These terms and conditions (the “Terms”) govern the purchase, sale, and use of all bovine related products and services offered by ABS GENETICS SOUTH AFRICA (PTY) LIMITED or its affiliates, (“ABS”), including without limitation: semen, sexed semen, embryos, and bovines; (“Germplasm”); artificial insemination, ovum-pick up, embryo transfer, in-vivo fertilization, pregnancy checks, or any related breeding or veterinary services (“Breeding Services”); custom indices, genetic management services, and other genetic advice or analysis, laboratory services, genotypes (“Genetic Services”); udder care products; breeding certificates; and equipment or supplies related to any of the above (collectively, with the Germplasm, Breeding Services, and Genetic Services, the “Products”) and of first-generation progeny made from Germplasm (“Progeny”). Please read these Terms carefully, as your use or purchase, or your employees’ or representatives’ use or purchase (collectively or individually, “you”), of the Products and Progeny constitutes your confirmation and agreement to be bound by these Terms (as revised from time to time) for the invoiced Products and any resulting Progeny and for your purchase and use of all future Product and Progeny after your receipt of these Terms. If you do not consent to these Terms, please return Products in unused and unaltered condition within 48 hours of receipt and ABS will refund you the purchase price.
- PURCHASE & SHIPPING. By placing an order for Products, you confirm that you are authorized to make the purchase. All orders are subject to acceptance by ABS and availability at time of shipment. Upon receipt, you shall inspect the Products to confirm that they are as ordered. If the Products are not as ordered due to loss, damage, or error as to Product type or quantity (“Nonconforming Products”) you must reject the Product by notifying ABS within 7 days of delivery and ABS will replace or refund your purchase at its discretion. Customer shall return or destroy all Nonconforming Products as instructed by ABS.
Payment terms are as listed in your statement/invoice. You shall provide ABS with any information or documentation necessary for ABS to invoice you the amount due to ABS. ABS may audit your records annually to confirm any information provided to ABS under this section. Payment of sales tax is your responsibility and shall be applied in accordance with all applicable tax laws. All Products ship Incoterms 2020 CPT (first carrier) from Cape Town to the invoice location, unless otherwise stated by ABS. Except as otherwise stated herein, title will pass to you at first carrier.
- USE. Products are approved for animal agriculture use only. You may not export Products or distribute, sell, or transfer Products to any third-party without the express written consent of ABS. You agree to only use Germplasm, in whole or in part, in animals wholly owned or controlled by you in the ordinary course of business. You may not without the prior written consent of ABS: reverse engineer, genotype, sequence, clone, reverse sort, genome edit, analyze or manipulate the Germplasm; or use Germplasm or /and the genetic materials contained in or derived from the Germplasm or Progeny, including any semen, oocytes, embryos, DNA, RNA, protein or other molecular or hereditary materials (“Genetic Materials”) for any research or development use, including in public or private research programs. Sexed semen may be used solely for single artificial insemination of a single bovine, with the intent to produce a single offspring. All rights in Germplasm and Progeny not expressly granted under this Section 2 are reserved by ABS and all other uses are strictly prohibited without ABS’ prior written consent.
In addition to the above, Germplasm from dairy bulls (of any age or status) that rank in the top 200 of their breed on the NM$ or TPI indexes1, top 50 on the CM$ or JPI index for (G) Status bulls 18 months and older or otherwise listed as an “Icon Sire” on the ABS Icon Website at www.absglobal.com/services/icon-sires (“Icon Germplasm”) may only be used: (1) in females unencumbered by any 3rd-party right or interest, including any purchase or breeding rights or restrictions (“3rd Party Restrictions”), and (2) where any resulting Progeny or Genetic Materials will be wholly owned or controlled by you and unencumbered by 3rd Party Restrictions. Any embryos you create (as permitted) from Icon Germplasm (“Icon Embryos”) may only be used in your herd and may not be sold, marketed, leased, traded, or otherwise transferred (“Transferred”) to any party unless otherwise permitted in writing by ABS. You must retain unencumbered ownership of any female that is, or could be, pregnant with Progeny from ICON Germplasm or an ICON Embryo until she is no longer pregnant.
A. DAIRY PROGENY: You agree to use dairy Progeny from Germplasm strictly as set forth in this section. You grant ABS the exclusive and irrevocable right and option to test and purchase any such Progeny or make and acquire Genetic Materials from such Progeny, for so long as the Progeny is owned by you, at the procedures and prices listed on the ABS Icon Website (“Option”). For clarity, ABS has no obligation to purchase Progeny or Genetic Materials. In this section, “Tested” means an animal that has received an official Council of Dairy Cattle Breeding (CDCB) evaluation or other evaluation approved by ABS in writing. Animals with no evaluation or an unapproved evaluation shall be considered “Untested”. In addition to the foregoing:
i) Male Progeny: Male Progeny created from Icon Germplasm may only be: (a) Transferred into the beef supply chain (e.g. sale to a slaughterhouse or feed yard) for the purpose of slaughter (“Beef Supply Chain”), either as a steer or with the express agreement from the buyer that it will remain in the Beef Supply Chain, or (b) sold to ABS under its Option, and for no other purpose unless otherwise permitted in writing by ABS. Male Progeny from non-Icon Germplasm may only be Transferred into the Beef Supply Chain or, if Untested, for natural service unless otherwise permitted in writing by ABS. Without limiting the foregoing, you may not create, use, or sell any male Progeny for the purpose of collecting or selling semen, or collect semen from male Progeny for yourself or any other party.
ii) Female Progeny: Female Progeny (of any age or status) created from Icon Germplasm that: (a) is Untested or (b) is Tested and ranks in the top 2,000 of its breed on the NM$ or TPI indexe1, top 500 on the CM$ or JPI index1, or the top 500 of the PLI, RZG, LPI, PFT, BPI, NVI, NTM or ISU index3 , for females six months and older (each an “Icon Daughter”) and her Genetic Materials, may only be used in your herd and cannot be Transferred until the Icon Daughter reaches 24-months of age, unless Transferred to ABS under its Option or otherwise permitted by ABS in writing. During the 24-month period you may not create Progeny from Icon Daughters that would be subject to 3rd Party Restrictions. You are free at any time to Transfer female Progeny that (x) has been Tested and ranks below the criteria listed under section 2(A)(ii)(b), or (y) was created from non-Icon Germplasm.
B. BEEF PROGENY: NuEra Germplasm may only be used to create a terminal crossbred Progeny (beef x dairy cross or beef x beef cross) that is Transferred into the Beef Supply Chain. Without limiting the foregoing, you may not create, use or sell any male Progeny of NuEra sires for the purpose of creating or selling semen, or collect semen from such male Progeny for yourself or any other party.
- GENETIC SERVICES. If you purchase or receive Genetic Services from ABS, you agree to promptly provide ABS with any information, consents and assistance as ABS may reasonably request. You acknowledge and agree that any information or tools provided to you from the Genetic Services including any custom indices or breeding recommendations (“GS Results”) is for your internal use only and their value is dependent on the correctness and quality of the data you provide, your cooperation, and other factors outside of ABS’ control including herd management, operational decisions, and environment. . The GS Results are for your internal use only.
- BREEDING SERVICES. If ABS offers Breeding Services and if you then decide to purchase Breeding Services from ABS, you are responsible, at your own cost, for preparing animals in accordance with ABS’ instructions. Additional fees may apply if animals are not properly prepared. You are responsible for Products not used during the Breeding Services, including fresh embryos. For any charge by pregnancy, pregnancy shall mean a positive pregnancy check (ultrasound or non-return) between 30 and 45 days post breeding, unless otherwise agreed by ABS.
ABS may provide certain services through a subcontractor
- WARRANTIES AND LIABILITY. ABS warrants that Germplasm, udder care products, and equipment and supplies sold by ABS conform to the description on the individual Product package and the Breeding Services (if provided) and Genetics Services will be performed with reasonable skill in accordance with generally acceptable industry standards. Except as otherwise set out in these Terms, all Products are provided by ABS “AS IS”. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, ABS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR THE PROGENY, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ABS SPECIFICALLY DISCLAIMS ANY WARRANTY (A) OF THE GENETIC MAKE-UP OF THE PRODUCT OR THE PROGENY; (B) OF THE PERFORMANCE OF THE PRODUCT, OR THE CHARACTERISTICS OR PERFORMANCE OF THE PROGENY; (C) OF THE ABSENCE OF PATHOGENS FROM THE PRODUCT; AND (D). THAT PRODUCT DESCRIPTIONS, MARKETING MATERIALS, WEBSITE CONTENT, OR OTHER INFORMATION RELATED TO THE PRODUCTS IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE.
YOUR EXCLUSIVE REMEDY FOR ABS’ BREACH OF ITS WARRANTIES UNDER THESE TERMS IS, AT ABS’ DISCRETION, REPLACEMENT, REPERFORMANCE, OR AN ACCOUNT CREDIT FOR THE DEFECTIVE PORTION OF THE PRODUCT. The warranty described herein is contingent upon your proper use of the Products in compliance with any product manuals or instructions, industry standards, these Terms, and any reasonable instructions from ABS in respect to the return or destruction of defective Products. These warranties do not cover any Products which have been modified in any manner or subject to abuse, neglect, misuse or alteration.
- LIABILITY DISCLAIMER: ABS, ITS AFFILIATES, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AND DISTRIBUTORS (“ABS PARTIES”) ENTIRE LIABILITY ON ANY CLAIM ARISING FROM OR RELATED TO THE PRODUCTS OR PROGENY (WHETHER FROM BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR FIDUCIARY DUTY) SHALL NOT EXCEED THE PURCHASE PRICE PAID TO ABS FOR THE PRODUCTS THAT ALLEGEDLY CAUSED THE LOSS, OR IF ABS SO ELECTS, REPLACEMENT OF THE PRODUCT. IN NO EVENT SHALL ANY ABS PARTY BE LIABLE FOR INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, MULTIPLIED DAMAGES OR LOST PROFITS SUSTAINED BY YOU OR ANY OTHER PERSON, OR FOR ANY FAILURE OF COWS TO CALVE. YOU AGREE NOT TO ASSERT ANY NON-CONTRACTUAL CLAIM UNDER STATE LAW ARISING FROM OR RELATED TO YOUR PURCHASE OR USE OF ANY PRODUCT. YOU ASSUME ALL RISK AND LIABILITY ARISING FROM OR RELATED TO YOUR USE, HANDLING, OR STORAGE OF PRODUCTS OR RELATED TO DEFECTS IN ANY STORAGE CONTAINERS OR TANKS CONTAINING PRODUCTS.
- Liquid Nitrogen Notice: You shall transfer all Germplasm from shipping tanks to your own nitrogen tanks immediately upon receipt. You are responsible for providing and maintaining liquid nitrogen tanks, including nitrogen levels and tank operation at all times. ABS may provide liquid nitrogen services to customers as an ancillary service. Such services are provided on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, the ABS Parties shall not be responsible for any loss and/or damages, direct or indirect, arising out contract, tort, or fiduciary duty by providing liquid nitrogen to you. To the extent allowable by law, all liability for the supply, maintenance, or servicing of liquid nitrogen storage tanks is expressly disclaimed by ABS Parties.
- DISTRIBUTORS. ABS contracts with independent contractors, sales agents, authorized representatives, or other distributors (“Distributors”) from whom you
may purchase Products directly. Distributors are not the agents, employees, or servants of ABS and are not authorized to contract for, or on behalf of, ABS. Because ABS does not control the Products after transfer to a Distributor, and disclaims all liability for the Products, services, actions, or work provided to you by Distributors.
- INDEMNITY. You agree to defend, indemnify and hold all ABS Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with (a) your use of ABS Products; (b) your breach or alleged breach of these Terms; (c) your violation of any third-party right, including any intellectual property right, publicity, confidentiality, property or privacy right; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including all regulatory, administrative and legislative authorities; and (e) any misrepresentation made by you.
- INTELLECTUAL PROPERTY. ABS Products are covered by ABS’ Intellectual Property Rights, including patents, which can be found at (https://www.absglobal.com/patents/). Subject to your compliance with these Terms, ABS grants you a non-exclusive, non-sublicensable, limited, revocable license to such Intellectual Property Rights to use its Products as set forth in these Terms, transferable only as specifically permitted in these Term, and specifically for (a) Germplasm and Genetic Materials, as strictly as permitted under the “Use” section and (b) GS Results, as set forth in the Genetic Services section. Trademarks, logos and service marks on ABS materials, Products, websites, or elsewhere by ABS are registered and unregistered trademarks of ABS (“ABS Marks”). No license or right to use any ABS Mark is granted by these Terms. All other uses of ABS intellectual property (including the ABS Marks) are strictly prohibited without the prior written consent of ABS. “Intellectual Property Rights” as set forth in these Terms means patent applications, patents, copyrights, trademarks, mask works, trade secrets, know-how, and any information embodying proprietary data such as technical data and computer software.
- SOFTWARE. Some Products allow you to download or access ABS owned or licensed software and any updates or upgrades (“Software”). ABS grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Software, subject to any Software terms and Conditions and solely in connection with the Products. To the extent any component of the Software is offered under a third-party sub-license, you must use that Software in compliance with the terms and policies of the third-party supplier, in addition to these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Software or Products, attempt to do so, or assist anyone in doing so.
- DATA. As part of ABS’ effort to continually improve its Product offerings, ABS employees or Distributors may collect data or information, including herd and animal performance data, from your technology systems or records (“Data”). By permitting ABS employees or Distributors to access your Data or systems, you grant ABS a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide license to access and use the Data for ABS business purposes (“Data License”). You agree that ABS may access, under the Data License, any Data that relates to the Products or Progeny that you provide to buyers of your milk, meat, or animals or to other channel partners directly from such parties. ABS understands that maintaining anonymity of your Data is important to your business operations, and will not use your Data in a way that discloses your individual or business identity to the public. Any data, reports, information or intellectual property created, generated or discovered by ABS from the Data (individually or in aggregate), or any data on the Products or Progeny collected directly by ABS is the sole property of ABS, and no ownership rights in such data, reports, information or intellectual property shall transfer to you or any third-party.
- COMPLIANCE WITH LAWS. You agree to comply with all applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including all regulatory, administrative and legislative authorities, including any anti-corruption and bribery law, policy or regulation, in connection with your purchase or use of the Products and in your dealings with ABS.
- GOVERNING LAW. These Terms are governed by and construed in accordance with the laws of the State of Wisconsin, USA without giving effect to any principles of conflicts of law. You irrevocably submit to the exclusive jurisdiction of the courts of Wisconsin, USA over any claim or matter arising out of or related to these Terms or your purchase or use of Products.
- ENTIRE AGREEMENT & INTERPRETATION. These Terms constitute the entire agreement between you and ABS, and supersede and replace any agreement, terms and conditions, or your purchase order or other ordering document related to the Products, except to the extent that such agreement is in writing, signed by both you and ABS (“Written Contract”). To the extent that the terms of a Written Contract conflict with these Terms, the terms of the Written Contract shall prevail. In the event these Terms differ from terms and conditions on ABS printed forms, these Terms shall prevail. In these Terms, the word “including” shall be deemed to be followed by the words “without limitation.”
- WAIVER, SEVERABILITY & ASSIGNMENT. ABS’ failure to enforce any provision of the Terms is not a waiver of its right to do so later. If a provision is found unenforceable or invalid for any reason, the remaining provisions shall remain in full force and effect. You may not assign any of your rights under these Terms, and any such attempt shall be void. ABS may assign its rights to its affiliates or subsidiaries, or to any successor in interest of any business associated with ABS.
- MODIFICATION. ABS may revise these Terms from time to time and will post the most current version on our website. You are bound by any revision and should review these Terms periodically. If any provision of these Terms is deemed invalid, void, or unenforceable for any reason, that provision shall be severed and shall not affect the validity or enforceability of any remaining provision, and the parties shall substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision.
1 NM$ and CM$ index is published by the United States Council of Dairy Cattle Breeding; TPI index published by Holstein Association USA; JPI index published by the American
Jersey Cattle Association. All indices are inclusive of their genomic equivalents.
2(G) Status as defined by NAAB as “genotyped and has semen available for sale and has less than 10 milking daughters”. Used in these Terms, (G)Status only applied to the index
scope used to determine rank, and an ABS sire is not required to be in (G)Status to be classified as “ICON”.
3 PLI (UK), RZG (Germany), LPI (Canada), PFT (Italy), BPI (Australian), NVI (Netherlands), ISU (France) and NTM (Scandinavia).