Genus Breeding is part of the world's leading provider of bovine genetics and reproduction services, marketing in more than 70 countries around the globe. Alongside this is its technologically advanced range of forage, nutrition, foot and udder care products. Through Genus' extensive research and development programme, its cutting edge technology is being used to maximise the potential of beef and dairy farms throughout the world. Genus Breeding is part of ABS Global, a division of Genus plc. Our Terms and Conditions For the provision of Livestock Technician Services and other Services and the Supply of Goods Your attention is drawn to the clauses in these Conditions in bold type which exclude or limit Genus Breeding Limited’s liability. Genus Breeding Limited Terms and Conditions For the provision of Livestock Technician Services and other Services and the Supply of Goods Your attention is drawn to the clauses in these Conditions in bold type which exclude or limit Genus Breeding Limited’s liability. 1. Definitions 1.1 In these terms and conditions: “AI Technician” or “RMS Technician” means an artificial insemination technician providing the Genus AI Technician Service; ”Appointed Agent” means the Customer’s agent who is working on behalf of the Customer and has been notified as such in Writing to Genus by the Customer; “Authorised Recipient” has the meaning given in Condition 22.3; “Batch Number” means the number printed onto the semen straw which indentifies the semen collection date of that specific straw of semen; “Buyer Group” means a group of customers who have agreed between themselves to place Orders collectively on behalf of their Member Farms, but for the purpose of the Contract one of the Member Farms will be the Customer; “Conditions” means these terms and conditions as amended from time to time in accordance with clause 2.5; “Confidential Information” has the meaning given in Condition 22.1; “Contract” means a contract for the provision of Services and/or the supply of Goods by Genus to the Customer whether made verbally or in Writing; “Customer” means the person from whom an Order to provide Services and/or supply Goods is received by Genus; “Defra” means the Department for Environment, Food and Rural Affairs; “DPA” means the Data Protection Act 1998; “Farm Flask” means the farm flask owned and used by a Customer or Farmer Customer for the storage of animal semen; “Farmer Customer” means the third party who the Customer instructs Genus in Writing to deliver Genus Semen and/or Non- Genus Semen and/or provide Services to, including where applicable a Member Farm(s); “Force Majeure” means any event or circumstances beyond Genus’ reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events (human or animal), including without limitation outbreaks of Foot and Mouth Disease and/or similar animal disease which affects Genus’ provision of the Goods and/or Services, natural disasters or extreme adverse weather conditions, compliance with the law or a governmental order, rule, regulation or direction, any default of suppliers or subcontractors, or any act or omission on the part of the Farmer Customer; “Genus” means Genus Breeding Limited (registered in England with no. 1192037) whose registered office is situated at Belvedere House, Basing View, Basingstoke, Hampshire, RG21 4HG and also, where the context so admits, any authorised representative (whether an employee or sub-contractor) of Genus; “Genus AI Technician Service” means the insemination service operated by Genus, whereby Genus inseminates Customers’ cows with Genus Semen and/or Non-Genus Semen in accordance with instructions from the Customer; “Genus Distribution Service” means the service whereby Genus uses its own transport and/or an independent carrier arranged by Genus to deliver Genus Semen and/or Non-Genus Semen to Customers or Genus Semen to the Other AI Provider; “Genus DIY Service” means the service whereby Genus delivers Genus Semen and /or Non-Genus Semen to the Customer and/or Farmer Customer to be held in a Farm Flask(s) in accordance with instructions from the Customer; “Genus Items” shall mean the items supplied by Genus required for the RMS service, which Genus shall store at the Customer/Farm Customer’s farm in accordance with in Condition 15.8, including without limitation paint sticks, Genus RMS Technician clothing, Genus RMS Technician storage flask and its contents. “Genus Semen” means animal semen supplied by Genus; “GMS” means Genus’ Genetic Management System; “Goods” means the Goods which Genus is to supply, distribute and/or store under the Contract including, without limitation, Genus Semen, teat dips, silage additive, liquid nitrogen and any other goods offered for sale by Genus from time to time as specified in the Order; “Intellectual Property” means: (a) patents, trade marks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trade marks and service marks, copyrights, know-how, rights in designs and inventions; (b) the sui generis right for the maker of a database to prevent extraction or re-utilisation or both of the whole or a substantial part of the contents of that database, as described in Directive 96/9/EC on the legal protection of databases; (c) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraphs (a) and (b); and (d) rights of the same or similar effect or nature as or to those in paragraphs (a), (b) and (c), in each case in any jurisdiction; “Literature” means Genus' catalogues, pamphlets, price lists advertising literature and other published literature; “Local Genus Service Centre” means a Genus delivery and collection point before onward delivery; “Member Farm” means a member of a Buyer Group and the term Member Farms shall be construed accordingly; Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 2 “New Owner” has the meaning set out in Condition 15.5; “Non-Genus Semen” means animal semen owned and supplied by the Customer, including semen supplied by another provider; “Order” means an order placed by the Customer for the provision of Services and/or the supply of Goods whether verbally or in Writing; “Other AI Provider” means a provider (other than Genus) which offers an artificial insemination service, as specified by the Customer in Writing; “Personal Data” means personal data (as defined in the DPA) which is supplied to Genus by the Customer or obtained by Genus in the course of Genus providing the Goods and/or Non-Genus Semen and/or Services; “Recommendations for Use” means the recommendations (if any) relating to the storage, handling, application and/or use of the Goods and/or Non-Genus Semen contained in the Literature (or if relevant, the published literature of a Supplier), product labelling or any recommendations made in Writing by an authorised representative of Genus (or if relevant, a Supplier); “RMS” means Genus’ Reproductive Management System; “Semen Distribution Service” means the Genus DIY Service or the Genus Distribution Service as the case may be; “Semen Storage Service” means the service whereby Genus stores Genus Semen and/or Non-Genus Semen in liquid nitrogen vessels at TCSU, Genus regional centres or in Genus AI Technician semen flasks for Customers for a monthly fee. “Services” means the services to be provided by Genus under the Contract including, without limitation, any or all of the following: (a) consultancy services; (b) the storage and transportation of Genus Semen and/or Non- Genus Semen via the Genus DIY Service and/or Genus Distribution Service; (c) the artificial insemination of a cow or heifer with Genus Semen and/or Non-Genus Semen via the Genus AI Technician Service; (d) the provision of the RMS and/or GMS services; (e) liquid nitrogen top-ups; and (f) any other services to be provided by Genus as specified in the Order; “Special Terms” means any additional terms and conditions made available by Genus from time to time and which are agreed by the parties which relate to the provision of any particular Goods or Services; “Supplier” means any person who or which supplies the Goods and/or provides the Services to Genus in substantially the form which they are supplied and/or provided to the Customer; “Supply” includes, where the context so admits, any lease, hire or loan of the Goods and "supplied" shall be construed accordingly; “TCSU” means Genus’ Towcester Central Storage Unit; “Writing” includes typing, printing, lithography, photography, facsimile transmission and other modes of representing or reproducing words in a legible and non transitory form but excludes electronic mail; “Working Days” means any day on which banks are generally open for business in the City of London (other than Saturdays, Sundays or public holidays); 1.2 In these terms and conditions words importing the singular number shall include the plural and vice versa; words importing any gender shall include all other genders; words importing persons shall include bodies corporate, unincorporated associations, partnerships and individuals; and headings are for convenience only and shall not affect interpretation. 2. Orders, acknowledgements, conditions and variations 2.1 An Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. 2.2 Notwithstanding that Genus may have given a detailed quotation or estimate either verbally or in Writing, an Order shall only be deemed accepted when Genus issues an acceptance of the Order in Writing or the Goods are delivered and/or the Services are provided by Genus to the Customer pursuant to the Order (whichever is earlier), at which point the Contract shall come into existence. All Orders are subject to availability and Genus reserves the right without incurring any liability whatsoever to refuse any Order in whole or in part. 2.3 The Conditions and any Special Terms are incorporated in the Contract and contain the entire agreement and obligations between Genus and the Customer in relation to the Goods and/or Services that are the subject of the Contract. In the case of any inconsistency between the Conditions, any Special Terms, any letter or quotation incorporating or referring to the Conditions, any Order and (subject to Condition 2.4 below) any letter or form of contract sent by the Customer to Genus, whatever may be their respective dates, the provisions of the Conditions shall prevail. 2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of Genus entering into the Contract without Genus having submitted a written quotation or other letter or document incorporating or referring to the Conditions, but in circumstances where the Customer has had prior notice of the Conditions, then the Contract shall be subject to the Conditions. 2.5 No variation of the Contract by the Customer shall be binding upon Genus unless and until accepted in Writing by Genus, such acceptance to be evidenced by the signature of an authorised representative of Genus. 2.6 No representations or warranties made by or on behalf of Genus, prior to the Contract (whether verbally or in Writing) shall form part of the Contract. 2.7 A quotation for the Goods and/or Services given by Genus shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) days from its date of issue. 3. Price 3.1 The price payable for the Goods shall be as set out in Genus’ retail price list current at the date of acceptance of the Order for the Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 3 Goods. Genus may at its discretion vary such rate at any time or as agreed in Writing between the parties. 3.2 The price payable for the Services shall be Genus’ current rate at the date of provision of the Services. Genus may at its discretion vary such rate at any time. 3.3 Any price set out in any quotation or estimate shall be considered to have been given solely for information and shall not constitute an obligation on the part of Genus that it will deliver the Goods and/or provide the Services at that price. 3.4 All prices are exclusive of any applicable Value Added Tax which shall be charged at the rate applicable at the date of invoice. 4. Terms of Payment 4.1 Notwithstanding any other provision of the Conditions, Genus reserves the right to invoice and require payment for Goods and/or Services in advance. 4.2 Unless otherwise agreed the price for the Goods and/or Services shall be due and payable to Genus in sterling (in full and in cleared funds) within twenty-eight (28) days of the date of invoice. Time of payment is of the essence of the Contract. 4.3 If the Customer does not pay the whole or any part of the price due to Genus under the Contract by the due date, then the Customer shall pay to Genus interest on the amount outstanding from the due date until the actual date of payment (whether before or after judgement) at the rate of 4% per annum over the base rate of Barclays Bank plc from time to time in force, which shall accrue on a daily basis and be calculated on the basis of a year of 365 days. The parties agree that this constitutes a substantial remedy in terms of the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall pay the interest together with the overdue amount and any expenses incurred by Genus in connection with the recovery of the outstanding amount (including legal costs). 4.4 So long as any payment due from the Customer to Genus is outstanding, whether under the same or any other Contract or transaction between Genus and the Customer, Genus shall have a lien on any goods or property of the Customer (including without limitation any Non-Genus Semen) in its possession and shall, at its discretion, be entitled to retain them and/or suspend work on any Contract until such payments have been made. 4.5 The Customer shall not be entitled to withhold payment of any amount due to Genus by reason of any disputed claim by the Customer in connection with the Contract, nor shall the Customer be entitled to set-off against any amount payable under the Contract to Genus any amount which is not then due and payable by Genus or for which Genus disputes liability. Genus may at any time, without limiting any other right to or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Genus to the Customer. 4.6 All payments payable to Genus under a Contract shall become due immediately on its termination despite any other provision. 5. Delivery 5.1 Delivery of Goods shall be deemed to be effected by Genus at the following times:- 5.1.1 where Goods (excluding Genus Semen) are delivered by Genus or by an independent carrier arranged by Genus, when the same are unloaded at the Customer’s premises or at premises nominated by the Customer; or 5.1.2 where Goods (excluding Genus Semen) are collected by or on behalf of the Customer, at the time that the Customer collects the Goods; or 5.1.3 in the case of Genus Semen and/or Non-Genus Semen (as the case may be), in the case of Genus AI Technician Service, the day following the arrival of the semen at the Local Genus Service Centre; in the case of Genus DIY Service, on delivery of the semen into Customer’s or Farmer Customer’s Farm Flask, which will be up to 3 days after the semen arrives at the Local Genus Service Centre. 5.2 Provision of Services shall be deemed to be effected by Genus at the time of completion by Genus of the Services. 5.3 Whilst Genus will make every reasonable effort to complete the Contract by the date or dates therein specified for delivery of Goods and/or Non-Genus Semen and/or provision of Services such date or dates shall only constitute the times by which Genus expects to effect such delivery and/or provision but the time for performance of the Contract by Genus shall not be of the essence of the Contract. Genus’ failure to so deliver and/or provide by the due date or dates shall not constitute a breach of Contract and Genus may wholly or partly suspend deliveries of Goods and/or Non-Genus Semen and/or provision of Services and the Customer shall accept late delivery of such Goods and/or Non-Genus and/or provision of Services and shall not be entitled to any compensation in respect thereof. 5.4 Section 32(2) of the Sale of Goods Act 1979 does not apply to the Contract, such that where Genus delivers Goods and/or Non- Genus Semen to a carrier and the Goods and/or Non-Genus Semen are lost or damaged in the course of transit, the Customer may not automatically hold Genus liable for its failure to conclude a reasonable contract with the carrier on behalf of the Customer and/or hold Genus responsible in damages.5.5 Where Genus or an independent carrier arranged by Genus are to deliver Goods (including Genus Semen and/or Non-Genus Semen) onto Customer’s and/or Farmer Customer’s farm , Genus or the carrier will leave the Goods in safe place on the farm (in case of semen, in Customers Farm Flask) to the extent that the same has been agreed between the parties in advance. 6. Instalments 6.1 Where Goods and/or Non Genus Semen are to be delivered and/or Services are to be provided by instalments, each instalment shall be deemed to be provided or sold under a separate contract and failure by Genus to provide any one or more instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated. 6.2 If Goods and/or Non Genus Semen and/or Services are to be provided or delivered by instalments, Genus shall be entitled to invoice each instalment as and when delivery and/or provision is made and payment for all delivered and/or provided instalments shall be due notwithstanding the non-delivery and/or non-provision of other instalments or other default by Genus. 6.3 Failure by the Customer to make payment by the due date for any one instalment for whatever reason shall entitle Genus to suspend delivery of any Goods and/or Non Genus Semen and/or provision of any Services under the Contract but without prejudice to any other right Genus may have under any of the other provisions of the Conditions. Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 4 7. Semen Storage Non-Genus Semen Storage 7.1 The Customer may deliver Non-Genus Semen to Genus at TCSU only. 7.2 The Customer or their Appointed Agent must inform Genus of the registration particulars of each new bull at least fourteen (14) Working Days before delivering any of the Non-Genus Semen from that new bull to Genus. 7.3 When the Customer delivers Non-Genus Semen to Genus the Customer must notify Genus not less than five working days in advance of any delivery of the Non-Genus Semen to TCSU (and must achieve delivery within twenty four (24) hours of the stated delivery time. 7.4 On each occasion when the Customer delivers Non-Genus Semen to Genus the delivery must be accompanied by the following paperwork: 7.4.1 if the Non-Genus Semen is from the UK, a certificate in the form required by Genus signed by the Customer’s supervising veterinary surgeon and dated no more than ten (10) Working Days prior to the date of delivery; 7.4.2 if the Non-Genus Semen originates from outside the UK, such appropriate export health certificates as are required by Genus; 7.4.3 the Customer’s and/or Farmer Customer’s full name and delivery address including postcode and telephone contact number; 7.4.4 the bull’s full name and breed code (e.g. FH number); 7.4.5 the number of Non-Genus Semen units together with Batch Numbers; and 7.4.6 the Customer’s instructions in relation to the required service or delivery method for the Non-Genus Semen (i.e. Genus AI Technician Service or a Semen Distribution Service) or if the Non- Genus Semen is required to be stored at TCSU. 7.5 The Non-Genus Semen from each different bull and Batch Number must be packed in a separate goblet. 7.6 If a delivery arrives without the above paperwork and/or information (or if the Customer does not comply with the requirements of this Condition 7) Genus reserves the right to refuse to accept the delivery of Non-Genus Semen and to return it to the Customer (at the Customer’s expense). Genus will not be obliged to obtain nor be responsible for obtaining missing information. 7.7 The Customer agrees and warrants that it will ensure that it delivers Non-Genus Semen to Genus in full compliance with the requirements of The Artificial Insemination of Cattle (Animal Health) (England and Wales) Regulations 1985 (as amended) and all other relevant statutory provisions, regulations and codes of practice in force from time to time. The Customer agrees that if it is in breach of any such requirements and Genus suffers any loss or cost as a result the Customer will indemnify Genus against such loss and cost. 7.8 Genus does not count or check Batch Numbers of Non- Genus Semen when it arrives at TCSU. The Non-Genus Semen is booked onto the Genus computer system in the Customer’s name with the quantity and Batch Number of units indicated on the delivery paperwork which accompanies it. Genus will not be held responsible for any discrepancy in the quantity which may be found at a later date. Where the Customer requires that Non-Genus Semen is counted and batch checked there is an additional charge for this service as published in Genus’ current retail price list. 7.9 Where Customers elect to store Non-Genus Semen at TCSU, Genus regional centres or in the technician flasks storage charges will be applied. Genus may at its discretion vary the rate of such charges at any time. Genus Semen Storage 7.10 Where Customers elect to store Genus Semen at TCSU, a Genus regional centre or in the Genus AI Technician flasks, storage charges will be applied. Genus may at its discretion vary the rate of such charges at any time. 8. Semen Distribution Services 8.1 Where the Customer requires Genus Semen and/or Non- Genus Semen, as the case may be, to be distributed to the Customer or a third party(ies), by Genus or an independent carrier, the Customer shall provide clear written instructions in Writing to Genus [fourteen (14) days] in advance of the provision of the relevant Semen Distribution Service. 8.2 Genus will use reasonable endeavours to deliver Genus Semen and/or Non-Genus Semen, as the case may be, within the timescales set out in Conditions 8.4 and 8.6 below but time will not be of the essence of this Contract in respect of any such deliveries. The Customer agrees that Genus will have no liability for any delays in delivery for any reason whatsoever beyond Genus’ reasonable control (including without limitation any Force Majeure event). 8.3 From time to time, Genus may elect at its absolute discretion to notify the Customer that it reserves the right to refuse to deal with a particular Farmer Customer. Accordingly the Customer agrees that Genus may at its discretion refuse to accept a delivery of Genus Semen and/or Non-Genus Semen, as the case may be, for delivery to such a Farmer Customer or to refuse to deliver Genus Semen and/or Non-Genus Semen, as the case may be, to such a Farmer Customer. Genus DIY Service 8.4 Where the Genus DIY Service is to be used Genus will make the Genus Semen and/or Non-Genus Semen, as the case may be, available for delivery to the Customer or Farmer Customer on Genus’ next scheduled delivery date to Local Genus Service Centre falling at least fifteen (15) Working Days after delivery of the Genus Semen and/or Non-Genus Semen to TCSU. Genus Distribution Service 8.5 In the case of delivery of Genus Semen and/or Non-Genus Semen, as the case may be, (by Genus or an independent carrier) to an Other AI Provider in connection with the Genus Distribution Service, any fees charged by the Other AI Provider acting on behalf of the Customer shall be the sole responsibility of the Customer. Genus AI Technician Service 8.6 Where the Genus AI Technician Service is to be used Genus will deliver Non-Genus Semen to the Customer or Farmer Customer no later than ten (10) Working Days after delivery by the Customer to TCSU, unless agreed otherwise by Genus and the Customer. 8.7 Where, after Non-Genus Semen has been transferred to a Genus AI Technician’s field flask ready for delivery, the contract between the Customer and the Farmer Customer for the supply of such Non-Genus Semen is cancelled or terminated for whatever Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 5 reason, then the Customer may, within a period of two (2) months from the date of such cancellation or termination, either: 8.7.1 find an alternative local buyer for such Non-Genus Semen (being a person to whom such Non-Genus Semen may be supplied without requiring Defra’s consent); or 8.7.2 obtain the necessary approval of Defra to enable such Non- Genus Semen to be transferred for approved quarantine and then ontransferred to another buyer (in which case the Customer agrees to pay Genus (in accordance with Genus’ published rate card from time to time) for the storage and quarantine of such Non-Genus Semen and for the additional transportation involved), failing which, Genus reserves the right to destroy such Non-Genus Semen after the expiry of such two (2) month period. The provisions of clause 11.4 shall apply at all times notwithstanding any such cancellation or termination. 8.8 The Customer acknowledges that, in using the Genus AI Technician Service, a Farmer Customer may on occasion use more straws of Non-Genus Semen than he has purchased from the Customer. In such circumstances, Genus will inform the Customer at intervals of no more than three (3) months of any such over-use which occurs and the Customer agrees to promptly deliver to Genus free of charge sufficient numbers of straws of Non-Genus Semen from the same bull as shall be necessary to replenish stocks of the Non-Genus Semen. In the event that the Customer fails to replenish stocks of the Non-Genus Semen such that Genus can no longer perform the relevant Contract, Genus may at its discretion suspend work on, or terminate, the Contract with the Customer until such stocks have been replenished, without incurring any liability to the Customer or any Farmer Customer. 8.9 From time to time Genus will inform the Customer of any “faulty” straws of Non-Genus Semen (e.g. broken or blown straws) identified by Genus AI Technicians at the time of use and the Customer undertakes to replace such straws free of charge. Alternatively, Genus will leave the faulty straws on the Farmer Customers premises, and it will be the responsibility of the Farmer Customer to notify the Customer to replace the straws free of charge. 9. Indemnities 9.1 The Customer understands and acknowledges that this Contract is between Genus and the Customer and not between Genus and the Farmer Customer. Accordingly for the purposes of the Contract, all Non-Genus Semen delivered by the Customer to Genus for delivery via a Semen Distribution Service will be deemed to remain the Customer’s property for so long as it remains subject to the Semen Distribution Service. 9.2 The Customer agrees to indemnify Genus against all and any claims, liabilities, expenses, damages or losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Genus arising out of or in connection with any claim made against Genus by Farmer Customers relating to the genetic and general quality, capability, condition and characteristics of Non-Genus Semen which the Customer supplies to them via the Semen Distribution Service. 10. Suspension and termination 10.1 If the Customer becomes subject to any of the events listed in Condition 10.2 , or Genus has reason to believe that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Genus, Genus may; 10.1.1 stop any Goods and/or Non-Genus Semen in transit and suspend further deliveries; and/or 10.1.2 suspend provision of any Services under the Contract; and/or 10.1.3 hold by way of lien all materials or other property of the Customer in the possession of Genus in respect of work carried out or to be carried out by Genus for the Customer or for the general balance of account for the time being owing to Genus by the Customer; and/or 10.1.4 exercise its rights under Condition 16.3; and/or 10.1.5 terminate the Contract forthwith; and, if the Goods and/or Services or any part of them have been provided but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary but without prejudice to Genus' rights to any unpaid price for the Goods delivered and/or the Services provided under the Contract and to damages for loss (whether direct, indirect or consequential) suffered in consequence of such termination. 10.2 For the purposes of Condition 10.1, the relevant events are: 10.2.1 the Customer fails to give delivery instructions or take delivery of the Goods and/or Non-Genus Semen or make any payment when it becomes due (either under the Contract or under any other Contract or transaction between Genus and the Customer) or commits any other breach of the Contract and fails to remedy the same within seven (7) days of receiving Genus' request in Writing so to do, or shall act in such a way as to impede or interfere with Genus' performance of the Contract; 10.2.2 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; 10.2.3 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; 10.2.4 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; 10.2.5 (being an individual) the Customer is the subject of a bankruptcy petition or order; 10.2.6 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days; 10.2.7 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 6 is appointed over the Customer; 10.2.8 (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver; 10.2.9 a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets; 10.2.10 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 10.2.2 to 10.2.9 (inclusive); 10.2.11 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; 10.2.12 the Customer's financial position deteriorates to such an extent that in Genus’ opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and 10.2.13 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation. 11. Termination 11.1 Either party may terminate the Contract at any time upon not less than one (1) month's notice in Writing to the other party (or such shorter period of notice as Genus may in its absolute discretion agree to accept from the Customer). 11.2 In the event of Genus (other than in any of the circumstances set out in Condition 10.2) being prevented from completing the Contract either wholly or in part in accordance with the terms of the Contract by a Force Majeure Event then further performance of the Contract shall be suspended pursuant to this Condition for the period during which Genus is so prevented provided that in the event of the Contract being suspended pursuant to this Condition for a continuous period of more than three (3) months then either party may give the other notice in Writing to terminate the Contract forthwith. 11.3 Genus shall be under no liability whatsoever to the Customer for any direct, indirect or consequential loss or damage suffered by the Customer as a result of Genus' inability to perform its obligations under the Contract in the circumstances referred to in Condition 11.2. 11.4 Any termination or suspension of a Contract in accordance with these Conditions shall not relieve the Customer of the obligation to pay to Genus all charges accrued under the relevant Contract in respect of the Goods delivered and/or Services performed prior to the date of termination or suspension (as applicable) and so that Genus shall have a lien as provided in Condition 10.1.3. 11.5 Genus shall within fourteen (14) days after the date of termination refund to the Customer any payment made by the Customer under the Contract representing a prepayment for the Goods delivered and/or Services not yet performed prior to the date of termination but after deduction of any amount owing to Genus by the Customer whether or not under the Contract. 11.6 If Genus shall be prevented from delivering Goods and/or providing Services in accordance with the Contract as a result of: 11.6.1 delay or default on the part of the Customer; or 11.6.2 any other reason beyond Genus' reasonable control; and the Contract is not terminated in accordance with the other provisions of this Condition 11 Genus shall be entitled to reschedule the date or dates for such delivery of Goods and/or provision of the Services to such time or times as it shall reasonably require taking into account its commitments to third parties. Where the cause is delay or default on the part of the Customer, Genus shall be entitled to make a reasonable charge in respect of the Genus representative's visit to the Customer's premises when provision of the relevant Services was so prevented and shall also be entitled to be paid storage charges for the relevant Goods (and notwithstanding Condition 17, such Goods shall be at the sole risk of the Customer). 11.7 Where the Service to be provided under the Contract is the storage and/or distribution of Genus Semen and/or Non-Genus Semen, as the case may be, and any payment for such storage and/or distribution is more than three months overdue or either party terminates the contract pursuant to Conditions 10.1.5, 11.1, or 11.2, Genus may, without prejudice to its other rights under the Conditions, dispose of or destroy such Genus Semen and/or Non-Genus Semen upon such terms as Genus may see fit and apply any proceeds towards payment of the monies due to Genus and the costs of disposal. Notwithstanding the foregoing provisions of this Condition 11.7, the Customer shall notify Genus as soon as reasonably practicable in the event that the Customer no longer requires such Genus Semen and/or Non Genus Semen, as the case may be, to be stored and Genus shall dispose of the same. 11.8 Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination and shall not affect any continuing obligations of the parties under these Conditions. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect. 12. Warranty 12.1 Genus undertakes to use reasonable care and skill in performance of the Services and/or supply of the Goods and Genus undertakes to comply with all legislation and regulations for the time being in force applicable to Genus' performance of the Contract. 12.2 Notwithstanding the provisions of this Condition 12, and having due regard to the inherent risks and uncertainties involved in all biological processes, Genus does not guarantee, warrant or represent that a particular outcome will occur as a result of the supply by Genus of any Goods or the provision by Genus of any of the Services. In particular, but without limitation to the generality of the foregoing, the Customer agrees and acknowledges that: 12.2.1 any information published by Genus in respect of the past performance of any bull or of any bull’s progeny does not constitute a representation or warranty by Genus as to the future performance of the bull or its semen or of any of its progeny; and 12.2.2 Genus makes no representation or warranty that any Genus Semen and/or Non-Genus Semen, as the case may be, supplied under the Contract is free from any recessive genes which may lead to genetic abnormalities or contribute to disease, impairment or death. 12.3 Subject as otherwise expressly provided in these Conditions and subject always to the provisions of the Unfair Contract Terms Act 1977, the warranty set out in Condition 12 shall be in lieu of and to the exclusion of any other warranties, terms, conditions or undertakings, whether express or implied by statute, common law or otherwise howsoever to the fullest extent permitted by law. Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 7 13. Liability to Third Parties 13.1 If at any time it is alleged that the Goods (other than Genus Semen and/or Non-Genus Semen) infringe the rights of any third party or if in Genus’ reasonable opinion such an allegation is likely to be made, Genus may at its option and at its own expense: 13.1.1 modify or replace the Goods without detracting from the overall performance of the Goods, so as to avoid the infringement; 13.1.2 procure for the Customer the right to continue to use the Goods; or 13.1.3 repurchase the Goods from Customer at the price paid by the Customer less depreciation at the rate that Genus applies to its own equipment. 13.2 The Customer shall notify Genus immediately of any claim made or action brought or threatened alleging infringement of the rights of any third party. Genus shall have control over and conduct any such proceedings in such manner as it shall determine. The Customer shall provide all such reasonable assistance as Genus may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine. 13.3 If Genus or its employees or agents design the Goods pursuant to a commission from the Customer (whether in consideration of any order or otherwise) then any copyright or design or other Intellectual Property rights, as applicable, created in relation to the Goods shall vest in Genus. The Customer agrees that it shall do any acts and execute any documentation required by Genus to secure the proper vesting of title to such copyright or design rights in Genus. 14 Liability Limitation 14.1 Genus' liability to the Customer (whether for breach of contract, tort (including negligence), breach of statutory duty or otherwise howsoever) under the Contract shall (subject to the provisions of Condition 14.2, 14.6, 14.7 and 14.8) be limited as set out in this Condition. Genus shall not be liable to the Customer or any other party for: 14.1.1 non-delivery of Goods and/or Non-Genus Semen or nonperformance of Services unless the Customer notifies Genus of a claim in Writing within seven (7) days of the agreed date for delivery or performance; 14.1.2 shortages in quantity of Goods delivered unless the Customer notifies Genus of a claim in Writing within seven (7) days of receipt of the Goods by the Customer. Genus shall in no circumstances be liable for any discrepancy in the quantity of Non-Genus Semen, unless the Customer requires that the Non- Genus Semen is counted and batched checked on delivery by the Customer at TCSU in accordance with Condition 7.8; 14.1.3 damage to or loss of the Goods and/or Non-Genus Semen (or any part of them) in transit (where the Goods and/or Non- Genus Semen are carried by Genus’ own transport or by an independent carrier on behalf of Genus) unless caused by Genus’ negligence or fault and the Customer notifies Genus in Writing of a claim within seven (7) days of receipt of the Goods and/or Non-Genus Semen or the scheduled date of delivery, whichever is the earlier; 14.1.4 any loss, destruction or damage to Goods and/or Non- Genus Semen (or any part of them) whilst in Genus’ custody, during transit, storage or otherwise during the performance of the Services caused by: 126.96.36.199 an act of God, vandalism, malicious damage, fire, explosion or flood; or 188.8.131.52 semen straws exploding or floating out of the storage canister and/or the failure of a vacuum device during storage or transportation which results in the loss of all Genus Semen and/or Non-Genus Semen, as the case may be, in any one flask. The Customer accepts and acknowledges that the very nature of storing Genus Semen and/or Non-Genus Semen, as the case may be, in liquid nitrogen can result in straws breaking, exploding, or floating and that vacuum devices by their very nature can fail, resulting in all or some semen in such devises being dead; 14.1.5 any failure, loss, damage or defects in the Goods and/or Non-Genus Semen resulting from, caused by or occurring during: 184.108.40.206 fair wear and tear; 220.127.116.11 failure by the Customer to follow Genus’ Recommendations for Use or other instructions; 18.104.22.168 abnormal or unsuitable conditions of storage; and/or 22.214.171.124 storage or transportation by, use, or any act, neglect or default of the Customer, Farmer Customer, Other AI Provider or any other third party; 14.1.6 any loss or damage suffered or incurred (or likely to be suffered or incurred) by the Customer arising out of or in connection with any: 126.96.36.199 defective third party stock, unless Genus is proven liable; 188.8.131.52 the presence in any Genus Semen or Non-Genus Semen of any genetic defect or disorder (including without limitation Complex Vertebral Malformation); or 184.108.40.206 Non-Genus Semen, where it arrives at TCSU in a condition where it is not fit for sale or where it is found to be not viable or of poor quality on use. 14.1.7 any other defects in the Goods and/or Non-Genus Semen or Services unless notified to Genus in Writing within fourteen (14) days of receipt of the Goods by the Customer or performance of the Services or, in the case of Genus AI Technician Services, within nine (9) months from the time of performance of the Services (except where a claim is made on the grounds that an animal was inseminated with Genus Semen and/or Non-Genus Semen, as the case may be, other than a kind specified by the Customer and agreed by Genus and that fact could not have been reasonably ascertained without taking a blood typing test of the animal’s blood, the notification may be given in Writing at any time within twelve (12) months of the date of birth) or if the defect would not have been apparent on reasonable inspection, within twelve (12) months of receipt or performance. 14.2 If liability is accepted by Genus under Condition 14.1.1, 14.1.2, 14.1.3 or 14.1.7, or Genus is adjudged to be liable under these Conditions by a court of competent jurisdiction, Genus’ only obligation is, at its sole option and in order of preference as set out below: 14.2.1 to replace such Genus Semen and/or Non-Genus Semen, as the case may be, where Genus is able to supply from its own Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 8 stocks or from the same bull if available; or 14.2.2 if compliance with Condition 14.2.1 is not possible, to replace such Genus Semen and/or Non-Genus Semen, as the case may be, with semen that Genus deems, at its sole discretion, to be of similar genetic merit, if available; or 14.2.3 if compliance with Conditions 14.2.1 or 14.2.2 is not possible, to refund to the Customer whichever is the lower of the purchase price or the current retail price for such semen up to the maximum amount specified in the table below. Type of Semen Maximum Compensation Conventional Dairy £13 per straw lost or damaged Conventional Beef £10 per straw lost or damaged Sorted semen £35 per straw lost or damaged 14.3 No claims for shortages in quantity, loss, damage or defects in Goods or Non-Genus Semen will be accepted by Genus under Condition 14.1 unless any Goods or Non-Genus Semen in respect of which a claim is made together with the packaging are preserved intact as received for a period of twenty-one (21) days from notification of any such claim (or thirty-five (35) days in the case of an export order) and the Customer hereby agrees to permit Genus full and free rights of access to inspect the Goods and/or Non-Genus Semen and investigate the claim. 14.4 Subject to the remainder of this Condition 14.4, any liability of Genus in relation to the death, damage or injury of any animal shall be limited to the lower of (a) £3,500 and (b) the difference between the value of the animal immediately before the death, damage or injury and its value immediately thereafter. Genus shall have no liability for death, damage or injury to any animal as a result of pregnancy or parturition or any act or omission undertaken by independent contractors acting for the Customer or a Farmer Customer in the performance of any obligation of Genus. 14.5 Any liability of Genus in relation to the birth of any calf following any supply of Genus Semen and/or Non-Genus Semen, as the case may be, or the provision of the Genus AI Technician Service where the Genus Semen and/or Non-Genus Semen, as the case may be, supplied or used was other than of the kind specified by the Customer and agreed by Genus shall be limited to the lower of (a) £1,000 and (b) the difference in value between the calf as born and the value on the date of birth of such calf of a calf produced by use of the correct Genus Semen and/or Non- Genus Semen, as the case may be, (such difference to assume that calves of the same sex would have been born regardless of the semen used). 14.6 In all instances other than as specified in Conditions 14.4 and 14.5, but subject to Conditions 14.7 and 14.8 and without prejudice to Conditions 14.1, 14.2 and 14.3 the total aggregate liability of Genus for direct losses whether for negligence, breach of contract, breach of statutory duty, misrepresentation, restitution or otherwise shall in no circumstances exceed the lower of: (a) the fees paid and/or due from the Customer in respect of relevant Goods and/or Services supplied under the Contract in the twelve (12) month period preceding the event or earliest of the connected events giving rise to any claim; or (b) twenty five thousand pounds (£25,000). 14.7 In no circumstances and notwithstanding any other provision of these Conditions shall Genus be liable for any indirect, special or consequential liabilities, losses, charges, damages, costs and expenses suffered by the Customer howsoever caused and including, without limitation, pure economic loss, loss of anticipated profits, goodwill, review, reputation, anticipated savings, management time, business receipts or contracts or losses or expenses resulting from third party claims. 14.8 Nothing in these Conditions shall exclude or limit any liability of Genus for: (i) death or personal injury of any human being resulting from Genus' negligence; (ii) any liability under Section 2(3) Consumer Protection Act 1987; (iii) any other liability which it is illegal to exclude or limit or to attempt to exclude or limit; or (iv) for fraud or fraudulent misrepresentation. 15. Customer's obligations 15.1 The Customer shall: 15.1.1 obtain sufficient and adequate insurance cover to cover the value of any loss or destruction of or damage to Genus Semen and/or Non-Genus Semen whilst in Genus’ custody (for storage or distribution) or otherwise during the performance of the Services. Genus do not insure Non-Genus Semen or Genus Semen which has been purchased by Customer and remains in Genus Storage Service, Genus Distribution Service or in Customer’s/Farmer Customer’s Farm Flask. It is the Customer’s responsibility to insure against any risks, loss or damage specified in Condition 14.1 taking into account the limits of Genus’ liability specified in Conditions 14.2.3, 14.4, 14.5 and 14.6; and 15.1.2 keep and provide to Genus all such records and information as are relevant to the subject matter of the Services and to the provision of the Services by Genus; 15.1.3 co-operate with Genus in all matters relating to the Services; 15.1.4 provide (and, as applicable, procure that the Farmer Customer(s) shall provide) Genus, its employees, agents, consultants and subcontractors, with access to the Customer’s (or, as applicable, the Farmer Customer’s) premises and other facilities as reasonably required by Genus; 15.1.5 prepare the Customer’s premises for the supply of the Goods and/or Services and, as applicable, procure that the Farmer Customer (s) shall prepare its premises for the supply of the Goods and/or Services; 15.1.6 obtain and maintain (and, as applicable, procure that the Farmer Customer(s) shall obtain and maintain) all necessary licences, permissions and consents which may be required before the date on which the Services are to start or Goods and/or Non-Genus Semen are to be delivered; and 15.1.7 where Farm Flasks are stored at the Customer’s or the Farmer Customer’s own premises, ensure and (as applicable) procure that the Farmer Customer(s) shall ensure that the Farm Flasks are maintained properly, are in good working order and dipped at weekly intervals to check that liquid nitrogen levels are adequate. The Customer shall, and shall procure that the Farmer Customer(s) shall, keep a record of such readings which shall be displayed adjacent to the Farm Flasks. Where Genus provides a liquid nitrogen service, in the event of the level of liquid nitrogen reaching the minimum acceptable level between deliveries the Customer or Farmer Customer(s), as the case may be, shall telephone Genus in order to arrange for a delivery of liquid nitrogen to be made. Genus accepts no liability whatsoever for any loss or damage caused by faulty or defective Farm Flasks or failure of the Customer and/or Farmer Customer(s) to advise Genus of low liquid nitrogen levels including, without limitation, any liability for damages caused by such inadequate liquid nitrogen levels, or any failure by the Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 9 Customer and/or Farmer Customer(s) to maintain such Farm Flasks in accordance with the manufacturer’s instructions. In the case of any Farm Flasks which have been purchased from, or supplied to, Customer by Genus, liability for the Farm Flask lies entirely with the manufacturer of the Farm Flask and Genus accepts no liability whatsoever in respect of such Farm Flask. 15.2 Where the Customer chooses to use the Genus AI Technician Service, the Customer shall (and, as applicable, shall procure that the Farmer Customer shall) comply with all Genus’ directions for insemination of the Genus Semen and/or Non-Genus Semen and Genus shall have no liability whatsoever for any loss or damage suffered by the Customer and/or Farmer Customer in consequence (in whole or in part) of any failure to so comply. The Customer shall indemnify Genus in respect of any loss, damage or liability arising out of the Customer’s and/or Farmer Customer’s failure to comply with this Condition 15.2. 15.3 The Customer shall ensure that where the Services are to be provided at the Customer's own premises, and shall procure that the Farmer Customer(s) shall ensure that where the Services are to be provided at the Farmer Customer’s premises: 15.3.1 each animal in respect of which the Services are to be provided is clearly and properly identified to the Genus' representative; 15.3.2 adequate facilities are provided for such animal to be properly secured for the purposes of the provision of the Services and that if the Customer and/or Farmer Customer(s) or their staff are not present the facilities are such that they can be safely used by Genus' representative single-handed (including, without limitation, sufficient lighting and health and safety considerations); and 15.3.3 the Genus' representative is given access to a supply of clean running water; 15.3.4 where a Genus RMS Technician is required to enter a pen containing loose animals in order to provide the Services, Genus shall have no liability whatsoever for the death or injury of any of the animals in the pen which may fall or injure themselves; and 15.3.5 where a Genus RMS Technician is requested by Customer and/or Farmer Customer to help to secure an animal in readiness for the provision of the RMS service, Genus shall have no responsibility for any accidents or injuries to animals or people while providing this help. Genus shall not be obliged to provide such help. 15.4 Where the Customer is not the sole owner of any Genus Semen and/or Non-Genus Semen to be stored by Genus as part of the Services he shall notify Genus in Writing of that fact and warrants and represents that he has full authority to accept these Conditions on behalf of the owner or any other joint owner. 15.5 In the event that the Customer sells Non-Genus Semen to a third party (“New Owner”), whilst such Non-Genus Semen is being stored by Genus, the Customer shall be responsible for: 15.5.1 notifying Genus immediately in Writing of that fact and providing Genus with full details of the New Owner in order that Genus can transfer ownership and/or distribute the Non-Genus Semen to the New Owner; 15.5.2 securing the agreement of the new owner to these Conditions; 15.5.3 paying Genus’ fees for transfer of ownership and/or distribution of the Non-Genus Semen to the New Owner (unless Genus agrees otherwise); and 15.5.4 insuring the Non-Genus Semen during transit to the New Owner. 15.6 In the event that the New Owner is to pay Genus’ fees referred to in Condition 15.5.3 above and the New Owner defaults on payment, Genus reserve the right to charge the Customer in respect of any outstanding fees which are due for payment. 15.7 The Customer shall, and (as applicable) shall procure that the Farmer Customer shall, use all reasonable endeavours to ensure that the Genus' representative and his vehicle and equipment are safe and protected from injury and damage whilst on the Customer's premises, or the Farmer Customer’s premises (as the case may be) and shall indemnify (and keep indemnified) Genus against any loss whatsoever arising from any breach by the Customer and/or the Farmer Customer of his obligations under this Condition 15.7. 15.8 Where Genus provides RMS services, the Customer shall permit (and, as applicable, shall procure that the Farmer Customer(s) shall permit) Genus to store Genus Items on the Customer’s farm (or the Farmer Customer’s farm, as applicable), by prior agreement with the Customer (or Farmer Customer, as applicable). The Customer or Farmer Customer (as the case may be) shall at all times keep such Genus Items safe, dry and readily available for the Genus RMS technician to use on the RMS visit to the Customer’s or Farmer Customer’s farm. In the event that such Genus Items are lost or damaged by the Customer or Farmer Customer, the Customer or Farmer Customer shall be liable for their replacement value. The Genus Items will remain entirely the property of Genus at all times. 15.9 Any failure by the Customer to comply with the obligations in this Condition 15 shall entitle Genus' representative at his discretion to refuse to provide the Services in which event the provisions of Conditions 11.2 and 11.6 shall apply. 16. Title to Goods 16.1 Until payment in full of all monies due and owing by the Customer to Genus on any account whatsoever has been received in full (in cash or cleared funds), legal and beneficial ownership of the Goods shall be retained by Genus notwithstanding that the risk in the same shall pass to the Customer at the time of delivery. 16.2 Until title to the Goods has passed to the Customer, the Customer shall: 16.2.1 hold the Goods on a fiduciary basis as Genus’ bailee; 16.2.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Genus’; and 16.2.3 maintain the Goods in satisfactory condition, store the Goods according to product instructions and keep them insured against all risks for their full price from the date of delivery; 16.2.4 notify Genus immediately if it becomes subject to any of the events listed in Condition 10.2; and 16.2.5 give Genus such information relating to the Goods as Genus may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business (subject to the Customer obtaining any applicable licence, which it shall be the Customer’s responsibility to obtain). 16.3 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 10.2, or Genus reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 10 the Goods have not been resold, used or irrevocably incorporated into another product, and without limiting any other right or remedy Genus may have, Genus may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. 17. Risk 17.1 The risk in the Goods and any Non-Genus Semen shall pass to the Customer at the time when delivery is deemed to be effected as provided in the Condition 5.1. 17.2 Any property of the Customer in Genus’ possession or under its control and all property supplied to Genus or on behalf of the Customer are held by Genus at the Customer’s risk. 17.3 From the time of delivery until ownership of the Goods passes to the Customer in accordance with Condition 16, the Customer shall insure the Goods against all risks for their full value with a reputable insurance office to the reasonable satisfaction of Genus. Upon request, the Customer shall use all reasonable endeavours to have Genus’ interest in the Goods noted on the insurance policy and shall produce the policy of insurance to Genus. The Customer shall hold the proceeds of any claim on the insurance policy on trust for Genus and shall immediately account to Genus with the proceeds. 18. Health and Safety at Work Act 1974 The attention of the Customer is drawn to the provisions of Section 6 of the Health and Safety Act 1974. Genus will make available upon request information on the design, construction, installation, appropriate lighting levels to perform the Services and use of the Goods and/or Non-Genus Semen to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used. It is the responsibility of the Customer to take such steps as are necessary to ensure that such information relevant to the Goods and/or Non-Genus Semen and/or Services which is appropriate is made available to its servants, agents or any person to whom the Customer supplies them and to any other person to whom the Customer considers (or reasonably should consider) any such information should be given. 19. Customer’s warranties 19.1 The Customer warrants, represents and undertakes to Genus that the Customer will install, operate or otherwise use or store the Goods and/or Non-Genus Semen 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 Goods and/or Non-Genus Semen. 19.2 The Customer shall indemnify (and keep indemnified) Genus against any claim, loss or damage (including, without limitation, damage to the reputation of Genus) arising directly or indirectly from any breach of the warranty, representation and undertaking contained in Condition 19. 20. Description 20.1 Genus undertakes to use reasonable care and skill in the compilation of the Literature. 20.2 Notwithstanding the provisions of Condition 20.1, any figures, statements, descriptions, illustrations, photographs, drawings or any other matters contained in the Literature are not guaranteed to be accurate and are intended merely to represent a general picture of Genus' goods and services and shall not form part of the Contract. 21. Data Protection 21.1 In relation to all Personal Data, Genus shall at all times comply with the DPA as a data processor or data controller (as appropriate), including if necessary maintaining a valid and up to date notification under the DPA covering the data processing to be performed in connection with the Contract. 21.2 Genus shall, to the extent that it processes any Personal Data in connection with the Customer: 21.2.1 act only on instructions from the Customer in relation to its processing of the Personal Data; 21.2.2 implement and maintain appropriate technical and organisational measures to ensure that the Personal Data is kept secure, together with appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing, accidental loss or destruction or damage; 21.2.3 use and retain Personal Data only for the purposes of fulfilling its obligations under the Contract; and 21.2.4 not transfer Personal Data to any country outside the European Union without the prior written consent of the Customer. 21.3 Genus shall not be obliged by Conditions 21.1 or 21.2 or any other Condition to do anything which would constitute a breach by Genus of its obligations as a data processor and/or data controller under the DPA. 22. Confidential Information 22.1 In this Condition 22, Confidential Information means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by Genus to the Customer whether before or after the date of the Contract including information relating to Genus’ products, operations, processes, plans or intentions, product information, know-how, trade secrets and other Intellectual Property, market opportunities, business affairs, financial information and other confidential information. 22.2 During the term and after expiry or termination of the Contract for any reason, the Customer: 22.2.1 may not use Confidential Information for any purpose other than the performance of its obligations under the Contract; 22.2.2 may not disclose Confidential Information to a person except with the prior written consent of Genus or in accordance with Condition 22.3 and 22.4; and 22.2.3 shall make every effort to prevent the use or disclosure of Confidential Information, including by restricting access to Confidential Information. 22.3 During the term, the Customer may disclose Confidential Information to any of its directors, other officers and employees (each an Authorised Recipient), to the extent that disclosure is necessary for the purposes of the Contract. 22.4 Before disclosure of Confidential Information to an Authorised Recipient, the Customer shall ensure that the Authorised Recipient executes a confidentiality agreement in favour of Genus in a form approved by Genus. The Customer shall ensure that the Authorised Recipient at all times complies with the confidentiality agreement. Prolog.69884.c:Layout 1 15/11/2012 09:46 Page 11 Genus Breeding Ltd, Alpha Building, London Road, Nantwich CW5 7JW. Tel: 0870 162 2000 Fax: 01270 616702 www.genusbreeding.co.uk Calls may be monitored for training purposes. 22.5 Conditions 22.2 to 22.4 do not apply to Confidential Information which: 22.5.1 is, at the date of the Contract, or at any time after that date becomes, publicly known other than by the Customer’s or Authorised Recipient’s breach of these Conditions; 22.5.2 can be shown by the Customer to Genus’ satisfaction to have been known by the Customer before disclosure by Genus to the Customer; or 22.5.3 is required to be disclosed by law or a court of competent jurisdiction. 23. Severability Notwithstanding that the whole or any part of any provision of the Conditions may prove to be illegal or unenforceable the other provisions of the Conditions and the remainder of the provision in question shall remain in full force and effect. 24. Applicable Law The Conditions shall be construed and take effect in all respects in accordance with English law, so that any dispute or difference between the parties as to the interpretation of the Conditions or in respect of any matter arising under, out of or in connection with the Conditions shall be governed in all respects by English law. 25. Jurisdiction Each of the parties irrevocably agrees for the exclusive benefit of the other party that the courts of England and Wales, shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with the Conditions and for such purposes hereby irrevocably and unconditionally submits to the jurisdiction of such courts. 26. Notices 26.1 Any notice required or permitted under the terms of the Conditions or required by statute, law or regulation shall (unless otherwise provided by the Conditions or the statute, law or regulation concerned, if any) be in Writing and shall be sufficiently given if forwarded by hand, pre-paid mail (by pre-paid airmail if to another country) or sent by fax to the relevant party’s registered office or principal place of business or to such other address or fax number as may from time to time be designated in Writing by the relevant party. 26.2 Any such notice shall be deemed to have been received and given: (a) in the case of delivery by hand, at the time of delivery; (b) in the case of pre-paid mail, two days (or five days if sent by air to another country) after the date of mailing; and (c) in the case of fax, at the time of transmission if within normal business hours of the addressee and, if not, at 09.30 hours local time on the next following normal business day for the recipient subject (in either case) to production of a transmission report from the machine which sent the fax indicating that the fax was sent in its entirety to the fax number of the recipient and provided that a copy is also sent by pre-paid mail (by pre-paid airmail if to another country) on the date of transmission. 26.3 E-mail notice shall not be valid for the purposes of these Conditions. 27. Third Party Rights Nothing in the Conditions is expressly or impliedly intended to confer on any third party any right to enforce any of the provisions of the Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999. 28. Assignment The Customer shall not assign, encumber, dispose of, declare itself trustee of, or otherwise transfer or divest himself in any way of the Customer’s rights under the Contract or the Conditions. 29. Waiver of Remedies No forbearance, delay or indulgence by Genus in enforcing the provisions of the Conditions shall prejudice or restrict the rights of Genus nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy conferred upon or reserved for Genus by the Conditions is exclusive of any other right, power or remedy available to Genus and each such right, power or remedy shall be cumulative.