfers. Each of us must comply with the privacy laws that apply to us. Unless the Privacy Statement says otherwise, each of us acts as an independent controller of the Personal Data it handles in connection with the Service. Before Gallagher Group starts storing Your Data in a country not identified in the Privacy Statement, we'll update the Privacy Statement and put in place any safeguards the law requires.
11.2
Your privacy responsibilities. Before you give us Personal Data about anyone, or make them an Authorised User, you must make sure they've received appropriate notice, including a link to the Privacy Statement. You must not use Personal Data from the Service for unrelated purposes without a separate lawful basis, and you must reasonably help us with any data-subject request, regulator enquiry or security investigation relating to your account.
11.3
Security. We maintain reasonable security measures, and we'll tell you without undue delay about any security incident affecting Personal Data in your account, and give you the information you reasonably need to meet your own legal obligations. You must tell us promptly about any security issue affecting your account and about any actual or suspected breach involving Personal Data processed through the Service, and take reasonable steps to contain it and preserve relevant information.
12Intellectual property and confidentiality
12.1
Our intellectual property. Gallagher Group and its licensors own all intellectual property in the Service, Firmware, Documentation, software, interfaces, APIs, algorithms, models, designs, databases, branding and related technology, including updates, improvements and derivative works. Apart from the rights these terms give you, no IP rights transfer to you.
12.2
Feedback. If you or your Authorised Users give us suggestions, ideas or other feedback about the System, you give the Gallagher Group a perpetual, irrevocable, worldwide, royalty-free licence to use, copy, modify and build that feedback into its products and services without owing you payment. This doesn't affect your ownership of Your Data or of IP you developed independently, and we won’t publicly attribute feedback to you without your consent.
12.3
Confidentiality. Each of us must protect the other's Confidential Information with reasonable care and use it only to perform obligations or exercise rights under these terms. We may each share it with personnel, advisers, insurers, group companies, service providers and genuine purchasers who are bound by confidentiality, or where the law requires. Where legally permitted, a party required by law to disclose the other's Confidential Information must give reasonable advance notice. This doesn't apply to information that's public, already known, independently developed or lawfully received from someone else.
13Warranties and the nature of virtual fencing
13.1
What we promise, and what we don't. We'll provide the Service with reasonable care and skill. Subject to clause 13.4, we don't promise that the Service will be uninterrupted, error-free or suitable for every property, animal or legal requirement, that coverage will be available at your location, or that alerts and reports will always be accurate, complete or received in time. To the extent the law allows, we exclude all other warranties, including implied warranties of merchantability, satisfactory quality, fitness for purpose and non-infringement.
13.2
Virtual fencing is not a physical barrier. The eShepherd System is a livestock management tool, not a physical barrier. No virtual fencing system can guarantee containment, animal behaviour or uninterrupted operation. Performance may be affected by animal behaviour, health and training, terrain, weather, network and GPS coverage, power, Hardware condition and fit, how you configure and use the System, and other factors outside our control. A virtual fence being crossed, or livestock escaping or straying, is not by itself a breach of these terms or negligence on our part. You remain responsible for all livestock management and containment decisions.
13.3
No professional advice. Alerts, reports and recommendations that the System displays to you are informational tools. They aren't veterinary, agricultural, animal welfare, legal or other professional advice.
13.4
Rights that can’t be excluded. Nothing in these terms excludes, restricts or modifies rights or remedies you have under law that can't lawfully be excluded, restricted or modified. Any term that would do so is read down to the minimum extent necessary or doesn't apply to you. The Country-specific terms in clause 17 may also apply.
14Liability and indemnity
14.1
How this clause applies. This clause applies to all claims under or in connection with these terms, however they arise (including in negligence), subject to clause 13.4. Here, we and us include every Gallagher Group company involved in the Service and their officers, employees, contractors and licensors, and one combined limit applies to all of them. It doesn't make anyone liable who otherwise wouldn't be.
14.2
Losses neither of us is liable for. Subject to clause 14.4, neither of us is liable to the other for loss of profit, revenue or savings; loss of business, contracts, goodwill or data; business interruption or management time; indirect or consequential loss; fines, penalties or punitive damages; or any loss the affected party could reasonably have avoided or reduced.
14.3
Our liability cap. Subject to clause 14.4, our total liability to you and your Authorised Users together, for all events occurring in the same Contract Year, is limited to the total amount paid or payable to Gallagher Group companies for the eShepherd System (including Connectivity Charges, Add-On fees and Hardware prices) in the 12 months before the first of those events. If the first of those events occurs in the first Contract Year, the limit is instead the total amount paid or payable to Gallagher Group companies for the eShepherd System for that first Contract Year. A series of related events, or an event that continues over time, is treated as one event occurring when it first occurs. A Contract Year is each 12-month period starting on the earlier of the date you first accept these terms and the date your first Hardware is delivered. This is a single cap for all Gallagher Group companies, shared with the caps in the Hardware Purchase Terms and the User Terms. It is not a separate cap for each agreement, company or user.
14.4
When the exclusions and cap don't apply. The exclusions and cap in this clause don't apply to liability for death or personal injury caused by negligence, fraud, wilful misconduct, deliberate or reckless breach of confidentiality, wilful infringement of the other party's intellectual property, or anything else that can't lawfully be excluded or limited.
14.5
Your indemnity. To the extent the law allows, you indemnify each Gallagher Group company against losses, damages and reasonable costs it incurs from a third-party claim, to the extent the claim arises from: (a) your or an Authorised User's breach of these terms or misuse of the Service or System; or (b) your failure to comply with the law, including animal welfare, fencing and livestock control laws (for example, livestock straying onto a road because containment required by law wasn't in place). Your liability under this clause is reduced to the extent that a Gallagher Group company's negligence or breach of these terms caused or contributed to the claim. If we want to rely on this clause, we'll tell you promptly about the claim, and act reasonably in incurring costs you'll be responsible for. You must give us reasonable help with the claim and must not, without our consent, make any admission or statement about it that could prejudice our defence. If the same claimant also claims against you, you can settle that claim, but not on terms that admit fault on our part or affect our rights.
14.6
Insurance and reducing loss. You should keep appropriate insurance for your livestock and farming operations, including cover for technology or equipment failure where available, and talk to your insurer before deploying the System. Each of us must take reasonable steps to reduce loss (for you, including responding to alerts and keeping alternative containment arrangements). No one can recover twice for the same loss, including under the Hardware Purchase Terms or the User Terms, or by claiming against another Gallagher Group company or an eShepherd Partner.
15General
15.1
Events outside our control. Neither of us is responsible for failure or delay caused by events genuinely beyond our reasonable control, such as natural disasters, pandemics, government action, war or failure of public telecommunications, internet, power or satellite infrastructure (including a supplier’s service where the failure is itself caused by an event of this kind or affects suppliers generally). This doesn't excuse payments already due or your livestock welfare obligations. The affected party must notify the other promptly and work to resume. If the event lasts more than 90 days, either of us may end the affected Service on 14 days' notice.
15.2
Transferring these terms. You need our written consent to transfer these terms, except to a buyer or successor of your farming operation, if you give us 30 days' notice, there's no outstanding breach or unpaid amount, and the buyer accepts these terms and registers an account. We may object on reasonable grounds within 14 days; otherwise the transfer can proceed. You remain liable for obligations that arose before the transfer. We may transfer these terms within the Gallagher Group or in a genuine sale or restructure, and we'll tell you within 30 days. We may subcontract but remain responsible for our obligations.
15.3
Resolving disputes
(a)
Talk to us first. If either of us has a dispute, we'll tell the other in writing, and people with authority to settle it will try in good faith to resolve it within 30 days (or any longer period set out in clause 17 for your country).
(b)
Where disputes go. If it isn't resolved, the dispute will be decided by the courts or by arbitration, as shown for your country in the table in clause 15.4, and under any additional terms for your country in clause 17.
(c)
Always available. Whatever process applies, either of us may bring a claim in a small claims court or tribunal, bring proceedings to recover amounts that aren't genuinely disputed, or seek urgent injunctive or interim relief from any court.
(d)
Applying these terms. Any arbitrator must decide the dispute in accordance with these terms and the applicable law, including clause 14.
(e)
Public sector customers. If you're a government agency, public university or other public body, and the law that applies to you doesn't allow you to agree to arbitration, a class action or jury trial waiver, an indemnity, or the governing law or courts in clause 15.4, those terms apply to you only to the extent that law allows, and disputes will be resolved as that law requires.
(f)
Keep performing. We'll each keep performing these terms while a dispute is being resolved.
(g)
Related disputes. If a dispute under these terms is related to a dispute between you and a Gallagher Group company under the Hardware Purchase Terms, or between a Gallagher Group company and one of your Authorised Users under the User Terms, and the same process applies to both under clause 15.4 and those terms, you and we consent to both being heard together in the same proceeding, and either of us may ask the court or arbitrator to do so.
15.4
Contracting entity, governing law and disputes. Unless your Order Form says otherwise, the table below shows the Gallagher Group company you contract with and where to send it notices, the law that governs these terms, and how disputes are decided for your country. If your country isn't listed, the “All other countries” row applies. Where the table refers to courts, their jurisdiction is non-exclusive unless the table says otherwise. Clause 15.3(c) (small claims, undisputed amounts and urgent relief) and clause 15.3(e) (public sector customers) apply in every country. The UN Convention on Contracts for the International Sale of Goods doesn't apply.
| Your country | Gallagher Group company | Notice address | Governing law | How disputes are decided |
|---|---|---|---|---|
| New Zealand | Gallagher Group Limited, company number 194068 | 181 Kahikatea Drive, Hamilton 3206, New Zealand | New Zealand | Courts of New Zealand |
| Australia | Gallagher Australia Pty Ltd, ACN 005 550 845 | 65 Scanlon Drive, Epping VIC 3076, Australia | Victoria, Australia | Courts of Victoria |
| United Kingdom | Gallagher Europe BV | Bornholmstraat 62a, 9723 AZ Groningen, the Netherlands | England and Wales | Courts of England and Wales |
| EEA | Gallagher Europe BV | Bornholmstraat 62a, 9723 AZ Groningen, the Netherlands | The Netherlands | Courts of Amsterdam |
| United States | Gallagher North America Inc | 5005 NW 41st Street, Riverside, MO 64150, United States | Missouri, USA | Individual arbitration by JAMS, seated in Kansas City, Missouri. |
| Canada | Gallagher Power Fencing Systems Inc | 2090 20th Avenue East, Owen Sound, Ontario N4K 5R1, Canada | Ontario, Canada | Courts of Ontario |
| All other countries | Gallagher Group Limited, company number 194068 | 181 Kahikatea Drive, Hamilton 3206, New Zealand | New Zealand | ICC arbitration seated in Auckland, New Zealand; courts of your country for claims of less than NZD 100,000 |
15.5
Notices
(a)
We’ll send notices to the contact details in your account or through the Service. An email is given when sent, unless we receive a delivery-failure message within 24 hours. A notice through the Service is given when it’s made available in your account. A posted notice is given 7 days after posting (14 days if international).
(b)
Notices of legal proceedings must be sent by email and confirmed by post on the same day.
(c)
If your account language isn’t English, we’ll use reasonable efforts to give notices of material changes in that language, but if we don’t, the notice is still valid.
(d)
Routine alerts aren’t formal notices.
Formal notices to us must be in writing to the address in clause 15.4, copied to the Chief Legal & Risk Officer at legal@gallagher.com.
You agree to receive communications electronically, and these terms and any Order Form may be accepted or signed electronically.
15.6
Gallagher Group companies can rely on these terms. Each Gallagher Group company may enforce the following provisions of these terms, subject to the same limits as Gallagher, as an intended beneficiary under the Contract and Commercial Law Act 2017 (NZ), the Contracts (Rights of Third Parties) Act 1999 (UK) and any equivalent law: (a) provisions that limit how you may use the Service, Firmware, Hardware or Gallagher Group technology, or that protect Gallagher Group intellectual property, data, confidentiality or security; (b) provisions that require you to give us help, information or access; and (c) provisions that exclude, limit or relieve liability or warranties, or give an indemnity. If the law doesn't give a Gallagher Group company a direct right to enforce a provision, we hold the benefit of that provision on trust for that company and will enforce it at its request. We can vary or end these terms without the consent of any Gallagher Group company. Otherwise, no one else has rights under these terms, other than the data holder under the EU Data Annex.
15.7
Other legal matters. These terms and the documents they incorporate or refer to as applying are our entire agreement about the Service and replace all earlier communications on that subject. Terms in your purchase order don’t apply unless we expressly accept them in writing. Waivers must be in writing, and delay in enforcing a right isn't a waiver. Invalid terms are read down or severed to the minimum extent necessary. We are independent contractors.
15.8
Language. These terms were written in English. If we give you a translation, it’s for convenience only, and if there’s any inconsistency, the English version applies, unless the law requires otherwise.
16Definitions and interpretation
16.1
Definitions. In these terms:
Active Month has the meaning given in clause 4.3.
Add-On means a feature, service or functionality we make available separately from the features included with Connectivity, which you choose to activate and which may need an additional fee, additional hardware or Product Terms. A Core Function is never an Add-On.
Aggregated Data has the meaning given in clause 10.4.
Authorised User means a person you authorise to use the Service through your account, such as an employee, contractor or adviser.
Base Station means the wireless communications unit that connects Neckbands to the Service.
Confidential Information means information one party discloses to the other in connection with these terms that is marked confidential or that a reasonable person would understand to be confidential. For us, it includes the Service's source code, algorithms, architecture, security measures, pricing and commercial models, roadmap and System Data (other than System Data the Service displays to you). For you, it includes Your Data and your farm operational, livestock and financial records.
Connectivity means the part of the Service that lets registered Hardware communicate with the Service.
Connectivity Charge has the meaning given in clause 4.3.
Contract Year has the meaning given in clause 14.3.
Core Functions has the meaning given in clause 4.1.
Documentation means the user guides, training materials, specifications, instructions and safety guidance we make available for the System, as updated from time to time.
eShepherd Partner means a third party authorised by a Gallagher Group company to sell Hardware or provide support services.
Firmware means software embedded in, installed on or delivered to Hardware by or on behalf of any Gallagher Group company, including updates, patches and new versions.
Fixed Period has the meaning given in clause 4.5.
Gallagher, we, us and our mean the Gallagher Group company you contract with under clause 15.4 and, in clause 14, have the extended meaning given in clause 14.1. We may exercise our rights and perform our obligations through other Gallagher Group companies and our service providers, and we remain responsible for them.
Gallagher Group means Gallagher Group Limited and its subsidiaries and affiliates from time to time, including the company that operates the Service.
Hardware means physical eShepherd equipment, including Neckbands, Base Stations, magnet keys and related accessories.
Hibernation has the meaning given in clause 4.4.
Neckband means an eShepherd GPS-enabled virtual fencing neckband fitted to livestock, however configured (including cellular or LoRa).
Order Form means a written or electronic order, checkout confirmation or other ordering document that records your commercial terms and is accepted by both parties.
Personal Data means personal information, personal data or the equivalent concept under the privacy or data protection law that applies.
Privacy Statement means the eShepherd privacy statement available on our website, as updated from time to time.
Product Lifecycle and Support Commitment means the eShepherd Product Lifecycle and Support Commitment available on our website, as updated in accordance with its terms.
Product Terms means additional terms for a particular Add-On, product or feature.
Purchase Terms means the eShepherd Hardware Purchase Terms available on our website for Hardware bought from a Gallagher Group company, or the eShepherd Partner's terms of sale for Hardware bought from a partner.
Service means the eShepherd cloud-based virtual fencing service, including web and mobile apps, Connectivity, backend services, Firmware updates and any Add-Ons.
Signed Agreement means a separate written agreement for the Service, Hardware or the System signed (including electronically) by you and a Gallagher Group company.
System means the Service and Hardware operating together as an integrated livestock management solution.
System Data has the meaning given in clause 10.2.
Third-Party Integration means a third-party app, platform or service you connect to, or exchange data with through, the Service.
User Terms means the eShepherd User Terms available on our website.
you and your mean the customer that accepts these terms, including any company, partnership, trust or other entity on whose behalf they are accepted.
Your Data has the meaning given in clause 10.1.
16.2
Interpretation. Headings are for convenience only and don't affect interpretation. The “Important things to know” summary is for convenience only and isn’t part of these terms. Words like “including” don't limit the words that follow. The singular includes the plural and the other way around. A reference to a law includes that law as amended or replaced.
17Country-specific terms
These terms apply where relevant to your country. If they conflict with the rest of these terms, they take priority for that country.
17.1
Australia
The System is supplied for commercial farming, not personal, domestic or household use. However, guarantees under the Australian Consumer Law may still apply and can't be excluded. For major failures with the Service, you're entitled to cancel your Service contract with us and to a refund for the unused portion, or to compensation for its reduced value. You're also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure isn't a major failure, you're entitled to have problems with the Service rectified in a reasonable time and, if that isn't done, to cancel your contract and obtain a refund for the unused portion.
Where the law allows our liability for a non-excludable guarantee to be limited, it's limited, at our option, to supplying the services again or paying the cost of having them supplied again, unless that wouldn't be fair or reasonable.
17.2
New Zealand
Nothing in these terms excludes, restricts or modifies any right or remedy under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or other law that can't lawfully be excluded, restricted or modified.
If you acquire Connectivity and access to the Service for the purposes of a business, the parties agree, for the purposes of section 43(2) of the Consumer Guarantees Act 1993, that the Consumer Guarantees Act doesn't apply. For the purposes of section 5D of the Fair Trading Act 1986, the parties agree that the Service is supplied and acquired in trade, both parties are in trade, sections 9, 12A, 13 and 14(1) of that Act don't apply, and it is fair and reasonable that the parties are bound by this clause.
17.3
United Kingdom and EEA
The System is supplied for commercial farming, not personal use. If UK or EEA consumer law applies anyway, nothing in these terms limits rights under it that can't lawfully be excluded, including pre-contractual information rights and any right of withdrawal.
If you’re located in the European Union, or your Hardware is registered and used there, nothing in clause 14.2 or 14.3 limits our liability for intent or gross negligence, or for any other liability that can’t be excluded or limited under the law that applies to these terms.
If you're located in the European Union, or your Hardware is registered and used there, the eShepherd EU Data Annex made available to you on our website also applies to you and forms part of these terms. It explains your rights under the EU Data Act and, if it conflicts with anything else in these terms, the Annex applies.
17.4
United States
The System is supplied for commercial farming, not personal use. Where a state doesn't allow implied warranties, or incidental or consequential damages, to be excluded or limited, our exclusions and limits apply only as far as that law permits.
Where automatic renewal or consumer protection laws apply, we'll clearly disclose the recurring nature, amount and frequency of the Connectivity Charge, get your affirmative consent before charging, send any required reminders, and provide a simple online cancellation method (see clause 5.3).
Arbitration agreement. Please read this carefully. It means disputes are decided by an arbitrator, not a judge or jury, and you can't bring or take part in a class action.
(a)
Arbitration. Subject to clause 15.3(c), any dispute between you and us arising out of or in connection with these terms or the Service, including whether this clause applies or is valid, will be resolved by binding arbitration administered by JAMS under its applicable rules, before a single arbitrator, seated in Kansas City, Missouri. Hearings may be held by video.
(b)
Individual claims only. Claims may only be brought individually, not as part of any class, collective or representative proceeding, and the arbitrator may not award relief on a class basis. If this paragraph is found unenforceable for a claim, that claim will be decided by a court, without a jury to the extent the law allows, and not in arbitration.
(c)
Fees. For claims of US$25,000 or less, we'll pay the JAMS fees above what you would pay to file a claim in court. Otherwise, fees are shared as the JAMS rules provide. Each of us pays our own legal costs unless the law or the arbitrator decides otherwise.
(d)
Other terms. The Federal Arbitration Act governs this clause. Changes to this clause won't apply to disputes that have already arisen.
17.5
Canada
The System is supplied for commercial farming, not personal use. Where a province doesn't allow implied warranties, or incidental or consequential damages, to be excluded or limited, our exclusions and limits apply only as far as that law permits. Where consumer protection laws apply, we'll clearly disclose the recurring nature, amount and frequency of the Connectivity Charge and provide a simple way to cancel.
17.6
Latin America, South Africa and other countries
This clause applies if your country is covered by the “All other countries” row in the table in clause 15.4.
(a)
Arbitration. Subject to clause 15.3(c), any dispute between you and us arising out of or in connection with these terms or the Service, including about their formation, validity, interpretation, performance, breach or termination, and any non-contractual claim, will be finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce, before a single arbitrator. The ICC Expedited Procedure Provisions apply where the ICC Rules provide for them.
(b)
Seat, language and hearings. The seat of arbitration is Auckland, New Zealand and the language is English, although the arbitrator may allow documents and evidence in Spanish or Portuguese. Hearings will be held by video unless the arbitrator decides otherwise. Judgment on an award may be entered in any court with jurisdiction.
(c)
Local courts for smaller claims. Either of us may instead bring a claim for less than NZD 100,000 (or its equivalent) in the courts of the country where you're located.
You've reached the end of these terms. Thanks for reading them.