Agriculture

Summary of state of play and policy context

Farming in the 21st century has taken a giant leap forward in terms of innovation and technological sophistication, and virtually all agricultural activities are now to a significant extent driven by data. So-called agri-tech companies provide support to all stakeholders in the agricultural value chain, and – much like in any other sector – larger platforms and agricultural data hubs increasingly act as intermediaries that connect different links in the value chain, and add a degree of analysis and insight to agricultural data repositories that would be hard to achieve for any individual farmer.

From a European policy perspective, the agricultural industry is one of the sectors targeted by the European strategy for data 1 . The Commission’s February 2020 Communication on A European strategy for data 2 recognised agriculture’s critical strategical role, and stressed the need for a “Common European agriculture data space, to enhance the sustainability performance and competitiveness of the agricultural sector through the processing and analysis of production and other data, allowing for precise and tailored application of production approaches at farm level”.

Agricultural data is recognised in the strategy as a key element to enhance the sustainability, performance and competitiveness of the agricultural sector, that allows for precise and tailored application of production approaches at the farm level. Moreover, the importance of fair contractual terms in setting about such a data space was explicitly called out in the strategy, noting that “a neutral platform for sharing and pooling agricultural data, including both private and public data” should create “an innovative data-driven ecosystem based on fair contractual relations as well as strengthen the capacities for monitoring and implementing common policies and reducing administrative burden for government and beneficiaries”.

This vision already had already received significant Member State support, since 25 Member States in 2019 signed a declaration of cooperation on ‘A smart and sustainable digital future for European agriculture and rural areas 3 .

The agricultural industry in Europe is similarly well aware of the importance of data, and of the need to ensure that farmers receive a fair contractual deal when they sign up to agri-tech services and agricultural data hubs. In 2018, the industry association COPA-COGECA (grouping farmers and agricultural cooperatives produced their first draft of an EU Code of conduct on agricultural data sharing by contractual agreement, which was updated in 2019 4 . The Code cautions against contractual practices that can disadvantage so-called data originators (i.e. the entities that have the right to license access and use of the data, generally farmers), including data misuse, unfair trade practices, and breaches of IP rights. The Code applies to a broad range of data types, such as farm data (agronomic data, compliance data and livestock data), machine data, service data and agri-supply data.

Apart from the broader context and use cases that it provides, the Code is also useful for its statement of key legal principles for a balanced contract. This comprises sections with guidance on how to deal with challenges in relation to attribution of the underlying rights to derive data; data access, control and portability; data protection and transparency; privacy and security; and liability and intellectual property rights.

The Code has significant support in practice. Apart from its formal adoption by COPA-COGECA, it is also recognised as an important input for two large scale pilot projects operated with EU support, ATLAS 5 and DEMETER 6 , both of which aim to facilitate agricultural data sharing and re-use across a broad value chain – and both of which recognise that the farmers that provide the data (the data originators in terms of the Code) should be able to control access to and use of their data. As a result, data control and access/usage rights management are priorities in these initiatives.

Generally, the agricultural sector’s specific characteristics and challenges in relation to data sharing relate to the critical strategic societal interest of the data (both for private parties, for the public sector and for society as a whole), and the vulnerability of farmers to abuses due to their technological dependence on external service providers who can easily build a critical mass of commercially highly valuable data. As a result, there seems to be a trend towards building agricultural data hubs with a broad range of intelligent services around them, and a strong focus on entrusting control over data access and use for each individual farmer.

Clauses per topic

Scoping of the Data

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to a centralised data platform that automatically collects agricultural data provided directly by the equipment sold by the platform operator. I.e. the platform operator also sells the equipment, such as agricultural machinery.

We collect different types of data depending on the specific services, subscriptions, and tools that you use and how you use them. For example:

Machine Data.

If you use our [x] services and tools, we will collect data indicating your machine’s health, efficiency and functions, including diagnostic codes, machine settings, software and firmware versions, attachments and implements, machine hours and lifetime usage, and machine location. You can see some of this data in the [x] Dashboard, and our mobile apps.

Operational Data.

If you use the [x] Operations Center and related applications, we may collect information about the way you and others use your machines, including settings, throughput, and sensor readings, and we may also collect information about your work and operations, including field task details, area worked, route travelled, crop harvested and yield data, inputs applied, and historical information and reports. You can see and manage this data in the [x] Operations Center and linked applications.

Administrative Data.

Whenever you or your staff use our services and applications, we collect information that helps us administer your account and activities. This data includes data sharing permissions, users linked to your account, machines, devices, and licenses linked to your account, number of acres and size and nature of fields, and general information about the way you use your account and our applications. You can see and manage some of this information in the [x] Operations Center and linked applications.

Advantages of this clause include:

Relatively comprehensive coverage and representative of the type of data that would be covered.

Disadvantages of this clause include:

Vague on the actual data sharing activities, since the phrasing is exemplative (‘may’, ‘includes’). This increases flexibility for the platform operator, but reduces certainty for the customer.

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

“Licensee Content” means any data and information distributed or submitted electronically or otherwise by you via the Software, including but not limited to, data, soil information, equipment information and data, agricultural data, inventory information and shipping information. For clarity, the “Licensee Content” does not include data generated or collected from weather stations installed or used by [x] in accordance with any separate transaction agreement between you and [x].

“Results” means any and all results, reports and recommendations based on the Licensee Content, weather data, user data, geo-reference data, analytics and/or user data results that [x] prepares or generates, including ratios, soil samples, zone calculations, nutrient prescriptions, controller prescription files, field boundary delineations, weather information, equipment data, soil results, grid setups, prescription maps, imagery, lab results indicators and soil performance of a farm. The term “Results” shall also include any modification or enhancement to the Licensee Content and any Intellectual Property relating thereto by [x], and any Intellectual Property made, conceived, acquired, suggested, discovered, derived or developed by [x], or under [x]’s direction, either solely or jointly with others, which relates to, relies on, contains or uses the Licensee Content or the Software, or both, and all Intellectual Property relating thereto.

Advantages of this clause include:

Functional and flexible; evolves automatically as the scope of the software platform changes. Makes a distinction between data provided by the data sharer and data provided by third parties. Makes a distinction between data provided by the data sharer and new or extended data that was built on top of the sharer’s data.

Disadvantages of this clause include:

Vague on the actual data sharing activities, since the phrasing is exemplative and evolutive (‘including but not limited to’). This increases flexibility for the platform operator, but reduces certainty for the customer.

Real-life clause for scoping in a contract without remuneration

Context: the clause relates to a cloud based agricultural data sharing platform, available on a subscription model.

Agriculturist mean(s) the agriculturist or agricultural company identified by its company (or VAT number) and which has entered into a commercial agreement with [X] to publish Data via the Platform in accordance with the applicable commercial agreement and the Terms of Use, however, other than in a capacity as Data Provider.

Data means the data offered or uploaded by the User on the Platform (via a (data) API) and which is shared with others and made available to others in accordance with this Agreement and the Terms of Use.

Data Provider(s) mean(s) the organization that is identified by its company or VAT number and that has concluded a commercial agreement with [X] to offer and publish Data via the Platform in accordance with the applicable commercial agreement and the Terms of Use.

Data Recipient(s) mean(s) the organization that is identified by its company or VAT number and that has concluded a commercial agreement with [X] to obtain and receive Data via the Platform in accordance with the applicable commercial agreement and the Terms of Use.

Request means the request of a Data Recipient to receive Data in which the details about the use of the Data by the Data Recipient are included.

User(s) mean(s) the employees or permitted contractors of the Customer, the relevant Agriculturist, the relevant Data Provider or the relevant Data Recipient (as applicable) to whom the Platform will be made available and who will be able to use the Platform on behalf of the Customer, the relevant Agriculturist, the relevant Data Provider or the relevant Data Recipient (as applicable). The User shall be entitled to use the Platform in accordance with the roles assigned to such and subject to the Terms of Use.

Advantages of this clause include:

Functional and flexible; evolves automatically as the scope of the software platform changes. Makes a distinction between the different roles of the stakeholders involved.

Disadvantages of this clause include:

N.A.

Model clause for scoping in a contract against remuneration

Context: the clause is intended for situations where data can be collected related to agricultural machines, agricultural output, and administrative information. It distinguishes between Customer Data (obtained from the customer) and Business Insights (which may be derived from Customer Data, but is not directly or exclusively obtained from the customer).

During the provision of services and the use of our products, we will collect and generate different types of data depending on the specific services and products, and on your use of them.

Customer Data relates to any type of information provided by you to us, or observed by us in relation to you, including any data generated by our services and products that you choose to use.

Customer Data includes notably:

  • Machine Data. During the use of our products and services, our machines generate data in relation to their operation and the use you make of them. Such Machine Data will be submitted automatically to us when you use them, including configurations, settings, preferences, diagnostic messages, usage metrics, software, and geographic location.
  • Agricultural Data. During the use of our products and services, data will be provided and generated in relation to your agricultural activity and outputs. Such Agricultural Data will be submitted automatically to us when you use our products and services, including crop types, crop yields, area size, crop activity, activities undertaken in relation to the crop and area, and environmental circumstances.
  • Administrative Data. During the use of our products and services, data will be provided and generated in relation to you, your users and your activities. This includes user identities, authorisations, activity times, activity duration, activity type, licenses and permissions, and general information about the way you use your account and our applications.

For a more detailed overview of collected Customer Data, please refer to the most recent version of our online manual, available at [x].

In addition, as a part of the use of our products and services, we will make Business Insights available to you. Business Insights refers to any data, information or knowledge that we obtain from third parties and make available to you, and any personalised information that we make available to you that was generated at least partially on the basis of your Customer Data.


Modalities of sharing

Real-life clause for continuous data sharing in a contract against remuneration

Context: the clause relates to a centralised data platform that automatically collects agricultural data provided directly by the equipment sold by the platform operator. I.e. the platform operator also sells the equipment, such as agricultural machinery.

YOU CONTROL WHO SEES YOUR DATA

Here are your options for controlling your account information when you use [x]'s Data Services and Subscriptions:

SHARING

You may share and disclose data in the [x] Operations Center and other connected portals and apps. By setting permissions for your account, you control other parties’ access and visibility into your data. You also control which [x] dealers have access to data in your account.

Please note that when you share your information with someone other than [x], the recipient may decide to copy, use, modify, or distribute it to others, and [x] has no control over, or responsibility for, any such activities.

MANAGING

You may view, analyze, and manage most data in your account through the [x] Operations Center and Dashboard portals.

EXPORTING

You may download and export files from the [x] Operations Center and Dashboard.

Advantages of this clause include:

Emphasises the control rights/options of the data sharing entity and transparency in general. Contains an export (data portability) right.

Disadvantages of this clause include:

Emphatically excludes downstream data controls (which is transparent, but arguably suboptimal for the data sharing party). Data portability right is not contractually scoped.

Real-life clause for scoping in a contract without remuneration

Context: the clause relates to a cloud based agricultural data sharing platform, available on a subscription model.

3.1. Subject to the terms and conditions of this Agreement and timely payment of the applicable License Fees by the Customer, [X] hereby grants to the Customer a personal, restricted, non-transferable, non-assignable license, without the right to sublicense, to use the Platform to make the Platform available to its Users in accordance with the corresponding Terms of Use during the term of this Agreement. In case of any non-payment of the License Fees, the Customer (and its Users) shall no longer be entitled to use the Platform.

3.2. The extent of the licenses granted under this Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses under this Agreement. [X] reserves any rights not expressly granted to the Customer hereunder. The Customer shall comply with all applicable laws relating to the use of the Platform.

3.3. Unless to the extent permitted by this Agreement or applicable law, the Customer shall not directly or indirectly (including without limitation through the actions of any of its Users or other third party) (i) arrange or create derivative works based on the Platform without [X]’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Platform, or use the Platform on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (iii) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Platform or any part of them except as expressly provided in this Agreement; (iv) remove or alter any copyright or other proprietary notice on the Platform. Upon [X]’s request, the Customer shall provide [X] with such information, certifications and access to its systems as may be reasonably requested by [X] to verify compliance with the license terms and the restrictions on the use of the Platform as set forth herein.

3.4. The Customer or its Users may not provide access to the Platform to any third party other than the Users who need such access in connection with the performance of their responsibilities to the Customer, provided that:

3.4.1. The Customer has purchased sufficient user licenses , it being acknowledged that in general, one (1) user license per User should be purchased (hereafter each an “User License”);

3.4.2. Such use or access by the Users shall be subject always to the license terms set forth in this Agreement (including, but not limited to the terms of use as reference in clause 3.7 of this Agreement); and

3.4.3. Such Users have committed in writing to the confidentiality provisions set forth herein (or similar).

Advantages of this clause include:

Relatively open ended; allows new data sources to be integrated into the platform as required.

Disadvantages of this clause include:

Strongly IP centric; focuses on licences to the platform, rather than on the data as such.

Real-life clause for scoping in a contract with remuneration

Context: the clause relates to a cloud based agricultural data sharing platform, available on a subscription model.

6.1. Subject to the terms and conditions of this Agreement and the timely payment of the applicable Transaction Fees, the Customer shall be entitled to receive Data through the Platform as a Data Recipient.

6.2. The Customer undertakes not to use the Data received for any other purposes or by any other means than the purposes and means set out in the applicable Request and in accordance with this Agreement. In case the Customer enters into a separate agreement with other Agriculturist or Data Providers in respect of the Data provided pursuant to a certain Request (as further clarified in clause 2 of this Agreement), the Customer shall be solely responsible for its compliance with the terms and conditions of such separate agreement.

Advantages of this clause include:

Very open ended; allows new data sources to be integrated into the platform as required, depending on specific Requests that should be supported by the platform. Also allows monetisation, given the reference to the possibility of transactional fees.

Disadvantages of this clause include:

Depends on a case specific definition of Requests, which would require the definition of additional case sharing ontologies.

Real-life clause for scoping in a contract with remuneration

Context: the clause relates to a cloud based agricultural data sharing platform, available on a subscription model.

7.1. The Customer acknowledges and agrees that [X] shall be entitled to share the Data through the Platform with other Agriculturists, Data Providers, Data Recipients and Users in accordance with the terms of this Agreement and subject to the procedure set out in this clause .

7.2. The Customer shall be considered the Data Provider or Data Recipient for the purposes of the relevant Transaction (as applicable) depending on whether the Customer is the initiator or the recipient of the Request:

7.2.1. If a Data Recipient wishes to obtain the Data from an Agriculturist or a Data Provider, the Data Recipient shall submit a Request through the Platform. The Data Recipient undertakes to complete the Request in detail, in understandable language, so that the relevant Agriculturist or the relevant Data Provider is fully informed of the purposes for which the Data Recipient wishes to use the Data of the Agriculturist or the Data Provider, and so that the Agriculturist or the Data Provider can make an informed decision on the basis of this Request whether or not to share the Data.

The Customer expressly acknowledges and agrees that, in case the Customer is the initiator of a Request and thus the Data Recipient, each of its Users who has access to the Platform on behalf of the Customer shall be able to complete and submit a Request, for which the Customer shall remain responsible.

7.2.2. A Request shall include the following information (non-exhaustively):

- Name of the Data Recipient and name of the application;

- URL of the application (if desired and if applicable);

- Purposes for which the Data Recipient wishes to use the Data;

- From which Data Agriculturists or Data Providers the Data Recipient wishes to use Data;

- Which APIs from the Data Provider the Data Recipients wishes to use;

- Duration for which the Data Recipient wishes to use the Data.

7.2.3. In case the Data Recipient has finalized the Request, the Platform will forward this Request to the Agriculturists and Data Providers indicated in the Request in order to enable the Agriculturists and/or the Data Providers to assess whether they want to share their Data with the Data Recipients. An overview of the (outstanding) Requests is available in the account of the Users of the applicable Agriculturists or Data Providers. For each Request, the Users of the applicable Agriculturists or Data Providers will also receive a notification to the email address provided in the Account of the applicable User. Requests can be approved or rejected through the functionalities provided on the Platform.

7.2.4. In case the Request is approved by the Data Provider, the Request will be forwarded by the Platform to the Agriculturists indicated in the Request by the Data Recipients.

The Customer expressly acknowledges and agrees that, in case the Customer is the recipient of a Request and thus the Data Provider, each of its Users who has access to the Platform on behalf of the Customer shall be able to approve or reject a Request, for which the Customer shall remain responsible.

7.2.5. In case the Request is subsequently approved by the relevant Agriculturist, the Platform shall share the Data of this Agriculturist designated in the Request by the Data Recipient with the Data Recipient .

7.2.6. However, in case the Request is rejected by the relevant Agriculturist, the Platform shall not share the Data of this Agriculturist and the procedure for this Request (in respect of this Agriculturist) will be terminated.

7.2.7. However, in case the Request is not assessed by the Agriculturist, the Platform shall not share the Data of this Agriculturist and the Request (in respect of this Agriculturist) shall remain pending until the Request is approved or rejected by the Agriculturist or until the Request is withdrawn following an intervention of the Data Provider or the Data Recipient.

7.2.8. In case the Request is rejected by the relevant Data Provider, the Request will not be forwarded to the Agriculturist designated in the Request and the procedure will be completely terminated. In such case, the Platform shall not share any Data.

The Customer expressly acknowledges and agrees that, in case the Customer is the recipient of a Request and thus the Data Provider, each of its Users who has access to the Platform on behalf of the Customer shall be able to approve or reject a Request, for which the Customer shall remain responsible.

7.2.9. In case the Request is not assessed by the relevant Data Provider, the Platform shall not forward this Request, nor share any Data and the Request (in respect of this Data Provider) shall remain pending until the Request is approved or rejected by the Data Provider or until the Request is withdrawn following an intervention of the Data Recipient.

7.3. The Platform will not share Data without the consent of the applicable Agriculturist or Data Provider concerned. The Agriculturist and/or Data Provider shall at all times retain control over (i) which Data, (ii) with which Data Recipient and (iii) in accordance with which Request shall be shared.

7.4. [X] shall not share the Data itself other than through the Platform. The Data shall only be shared (automatically) through the Platform and in accordance with this Agreement.

Advantages of this clause include:

Very detailed and permission driven; allows control by the Agriculturist.

Disadvantages of this clause include:

Depends on a case specific definition of Requests, which would require the definition of additional case sharing ontologies.

Model clause in a contract against remuneration

Context: the clause is intended for situations where minimal data is shared automatically (as needed to enable the service/ products), but where additional sharing can be enabled in an opt-in model. The clauses assumes that Customer Data and Business Insights have been defined, as well as the subcategories of Machine Data, Agricultural Data, and Administrative Data; the model clause on scoping can be used for this purpose.

During the provision of services and the use of our products, some Customer Data will be shared with us automatically as you use the products and services. Specifically, our products and services will automatically provide us with any Administrative Data required by us to provide the services, to administer your account, and to defend our legal interests. Such automatic data sharing can only be terminated by terminating your Agreement.

Other Customer Data is shared with us by default (i.e. without any further action from your side), but can be switched off by you. Specifically, this relates to all Customer Data (including Machine Data and Agricultural Data) required to enable the products and services to function as advertised to you. You may terminate such data sharing through the interfaces built into our products and services, but in this instance, you must accept that the products and services may not function as advertised, and that no assurances on performance or effectiveness can be given. Furthermore, if you disable such data sharing, no personal Business Insights can be provided that take into account your Customer Data.

Finally, other Customer Data will be shared with us only if you choose to do so through the interfaces built into our products and services. In these instances, the interfaces will specify the types of Customer Data that will be shared, and the effect of sharing your Customer Data. Such data sharing can be halted at any time through the same interfaces.


Restrictions on use

Real-life clause defining restrictions in a contract against remuneration

Context: the clause relates to a centralised data platform that automatically collects agricultural data provided directly by the equipment sold by the platform operator. I.e. the platform operator also sells the equipment, such as agricultural machinery.

HOW WE USE YOUR DATA

TO SERVE YOU

We use your data, including your personal information, to provide you with contracted services and offerings and to administer your account. You can learn more about how we use your personal information, including the legal basis for using any personal information, in the [x] privacy statements for the applicable Data Service or by contacting us.

We may share your data with [x] affiliates and suppliers to provide you with contracted services and offerings and to administer your account, subject to appropriate contractual restrictions and security measures. These affiliates and suppliers have committed to protect your data consistent with this statement and all applicable privacy and other laws.

We may share your data with authorized [x] dealers so they can support you, unless you explicitly restrict access to specific dealers.

TO LEARN FROM YOU

We may use your data to evaluate your use of our Data Services to assist with our development of new products and services, and to make improvements to our existing products and services. For example, analyzing your data may spotlight trends that inform our product support and development, warranty services, and diagnostic or prognostic activities.

We may combine your anonymized data with data from others and include your data in anonymized datasets. We may also share in aggregate, statistical form, non-personal information with our partners, affiliates or advertisers.

We may use your data to prepare routine reports to industry associations, such as reports on market share or network activity and security.

TO MARKET TO YOU

We may use your data to market products and services to you, targeting offerings to match your activity, interests, and location in accordance with applicable data privacy laws. We will communicate with you only according to the preferences you set for your account.

In accordance with the preferences you set for your account, we may share your data with [x] dealers so they can market products and services to you, targeting offerings to match your activity if you provide any applicable consent.

TO COMPLY WITH THE LAW

We share your data as required by applicable laws, including data privacy and consumer protection laws. Our privacy statements are linked below. We may review and disclose your data to comply with court orders and legal or regulatory requirements; to prevent injury, death, losses, fraud or abuse; to protect [x]'s rights or to defend [x] in legal proceedings; and to comply with requests from you. We may transfer your data as part of a transfer or sale of business assets.

Advantages of this clause include:

Fairly extensive and explicit. Covers reasonable but perhaps less intuitive usages (marketing and legal compliance needs). Does not seem to permit non-anonymised data sharing in a way that is harmful to the data provider.

Disadvantages of this clause include:

Marketing is permitted by default, which may not be desirable. Data sharing with unknown partners (dealers, affiliates and suppliers) is permitted by default, and contractual safeguards are not available to the user. Data can be exploited for the benefit of the platform operator (development of new products and services, identifying market trends, etc).

Real-life clause defining restrictions in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

4.2 Licences. The parties agree that:

(a) Subject to the terms and conditions of this EULA, [X] hereby grants to you a personal, revocable, non-exclusive, non-assignable, non-transferable, nonsublicenceable right and licence to access and use the Software and the Results for internal use and for agricultural purposes only and for the Term in accordance with this EULA (the “Licence”). The Licensee shall not use the Software and the Results for any purpose not expressly permitted under this EULA.

(b) Subject to the terms and conditions of this EULA, you hereby grant to [X], a royalty-free, fully-paid, perpetual, irrevocable, transferable, sublicenceable, worldwide and non-exclusive right and licence to access, reproduce, copy, distribute, aggregate, create derivative works of, adapt, translate, transmit, arrange, modify, host, bundle, and use the Licensee Content and any Intellectual Property relating thereto (i) in any format for the purpose of preparing or generating the Results and/or for providing the Results to you and/or for internal purposes and/or for research purposes; and (ii) in an aggregated format without the identification of any individual’s private information, for the purpose of providing the Results and all Intellectual Property relating thereto to third parties (collectively, the “Content Licence”).

Advantages of this clause include:

Bilateral – covers rights of the user to derived/expanded data, as well as rights of the service provider to the user’s data.

Disadvantages of this clause include:

Rights are not reciprocal: the user receives a right to use results ‘for internal use and agricultural purposes only’, but the service provider may use the user’s data also ‘for research purposes’, and may provide aggregate anonymous versions of this data to third parties.

Real-life clause defining restrictions in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

By uploading, publishing or making available any Subscriber File via the Platform's application programming interfaces or through a repository on the Platform, each Subscriber and its Supplier Users grant [X] a non-exclusive, free, royalty-free non-transferable and non-sublicensable licence for the duration of the Subscription, to use, reproduce, publish, distribute and display the Subscriber Files in whole or in part and to make representations thereof throughout the world on any medium, in compliance with applicable law, to provide services on the Platform and to generate statistics.

By uploading, publishing or making available any API Call or any Subscriber File via the Platform, each Subscriber and its Provider Users grant at least to the other Subscribers and Acquirer Users a non-exclusive, free, royalty-free, non-transferable and non-sub-licensable licence to access for the duration of the Transaction, use, store and reproduce the data provided through the API Calls and the Subscriber Files for personal and non-commercial purposes, with the exception of the data deposited on the API Calls and the Subscriber Files including personal data, which are subject to Article 11 of these General Terms and Conditions.

Nothing in these General Terms and Conditions shall be deemed to limit the Subscriber's rights of use or exploitation of the data deposited on the API Calls and Subscriber Files concerned.

The Subscriber or its Users may grant or assign to other Subscribers or Users any other license rights such as the right to modify, create derivative works from, distribute, publish, transmit, broadcast and otherwise exploit in any manner not provided for in this Article 8.3, on terms and conditions agreed between the Subscriber or its Users Suppliers and Subscribers or Users Data Purchasers.

Advantages of this clause include:

Focus – data usage rights are limited to the services of the platform and statistical analysis, as well as data sharing between users of the platform.

Disadvantages of this clause include:

Only non-commercial use is permitted, which is unusual for agricultural data.

Model clause in a contract against remuneration

Context: the clause is intended for situations where data can be used to ensure the correct functioning of the products and services, and to improve these. It also allows the creation of personalised knowledge (Business Insights) by default, although this can be disabled. The creation of aggregate statistical data is permitted as well. There is a general anti-abuse clause that forbids the use of the data (including statistical data) in a way that is directly detrimental to the business interests of the customer, including speculation and providing benefits to other customers that are not available to the data provider.

The clauses assumes that Customer Data and Business Insights have been defined, as well as the subcategories of Machine Data, Agricultural Data, and Administrative Data; the model clause on scoping can be used for this purpose.

Your Customer Data will be used by us to provide the services and products, to ensure their proper and safe functioning, to administer your account, and to defend our legal interests. Your Customer Data will also be used to maintain and improve the services and products, including by examining usage patterns.

Your Customer Data will furthermore be used to provide you with predictive maintenance, usage recommendations, and other Business Insights, unless you choose not to receive Business Insights through the interfaces built into our products and services.

We will not use your Customer Data, Business Insights related to you, or any statistical data inferred on the basis of your Customer Data, in a manner that is directly detrimental to your legitimate business interests (except when necessary to enforce this Agreement), or cause such use to happen. This includes use of your data by engaging in market speculation or by providing other customers with benefits on the basis of your Customer Data that are not available to you.


Restrictions on onward dissemination of data

Real-life clause on onward dissemination in a contract against remuneration

Context: the clause relates to a centralised data platform that automatically collects agricultural data provided directly by the equipment sold by the platform operator. I.e. the platform operator also sells the equipment, such as agricultural machinery.

We may share your data with [x] affiliates and suppliers to provide you with contracted services and offerings and to administer your account, subject to appropriate contractual restrictions and security measures. These affiliates and suppliers have committed to protect your data consistent with this statement and all applicable privacy and other laws.

We may share your data with authorized [x] dealers so they can support you, unless you explicitly restrict access to specific dealers.

We may combine your anonymized data with data from others and include your data in anonymized datasets. We may also share in aggregate, statistical form, non-personal information with our partners, affiliates or advertisers.

We may use your data to prepare routine reports to industry associations, such as reports on market share or network activity and security.

Advantages of this clause include:

Does not seem to permit non-anonymised data sharing in a way that is harmful to the data provider. Indicates that contractual safeguards will be demanded from the recipients. User gets some degree of control over data sharing.

Disadvantages of this clause include:

Data sharing with unknown partners (dealers, affiliates and suppliers) is permitted by default, and contractual safeguards are not available to the user. Anonymous reports can be provided to third parties; this can still be harmful to the interests of the user.

Model clause in a contract against remuneration

Context: the clause is intended for situations where data can be shared with third parties only for the purposes of providing the services or products (i.e. subcontractors or other service providers to the principal), or with the permission of the customer; this includes voluntary data sharing to third parties via APIs, as is explicitly supported by the model clause.

No trading or exchange to third parties for other purposes is permitted.

The clauses assumes that Customer Data and Business Insights have been defined, as well as the subcategories of Machine Data, Agricultural Data, and Administrative Data; the model clause on scoping can be used for this purpose.

Your Customer Data will not be sold to third parties, nor will it be made available to third parties except as set out herein.

We may make your Customer Data or Business Insights related to you available to third parties for the sole purpose of providing you with services or products as envisaged by this Agreement. Such third parties will be bound to us by contractual terms which ensure that your Customer Data or Business Insights related to you will not be used in a manner contrary to this Agreement.

In addition, we will make your Customer Data or Business Insights related to you available to third parties with your permission, including through APIs, web services, or other interfaces that we choose to support. Your permission can be granted through the interfaces built into our products and services. You may use the same interfaces to terminate third party access to that Customer Data or Business Insights. Note that use of your data by such third parties will be subject to their own terms and conditions, which may not be under our control, and which will not be subject exclusively to the terms of this Agreement.


Remuneration and consideration

Real-life clause on remuneration/consideration in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

Fees & Payment. [X] shall charge you and you shall pay to [X] a subscription fee which is already included in and forms part of any fees payable by you in any transaction agreement between you and [X] (the “Subscription Fee”). The Subscription Fee shall be paid in accordance with this EULA or any transaction agreement between you and [X], plus any applicable taxes (including any goods and services taxes), during the Term. [X] reserves the right to change at any time the Subscription Fee without any notice or liability to you or any other person. Any amounts remaining unpaid after the due date shall have interest charged thereon at the lower of the rate of 26.8% per annum or the maximum interest rate permitted by law. If and when applicable, you shall pay all taxes and any related interest or penalty howsoever designated and imposed as a result of the existence or operation of this EULA, the Results or the Software, except for taxes on the income or profits of [X].

Advantages of this clause include:

Relatively straightforward subscription based model.

Disadvantages of this clause include:

Fees may be unilaterally changed without constraints (no prior notice). Late fees exceed market standard rates.

Real-life clause on remuneration/consideration in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

13.1. The Customer shall pay (i) on a [frequency] the applicable License Fees in order to be entitled to use the Platform in accordance with the terms of this Agreement and (ii) the applicable Transaction Fee per Transaction in order to exchange Data in accordance with the terms of this Agreement.

13.2. Expenses (including travel (incl. local transport and flights), accommodation and out-of-pocket expenses) incurred by [X] in furtherance of this Agreement shall be charged to the Customer in addition to the Fees. Where reasonably possible, such expenses shall be subject to the Customer’s prior consent (such consent not to be unreasonably delayed or withheld) and shall be evidenced by receipts.

13.3. Undisputed invoices are due and payable by the Customer within thirty (30) days from the invoice date. All payments made by the Customer to [X] under this Agreement shall be final and non-refundable.

13.4. The amount of any invoice which has not been paid within thirty (30) days from the invoice date shall automatically be subject to a late payment interest equal to 1.5% per month or the maximum permitted by applicable law, which interest shall be compounded daily as of the due date until receipt of full payment by [X]. In addition, the Customer shall pay all costs incurred by [X] as a result of the (extra)judicial enforcement of the Customer’s payment obligations hereunder. If the Customer fails to pay any outstanding amounts within sixty (60) days from receipt of a written payment default notice, [X] shall be entitled to suspend its obligations and the Customer’s rights hereunder until receipt of payment of such outstanding amounts.

13.5. If the Customer disputes any portion of an invoice, the Customer shall notify [X] within fifteen (15) days from the invoice date of the nature of any such dispute, the basis for the Customer’s dispute and the amount involved, together with any appropriate information supporting Customer’s position, failure of which shall result in the invoice being deemed accepted by the Customer. The undisputed portion of the invoice shall be paid as set forth herein.

13.6. All Fees payable under this Agreement do not include any applicable value added tax or other taxes, which shall be additionally charged to the Customer.

13.7. [X] may annually increase the Fees payable hereunder with two percent (2%) with being the first contract year as the year of reference.

13.8. The License Fees shall be invoiced monthly on a “pay as you use basis”. [X] shall invoice the applicable number of User Licenses for each type of User License, provided, however, that [X] shall at all times be entitled to invoice the minimum number of User Licenses as agreed in Schedule 1 to this Agreement. In order to invoice the actual number and use of the User Licenses, [X] has the right to monitor and inspect the usage of the Platforms by the Customer (including but not limited to monitoring the number of Users) to ensure that the License Fees to be paid by the Customer are correct.

Advantages of this clause include:

Relatively straightforward subscription based model.

Disadvantages of this clause include:

N.A.

Model clause in a contract against remuneration

Context: the clause is intended for situations where a monthly fee is applied for the service as a whole. The fee includes access to Business Insights which can build on the customer’s own data.

The clauses assumes that Business Insights have been defined; the model clause on scoping can be used for this purpose.

In consideration for the use of our Service, including access to any Business Insights, you will be charged a monthly subscription fee of [x] EUR, excluding any VAT and applicable taxes, including any withholding taxes. The fee may be revised by us from time to time, as communicated by us to you in writing with a minimum of 30 days prior notice. You are deemed to have accepted such revisions if you do not respond within this notice period. If you do not accept such revisions, your sole recourse will be to terminate this Agreement.


Liability

Real-life clause on liability in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

The Subscriber is solely responsible for uploading, using and exploiting Subscriber Files and API Calls.

[X] may only be held liable in the event of proven fault and for foreseeable damage resulting from facts directly attributable to it in respect of services rendered on the Platform.

Consequently, [X] may not under any circumstances be held liable for any indirect or unforeseeable loss or damage of the Subscriber or third parties, including in particular any lost profit, loss, inaccuracy or corruption of files or data, commercial prejudice, loss of turnover or of profits, loss of opportunity, cost of obtaining a substitute product, service or technology, in relation to or arising from the non-performance or faulty performance of the services rendered on the Platform.

Except in the event of gross negligence or wilful misconduct, [X]'s liability in the event of failure to comply with the obligations provided for in these General Terms and Conditions, whatever the cause, shall be capped at the sum corresponding to half the price of the annual licence chosen, actually paid or due by the Subscriber for the year of the event giving rise to the damage.

Any liability action that may be brought by the Subscriber is time-barred within two (2) years from the event giving rise to the action. This conventional prescription remains subject to the causes of suspension and interruption under ordinary law.

Advantages of this clause include:

Comprehensive approach.

Disadvantages of this clause include:

Focused on excluding liability to a very broad extent, and under a relatively strict liability cap (half of the licensing fees).

Real-life clause on liability in a contract against remuneration

Context: the clause relates to a centralised data platform that automatically collects agricultural data provided directly by the equipment sold by the platform operator. I.e. the platform operator also sells the equipment, such as agricultural machinery.

6.1. Limitation of Liability and Remedies. Subject to any applicable “Country Specific Terms” set out below Table 1 in this Contract for Customer’s Contract Jurisdiction and to the extent permitted by applicable law: (i) [x]’s entire liability and Customer's sole and exclusive remedies for any damages arising from the performance or nonperformance under this Contract related to the use of the Service will be the remedies set forth herein; and (ii) [x] will not be liable for any loss or damage arising from Customer’s failure to comply with the provisions set forth in this Contract.

CUSTOMER ACKNOWLEDGES THAT THE FIELD CONNECT SERVICES ARE SUPPLIED ON A GOOD FAITH EFFORTS BASIS AND THAT SERVICE FAILURES AND INTERRUPTIONS MAY OCCUR AND ARE DIFFICULT TO ASSESS AS TO CAUSE OR RESULTING DAMAGES, AND CUSTOMER UNDERSTANDS THAT IT WILL BEAR ALL RESPONSIBILITY, RISK AND COST ASSOCIATED WITH DEVELOPING AND MAINTAINING ITS BUSINESS. CUSTOMER ACKNOWLEDGES THAT IT IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN ANY DEALER AND [X] OR BETWEEN [X] AND THE UNDERLYING WIRELESS PROVIDERS. CUSTOMER UNDERSTANDS AND AGREES THAT IN NO EVENT WILL [X] OR ANY OF ITS AFFILIATES, OR ANY UNDERLYING WIRELESS PROVIDERS OR ANY OF THEIR AFFILIATES HAVE ANY LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER, ANY EMPLOYEE OF CUSTOMER, OR ANY THIRD PARTY USING FIELD CONNECT SERVICES THROUGH CUSTOMER IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, AND INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, UNAVAILABILITY, DELAY, FAULTINESS OR FAILURE OF [X]’S OR ANY UNDERLYING WIRELESS PROVIDERS’ SYSTEMS OR ANY PART THEREOF PROVIDED UNDER THIS CONTRACT, EVEN IF ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES AND CUSTOMER HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIMS FOR SUCH DAMAGES. TO THE EXTENT NOT EXCLUDED BY THE FOREGOING, CUSTOMER’S EXCLUSIVE REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THE FIELD CONNECT PRODUCTS, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF FIELD CONNECT SERVICES PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).

CUSTOMER UNDERSTANDS THAT [X] AND THE UNDERLYING WIRELESS PROVIDERS CANNOT GUARANTEE THE SECURITY OR RELIABILITY OF WIRELESS TRANSMISSIONS, AND [X] AND THE UNDERLYING WIRELESS PROVIDERS WILL NOT BE LIABLE FOR ANY LACK OF SECURITY OR RELIABILITY RELATING TO THE USE OF THE SERVICES.

CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY WIRELESS COVERAGE MAP INFORMATION MIGHT DEPICT SOME FUTURE OR APPROXIMATE COVERAGE THAT MAY OR MAY NOT BE IDENTIFIED AS SUCH, AND THAT THE SERVICES MAY NOT BE AVAILABLE IN ALL AREAS DUE TO A VARIETY OF FACTORS INCLUDING:

PREFERRED ROAMING LIST (PRL) UPDATES, WIRELESS CARRIER FACILITIES CONSTRAINTS, TOPOGRAPHICAL CONDITIONS (INCLUDING BUILDING

CONFIGURATIONS), NETWORK MAINTENANCE OR UPGRADES, AND ENVIRONMENTAL CONDITIONS OR CAPACITY LIMITATIONS. CUSTOMER ACKNOWLEDGES

THAT ANY MAPS PROVIDED MAY NOT REFLECT TEMPORARY CHANGES IN COVERAGE OR COVERAGE GAPS THAT ARE LIMITED IN SCOPE. CUSTOMER WILL

ASSUME ANY WIRELESS COVERAGE RISKS. NONE OF [X] OR ANY OF ITS AFFILIATES, OR ANY UNDERLYING WIRELESS PROVIDERS OR ANY OF THEIR

AFFILIATES WILL BE LIABLE TO CUSTOMER FOR ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH ANY MAP INFORMATION,INCLUDING THE ACCURACY THEREOF OR ANY DIMINISHED NETWORK COVERAGE, INCLUDING NETWORK OUTAGES RESULTING FROM NETWORK MAINTENANCE OR UPGRADES.

WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING WIRELESS PROVIDERS’ NETWORKS USED TO ENABLE THE FIELD CONNECT SERVICES HAVE MANY COMPLEX ELEMENTS AND ARE NOT GUARANTEED AGAINST EAVESDROPPERS, HACKERS, DENIAL OF SERVICE ATTACKS, VIRUSES, OR INTERCEPTORS. CUSTOMER AGREES THAT NONE OF [X] OR ANY OF ITS AFFILIATES, OR THE UNDERLYING WIRELESS PROVIDERS OR ANY OF THEIR AFFILIATES WILL BE LIABLE TO CUSTOMER, ANY EMPLOYEE OF CUSTOMER, OR ANY THIRD PARTY USING FIELD CONNECT SERVICES THROUGH CUSTOMER FOR ANY LACK OF PERSONAL PRIVACY OR SECURITY. CUSTOMER HAS NO PROPERTY RIGHT IN ANY CODE OR NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH CODE OR NUMBER CAN BE CHANGED FROM TIME TO TIME.

6.2. Disclaimer of Warranties. SUBJECT TO ANY APPLICABLE “COUNTRY SPECIFIC TERMS” SET OUT BELOW TABLE 1 IN THIS CONTRACT FOR CUSTOMER’S CONTRACT JURISDICTION AND TO THE EXTENT PERMITTED BY APPLICABLE LAW: THE FIELD CONNECT SERVICES AND FIELD CONNECT SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NONE OF [X] OR ANY OF ITS AFFILIATES, OR [X]’S UNDERLYING WIRELESS PROVIDERS, OR ANY OF THEIR AFFILIATES HAS MADE, OR WILL BE DEEMED TO HAVE MADE, ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO [X]’S OR THE UNDERLYING WIRELESS PROVIDERS’ SYSTEMS OR THE FIELD CONNECT SERVICES. EACH OF [X] AND ITS AFFILIATES, AND THE UNDERLYING WIRELESS PROVIDERS AND THEIR AFFILIATES EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES ARISING IN LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF [X]’S OR THE UNDERLYING WIRELESS PROVIDER’S SYSTEM, THE FIELD CONNECT SERVICES OR ANY OTHER SERVICES PROVIDED BY [X] OR ANY OF ITS AFFILIATES, OR THE UNDERLYING WIRELESS PROVIDERS OR ANY OF THEIR AFFILIATES USING ANY UNDERLYING WIRELESS PROVIDER’S SYSTEM; (D) ANY WARRANTY OF NON-INFRINGEMENT; AND (E) ANY WARRANTY UNDER ANY THEORY OF LAW, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT CONTAINED IN THIS CONTRACT WILL BE DEEMED TO BE A WARRANTY BY [X] OR ANY OF ITS AFFILIATES, OR [X]’S UNDERLYING WIRELESS PROVIDERS OR ANY OF THEIR AFFILIATES.

6.3. Customer Indemnification. Subject to any applicable “Country Specific Terms” set out below Table 1 in this Contract for Customer’s Contract Jurisdiction and to the extent permitted by applicable law, Customer will indemnify, defend and hold [x] and its Affiliates (including their respective officers, employees, and agents), and any affected Underlying Wireless Providers and their Affiliates (including their respective directors, officers, employees and agents) (each, a “[x] Indemnified Party”) harmless against any and all losses, claims, damages or expenses (including attorneys' fees) arising out of or related to: (i) any personal injury to or death of any person or persons, any loss or damage of any property, any financial loss, or any interruption of services which are caused or claimed to have been caused directly or indirectly from Customer's (including its employees or independent contractors) negligent use or intentional misuse of the System; (ii) use of any mounting bracket or other equipment not provided or approved for use with the System by [x]; (iii) any use of the System by Customer for an unauthorized purpose; (iv) data content or other information transmitted by Customer, its employees or its independent contractors over the System; (v) any Abuse or Fraudulent Use by Customer or anyone accessing the Services through Customer or Customer’s Terminal; or (v) any material breach by Customer of any of the terms and conditions of this Contract. Customer hereby agrees to fully defend, hold harmless, and indemnify each [x] Indemnified Party from and against all liability, loss, damage, claims, actions, judgments or expenses arising out of or relating to Customer’s use of, failure to use, or inability to use the System or the wireless or satellite services provided by any Underlying Wireless Provider, as well as from any third party intellectual property infringement claims arising out of or relating in any way with respect to Customer’s use of the System, except to the extent any such liabilities, losses, damages, claims, actions, judgments or expenses are caused by the [x] Indemnified Party’s gross negligence or willful misconduct.

Advantages of this clause include:

Comprehensive approach.

Disadvantages of this clause include:

Focused on excluding liability as far as permitted under applicable law. Only refers to data when pointing out that the customer must indemnify the service provider for any losses related to their data.

Real-life clause on liability in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

[x] is only bound by an obligation of means in connection with the supply of its Service. [x] undertakes to use all necessary means to ensure the best possible processing of orders and provision of the Services.

However, [x] declines all responsibility in the event of mismanagement, handling errors or misuse of the Services. Under no circumstances may [x] be held liable for any damage of any kind whatsoever resulting from the use of the Services.

[x] may not be held liable for delays or failures due either to force majeure, an event beyond its control, or an event caused by the Customer.[x] may under no circumstances be held liable for any inconvenience or damage inherent to access and/or use of the Internet and/or electricity network, particularly in the event of service interruption(s), external intrusion(s) or the presence of computer viruses. The same applies to the needs, questions or problems of compatibility, interoperability and/or inherent qualities in the use of any physical or technical means allowing access to the Sites or Services.

Advantages of this clause include:

Comprehensive approach.

Disadvantages of this clause include:

Focused on excluding liability to a very broad extent.

Model clause in a contract against remuneration

Context: the clause is intended for situations where a separate general liability clause exists, including a liability cap (a maximum aggregate amount of liability, e.g. “Except in the event of gross negligence or wilful misconduct, our liability in the event of failure to comply with the obligations provided for in this Agreement, whatever the cause, shall be capped at the sum corresponding to the total amount of subscription fees paid during the 12-month period preceding the event giving rise to the damage”.). This clause only regulates liability linked to (use of) the damage.

The clause assumes that Customer Data and Business Insights have been defined; the model clause on scoping can be used for this purpose. The clause accepts liability (up to the liability cap) for errors in data collection by the service provider (data corruption), but not for damages linked to use of Business Insights.

Our sum and total liability for any damages caused exclusively by demonstrated corruption of Customer Data during or after transfer to our services is limited to the general liability cap as set out in this Agreement. We cannot be held liable in any way, under any legal theory, for damages linked to the Customer Data. Specifically, it is your sole and exclusive responsibility for ensuring that Customer Data is factually correct, complete and up to date before transferring it to us.

Furthermore, you accept that we cannot be held liable in any way, under any legal theory, for damages resulting from any decisions you make as a result of Business Insights that we provide to you. The accuracy, completeness, relevance or utility of Business Insights is not guaranteed in any way.

Any liability action that may be brought by you is time-barred within two (2) years from the event giving rise to the action.


Termination conditions

Real-life clause on termination in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

10.1 Term. The term of this EULA will commence on the date of your acceptance of this EULA and shall remain in effect until terminated as provided in this EULA or in any transaction agreement between you and [X] (the “Term”).

10.2 Termination. The parties agree that

(a) [X] shall have the right to terminate this EULA, at any time and without cause, upon the provision of 7 days’ written notice to you.

(b) In the event you fail to pay the Subscription Fee or other amounts due to [X] pursuant to this EULA or any transaction agreement between [X] and you, [X] can immediately terminate this EULA and the rights and licences granted herein.

(c) Subject to Section 10.2(a) and Section 10.2(b), in the event that a party (the “Defaulting Party”) shall breach any material provision of this EULA or fail to observe or perform any covenant or obligation applicable to it under this EULA, the other party (the “Non-Defaulting Party”) has the right to serve written notice on the Defaulting Party of the Non-Defaulting Party’s intent to terminate this EULA. The notice of intent to terminate shall specify the alleged breach or failure and if within 30 business days of the date of delivery of such notice to the Defaulting Party, the Defaulting Party has not cured all of the defaults, the Non-Defaulting Party may, at its sole discretion, terminate this EULA. Such termination shall be without prejudice to any other rights or remedies the Non-Defaulting Party may have in respect of such default.

(d) You agree to pay any outstanding amounts owing to [X] to the effective date of termination of this EULA. Such termination shall not relieve any of the parties from obligations incurred prior to the date of such termination.

(e) If any party becomes insolvent or bankrupt, dissolves or winds up, this EULA terminates immediately.

(f) Where either party is given a right to terminate hereunder and does not exercise the same, this shall not be deemed to be a waiver of such party's right to terminate upon any subsequent event.

Advantages of this clause include:

Relatively standard termination clause for subscription contracts.

Disadvantages of this clause include:

Discretionary and unilateral termination right for the service provider only, on short notice (7 days)

Real-life clause on liability in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

At any time, the Customer has the right to cancel his subscription at no additional cost. The Customer may cancel his subscription and account by sending a letter by registered mail with acknowledgement of receipt addressed to [x]'s registered office, at least thirty (30) days before the end of the subscription period.

Advantages of this clause include:

Relatively standard termination clause for subscription contracts.

Disadvantages of this clause include:

Lower predictability for the service provider.

Real-life clause on liability in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

14.1. This Agreement shall commence on the Effective Date and is entered into for an initial fixed term of [duration] years (the “Initial Term”). Upon expiry of the Initial Term, the Agreement shall automatically be extended for successive one (1) year periods (each an “Extension”), unless terminated by either Party upon giving at least [duration] months’ written notice prior to the expiry of the Initial Term or the then current Extension, or unless otherwise terminated early in accordance with the terms and conditions of this Agreement.

14.2. Either Party may terminate (or [X] may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party written notice of termination if (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) days after receipt of written notice of the material breach, (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business, or (iii) the other Party breaches its obligations under the provisions regarding the license, Intellectual Property Rights and confidentiality.

Advantages of this clause include:

Relatively standard termination clause for subscription contracts.

Disadvantages of this clause include:

Automatic extension in case of inaction of the customer.

Model clause in a contract against remuneration

Context: this is a generic termination clause for a time based subscription service (e.g. for a monthly subscription fee).

You may terminate your use of our services at any time and for whatever reason, by giving written notice and/or by terminating your service through the interfaces supported by our products and services. This termination will enter into effect at the end of your current subscription period, and fees will continue to apply until the moment of termination.

We retain the right to block your access to the service and/or terminate this Agreement, at any time and without prior notice, if we have reasonable grounds to indicate that you are in substantive breach of this Agreement and/or applicable laws. Furthermore, we may terminate your use of our services at any time and for whatever reason, by giving 3 months written notice. This termination will enter into effect at the end of the indicated notice period, and fees will continue to apply until the moment of termination.


Termination consequences

Real-life clause on termination consequences in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

RETENTION

We will store your personal information for as long as is reasonably necessary for the purposes for which it was collected. In some circumstances we may store your personal information for longer periods of time, for instance where we are required to do so in accordance with legal, regulatory, tax, accounting requirements. In specific circumstances we may store your personal information for longer periods of time so that we have an accurate record of your dealings with us in the event of any complaints or challenges, or if we reasonably believe there is a prospect of litigation relating to your personal information or dealings.

After expiration of any applicable Data Service contract, we may delete data at our discretion and subject to requirements in any applicable privacy, consumer protection, or other laws.

Advantages of this clause include:

Flexibility and reference to legal obligations and necessity of retention.

Disadvantages of this clause include:

No guarantees that data would ever be deleted based on any specific period.

Real-life clause on termination consequences in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

10.3 Return. Upon the expiration or termination of this EULA, for any reason whatsoever:

(a) You shall forthwith deliver to [X], without charge, the [X] IP, including all copies, and you shall certify to [X] that no copies of such material have been retained.

(b) You shall immediately cease access and use of the [X] IP and any other item provided by [X] herein, and any Intellectual Property relating thereto provided by [X] to you in any manner whatsoever.

(c) The Licence will terminate. Your access to the Software and the Results shall be disabled. The Content Licence shall continue.

(d) You agree that [X] has the right to notify any persons it deems appropriate as to the termination or expiry of the rights granted hereunder.

Advantages of this clause include:

Coverage of the data and software.

Disadvantages of this clause include:

Strong asymmetry: the user’s rights (the Licence) terminate; but the service provider’s rights (the Content Licence) do not, implying that the service provider may continue to use the data even after contract termination. No deletion is required.

Real-life clause on termination consequences in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

In the event of any termination, whether by you or us, Sections 1, 4, 5, 7 - 11 of these Terms will continue in full force and effect, including our right to use Your Content as detailed in Section 4.

Advantages of this clause include:

Concise and clear.

Disadvantages of this clause include:

The service provider’s rights to use the shared data do not terminate at any point, even after contract termination. No deletion is required.

Real-life clause on termination consequences in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

Upon expiration or termination hereof, Subscriber's access is suspended and any Subscriber data remaining on the Platform is deleted in accordance with the Confidentiality Policy.

Advantages of this clause include:

Concise and clear. Automatic and guaranteed deletion.

Disadvantages of this clause include:

Reliance on the external Confidentiality Policy (i.e. two documents must be combined to determine the exact modalities).

Real-life clause on termination consequences in a contract against remuneration

Context: the clause relates to a cloud based agricultural data platform, available on a subscription model.

14.3. Upon termination of this Agreement for whatever reason (i) the Customer shall promptly pay [X] all Fees and other amounts payable hereunder for the full contract term specified in clause 14.1 of this Agreement (namely the contracted Initial Term and any Extensions), except in the event of a termination by the Customer due to a default by [X], in which case the Customer must promptly pay [X] all Fees and other amounts payable hereunder up to the actual termination date; and (ii) the licenses granted to the Customer pursuant to clause 3 of this Agreement shall automatically terminate and the Customer shall return to [X] all copies of the Confidential Information of [X] that are in the possession or under control of the Customer (or alternatively, the Customer shall confirm in writing that such copies are permanently deleted).

Advantages of this clause include:

Automatic and guaranteed deletion of Confidential Data.

Disadvantages of this clause include:

Focuses on deletion of Confidential Data by the Customer, not by the service provider.

Model clause in a contract against remuneration

Context: this clause aims to terminate any use of Customer Data after contract termination (other than as required by law or to safeguard the service provider’s legal rights), and ensures that Customer Data is deleted after termination. Aggregate insights may be retained and used in the same manner as during the Agreement, provided that these cannot be linked to the customer.

The clauses assumes that Customer Data and Business Insights have been defined; the model clause on scoping can be used for this purpose.

After the termination of the Agreement, we will only use your Customer Data insofar as required to defend our legal interests or as required under applicable law. Business Insights related to you, or any statistical data inferred on the basis of your Customer Data, may still be used by for the same purposes and to the same extent as during the Agreement.

Your data will be retained by us only as long as required by applicable law, including as may be required to defend our legal interests. After the expiration of this period, your data will be irrevocably deleted.

General observations and points of attention

As already highlighted by the introductory section, key concerns in the agricultural sector include data misuse, unfair trade practices, and breaches of IP rights, driven mainly by the emergence of data platforms that can potentially accumulate large volumes of data which are vulnerable to abuse (e.g. through market speculation in a manner that can impact prices of commodities or land).

Based on the preceding sections and the identified sample clauses, the most common points of attention indeed relate to these topics. Specifically, some of the examined clauses apply generic usage language that involves little to no constraints for the service provider, and could conceivably permit usage of the data that is directly detrimental to the data provider. This includes indirect economic exploitation of the data (e.g. by extrapolating statistics in a way that allows pricing speculation), or even direct selling of the data.

While contractual ambiguity is not evidence that such behaviour occurs in the market, the agricultural sector is vulnerable to such abuses, since aggregate data easily permits speculation. From that perspective, it is advisable to verify that, when data is contractually allowed to be aggregated for other purposes than product/service improvement, that safeguards exist to protect the farmer against potentially detrimental behaviour, such as pre-emptive market speculation in a way that lowers the price the farmer is likely to obtain for his produce, land purchasing in areas that the farmer’s data shows to offer the highest yields, or using the farmer to research seed optimisation strategies without informing the farmer.

Furthermore, termination consequences tend to be defined in a relatively weak manner, in the sense that deletion of the data by the service provider beyond contract termination is often not guaranteed. While this can be acceptable in some cases, this does create an imbalance in practice. At a minimum, deletion clauses should strive to ensure that only statistical or aggregate data can be retained, or that the data can only be used for the creation of statistical/aggregate data, with appropriate usage limitations as described above.

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