Terms and Conditions

These terms and conditions (the “Terms”) govern the purchase, sale, and use of all bovine related products and services offered by ABS Australia Pty Ltd 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 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 the purchase price.

1. PURCHASE & SHIPPING. By placing an order for Products, you confirm that you are authorized to make the purchase. All sales are final, cannot be cancelled, and are non-refundable, unless otherwise noted in these Terms. 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, or in the case of loss of Germplasm due to a shipping tank failure, within 24 hours of delivery, and ABS will replace or refund your purchase at its discretion. You shall return or destroy all Nonconforming Products as instructed by ABS. 
   Payment terms are as listed in your statement/invoice or in ABS’s retail price list as of the date the order ships or is invoiced, or, if the Product is a service, the date the Product is provided, subject to any applicable discounts. From time to time, ABS may provide price quotes for Products. Any price quote is provided as an estimate only and does not bind ABS to any price or other terms or conditions. Unless otherwise agreed the price for the Products shall be due and payable to ABS in full in Dollars ($AUD, incash or cleared funds) within twenty-eight (28) days of the date of invoice. Time for payment is of the essence of the contract.
   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 2010 CPT (Name Point) by ABS to the location indicated on the invoice, unless otherwise stated by ABS. Except as otherwise stated herein, including with respect to Genetic Materials, title will pass to you at first carrier. Products are deemed delivered when (i) they arrive at the location indicated on the invoice; (ii) are collected by you at a facility designated by ABS; or (iii) ABS completes performance. Shipping costs are your responsibility. Any delivery or performance dates provided are non-binding estimates only.
   If you do not pay the whole or any part of the price due to ABS by the due date, then you shall pay ABS interest on the amount outstanding from the due date until theactual date of payment (whether before or after judgment) at the rate of 1.5% per month. You shall pay the interest together with the overdue amount and any expense incurred by ABS in connection with the recovery of the outstanding amount (including legal costs). So long as any payment to ABS is outstanding, whether under the same or any other contract or transaction between ABS and you, ABS shall have a secured interest in any animals produced from the Products. You shall not be entitled to withhold payment of any amount due to ABS by reason of any claim by you. ABS may at any time, without limiting any other right to or remedies it may have, set off payment owed against any amount owed to you by.
   When necessary for the delivery of the Products, you shall: (a) co-operate with ABS in all matters relating to the provision of the Products; (b) provide ABS, its employees, agents, consultants and subcontracts, with access to your premises and other facilities as reasonably required by ABS for provision of the Products; (c) prepare your  premises for the supply of the Products; (d) obtain and maintain all necessary licenses, permissions and consents which may be required before the date on which the Products are to be delivered; and (d) provide ABS with such information and materials as ABS may reasonably require in order to supply the Products and ensure that such information is accurate in all material respects. You warrant, represent and undertake to ABS that you will install, operate or otherwise use or store the Products strictly in accordance with the Recommendations for Use and with all relevant or applicable statutory or other regulations governing the installation, operation, use or storage of the Products. 
2. 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 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. Conventional semen may only be used solely for artificial insemination of a single bovine, in-vitro-fertilization, or embryo transfer. Sexed and conventional semen may be used solely for single artificial insemination of a single bovine, with the intent to produce a single offspring. All other uses of ABS conventional and sexed semen are prohibited. Export or transfer of possession of ABS Genetic Materials is prohibited without prior written consent of ABS. You may not sell Products to another party unless you are authorized to do so by ABS. All rights in Germplasm, Genetic Materials, and Progeny not expressly granted under this Section 2 are reserved by ABS and all other uses are strictly prohibited without ABS’s prior written consent. For availability of other licenses, contact ABS.
   Dairy Progeny-Sons & ABS Option to Purchase:
   In addition to the general use restrictions set forth above, You shall not sell, lease, trade, market or otherwise transfer (“Transfer”) to any third-party any male Progeny (whether born or unborn) (“Breeding Bulls”), except for slaughter, or sell or collect any semen from Breeding Bulls without the prior written consent of ABS. Nothing in these terms restricts your use of Breeding Bulls for natural matings within your herd. You grant ABS the exclusive and irrevocable right and option to test and purchase Breeding Bulls. For clarity, ABS has no obligation to purchase Progeny. 
   Beef Progeny:
    There are no additional restrictions on use of beef Germplasm beyond the general use restrictions set forth above.  
3. GENETIC SERVICES. For any Genetic Services, 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”) are for your internal use only and their value is dependent on the correctness and quality of the data you provide, your cooperation, and factors outside of ABS’s control including herd management, decisions, and environment.
4. BREEDING SERVICES. If you purchase Breeding Services from ABS, you are responsible, at your own cost, for preparing animals in accordance with ABS’s 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) 30-45 days post breeding. 
5. WARRANTIES AND LIABILITY. ABS warrants that Germplasm, udder care products, breeding certificates, equipment, and supplies sold by ABS conform to the description on the individual Product package, and the Breeding Services 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 (W) OF THE GENETIC MAKE-UP OF THE PRODUCT OR THE PROGENY; (X) OF THE PERFORMANCE OF THE PRODUCT, OR THE CHARACTERISTICS OR PERFORMANCE OF THE PROGENY; (Y) OF THE ABSENCE OF PATHOGENS FROM THE PRODUCT; AND (Z) THAT PRODUCT DESCRIPTIONS, MARKETING MATERIALS, WEBSITE CONTENT, OR OTHER INFORMATION RELATED TO THE PRODUCTS IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. ALL CONDITIONS, WARRANTIES, REPRESENTATIONS, AND IMPLIED TERMS ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, INLUDING EXCLUSION OF ALL CONSUMER WARRANTIES IN THE COMPETITION AND CONSUMER ACT 2010 (CCA) AND ANY AMENDMENT THEREOF. YOUR EXCLUSIVE REMEDY FOR ABS’s BREACH OF ITS WARRANTIES UNDER THESE TERMS IS, AT ABS’s 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.  
   You certify that any certificate(s) you purchase are for the sire of the registered animal(s) and further indemnify ABS against any first- or third-party claims related to a misrepresentation of the sire. You acknowledge that ABS has not made any representation, warranty, or statement other than as recorded in this Agreement. 
6. LIABILITY DISCLAIMER: THE ENTIRE LIABILITY OF ABS, ITS AFFILIATES, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AND DISTRIBUTORS (“ABS PARTIES”) BASED 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, LOST PROFITS, LOSS OF BUSINESS OR ANALOGOUS LOSS, LOSS OF PRODUCTION, OR LOSS OF OPPORTUNITY 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. 
   ABS is not liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work to the Products carried out without ABS’s prior written approval. You shall indemnify ABS against each loss, liability and cost arising out of such claims. 
7. 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. 
8. DISTRIBUTORS. ABS contracts with independent contractors, sales agents, authorized representatives, and 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. 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.
9. 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 or your marketing or sale of the Products; (b) your breach or alleged breach of these Terms; (c) your violation of any third-party right, including any intellectual property, 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; (e) your negligence or other tortious conduct, and (e) any representation, statement, warranty or covenant made by you not contained herein.
10. INTELLECTUAL PROPERTY. ABS Products are covered by ABS’s 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 solely to use its Products as set forth in these Terms, transferable only as specifically permitted in these Terms, 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 placed 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” 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.
11. 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. 
12. DATA. As part of ABS’s 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 rights in such data, reports, information or intellectual property shall Transfer to you or any third-party.
13. 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.
14. Genus ANTI-CORRUPTION AND BRIBERY POLICY. ABS (through its parent company Genus plc) maintains an Anti-Corruption and Bribery Policy to ensure all business is conducted in an honest and ethical manner. ABS takes a zero-tolerance approach to bribery and corruption and is committed to acting professionally, fairly and with integrity in all our business dealings and relationships wherever we operate. ABS is proactive in implementing and enforcing effective systems to counter bribery and will uphold all laws relevant to countering bribery and corruption in all the jurisdictions in which we operate. You agree to hold yourself, including officers, directors,employees, agents, affiliates, assigns, predecessors, successors, anyone claiming under it, and any third-party contractors performing business on behalf of you in conjunction with ABS Products, accountable to the ABS/Genus Anti-Corruption and Bribery Policy. A copy of the ABS/Genus Anti-Corruption and Bribery Policy will be made available to you at your request.
15. GOVERNING LAW. These Terms are governed by and construed in accordance with the laws of Victoria, without giving effect to any principles of conflicts of law. You irrevocably submit to the exclusive jurisdiction of the Federal and State Courts of Victoria, Australia over any claim or matter arising out of or related to these Terms or your purchase or use of Products. 
16. 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 these Terms, the word “including” shall be deemed to be followed by the words “without limitation.” 
17. INSURANCE. ABS’s insurance policies do not extend to you. ABS shall not be responsible, in any regard, for your failure to obtain adequate insurance.
18. FORCE MAJEURE. Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under these Terms where suchfailure or delay arises out of any cause beyond the reasonable control and without the fault of negligence of such party.
19. NOTICES. All notices under these Terms shall be in English and shall be in writing and addressed to that other party at its registered office or principal place of business. 
20. WAIVER, SEVERABILITY & ASSIGNMENT. ABS’s 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.
21. 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.