1.1 In these terms and conditions:

"Customer" means the person from whom an Order to provide Services and/or supply Goods is received by Genus;

"Conditions" means these terms and conditions together with (where the Contract relates to or includes ET Services) the ET Procedures and includes any additional terms and conditions agreed in Writing by Genus;

"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;

"ET Procedures" means Genus' separately published procedures relating to ET Services;

"ET Services" means embryo collection and transfer services including, without limitation, associated embryo freezing, storage and transport services;

"Genus" means Genus Breeding Limited (registered in England with no. 1192037) whose registered office is situated at da Vinci House, Basing View, Basingstoke, Hampshire, RG21 4EQ and also, where the context so admits, any authorised representative (whether an employee or sub-contractor) of Genus;

"Goods" means the Goods which Genus is to supply and/or store under the Contract and, where the context so admits, includes processed materials and/or manufactured products whether or not processed or manufactured by Genus;

"Farm Flask" means the farm flask used by farmers for the storage of animal semen;

"Literature" means Genus' catalogues, pamphlets, price lists and advertising literature;

"Order" means an order placed by the Customer for the provision of Services and/or the supply of Goods whether verbally or in Writing;

"Services" means the work or services (including, without limitation, consultancy and the storage and transportation of semen and embryos, the artificial insemination of a cow or heifer with the semen of a bull, ET Services, pregnancy scanning, foot trimming and freeze branding) to be provided by Genus under the Contract;

"Recommendations for Use" means the recommendations (if any) relating to the storage, handling, application and/or use of the Goods contained in the published literature of Genus (or if relevant, a Supplier) or any recommendations made in Writing by an authorised representative of Genus (or if relevant, a Supplier);

"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;

"Writing" includes e-mail, facsimile transmission and comparable means of communication.

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.

 

3. Price

4. Delivery

5. Instalments

2. If Goods 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.

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 provision of Services under the Contract but without prejudice to any other right Genus may have under any of the other provisions of the Conditions.

6. Terms of Payment

7. Suspension and termination

1. stop any Goods in transit and suspend further deliveries; and/or

7.2 suspend work under the Contract; and/or

7.3 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

7.4 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.

8. Termination

8.1 Genus may terminate the Contract at any time upon not less than one month's notice in Writing to the Customer and the Customer may terminate the Contract at any time by not less than one month's notice (or such shorter period of notice as Genus may in its absolute discretion agree to accept) in Writing to Genus.

8.2 In the event of Genus (other than in any of the circumstances set out in Condition 7) being prevented from completing the Contract either wholly or in part in accordance with the terms of the Contract for any reason whatsoever beyond its reasonable control 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 months then either party may give the other notice in Writing to terminate the Contract forthwith.

8.3 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 8.2.

8.4 Any termination of the Contract shall not relieve the Customer of the obligation to pay to Genus all charges accrued under the Contract in respect of the Goods delivered and/or Services performed prior to the date of termination and so that Genus shall have a lien as provided in Condition 6.4. Genus shall within 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.

8.5 If Genus shall be prevented from delivering Goods and/or providing Services in accordance with the Contract as a result of:

2. delay or default on the part of the Customer; or

3. any other reason beyond Genus' reasonable control;

and the Contract is not terminated in accordance with the other provisions of this Condition 8 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 or 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 15, such Goods shall be at the sole risk of the Customer).

8. 6 Where the Services to be provided under the Contract are the storage of semen or embryos or ET Services involving the storage of embryos and any payment for such storage is more than three months overdue or either party terminates the contract pursuant to Conditions 7.4, 8.1, or 8.2, Genus may, without prejudice to its other rights under the Conditions, destroy such semen or embryos or dispose of such semen or embryos 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.

9. Claims for damage in transit, shortages or defects

9.1 Subject and without prejudice to Conditions 9.2 and 11, where Genus is responsible under the Contract for delivery of Goods to the Customer’s premises or to premises nominated by the Customer Genus undertakes to make up any shortage or to repair or at its discretion replace free of charge any Goods lost, partially lost or damaged in transit to the contracted place of delivery, the time for the delivery of the same shall be extended for such period as Genus may reasonably require.

9.2 No claims for non-delivery, partial loss or damage to or defects in Goods or non-performance or defective performance of Services will be accepted by Genus unless:-

9.2.1 they are notified in Writing by the Customer to Genus (with a copy to the carrier if Genus’ own vehicles were not used) within 7 days after the day of delivery (in the case of partial loss or damage in transit of Goods) or (in the case of non-delivery of Goods or non-performance of Services) 14 days after the agreed date for delivery or performance (except that where a claim is made on the grounds that an animal was inseminated with semen or had transferred to it an embryo in each case other than of the kind specified by the Customer and agreed by Genus and that fact could not reasonably be ascertained without taking a blood typing test of the animal’s blood, the notification may be given in writing at any time within 12 months of the date of the birth); and

9.2.2 any Goods in respect of which a claim is made together with the packing are preserved intact as received for a period of 21 days from notification of any such claim (or 35 days in the case of an export order) and the Customer hereby agrees and acknowledges to permit Genus full and free rights of access to inspect the Goods and investigate the claim; and

9.2.3 any claim relating to defects in Goods or Services supplied is notified by the Customer to Genus in writing as soon as the Customer becomes aware of any event which may give rise to a claim against Genus and in any event by not later than one year after the date of delivery or performance.

10. Warranty

Genus undertakes to use all 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.

11. Limitation of Liability

2. Notwithstanding the provisions of Condition 10, 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:

   2. Genus does not guarantee, warrant or represent that any embryo collection will result in the recovery of any or any viable embryos or that embryo transfer will result in a viable pregnancy;

   3. 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

   4. Genus makes no representation or warranty that any semen supplied under the Contract is free from any recessive genes which may lead to genetic abnormalities or contribute to disease, impairment or death.

11.2 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 10 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.

11.3 Genus' liability to the Customer (whether for breach of contract, negligence, under statute or otherwise howsoever) under the Contract shall (subject to the provisions of Condition 11.13) be limited as follows:-

2. the current published selling price of (or replacement with) alternative semen or an alternative embryo which is in Genus' reasonable opinion of as near as possible equivalent genetic merit to the semen or, as the case may be, embryo in question.

11.4 In no circumstances will such compensation exceed £30 per dose of semen or £200 per embryo unless such loss, destruction or damage is caused by Genus' negligence in which case Genus' liability will be limited to Genus' current published selling price for semen or an embryo which is in Genus' reasonable opinion of as near as possible equivalent genetic merit to the semen or, as the case may be, embryo in question.

11.5 Where the Customer considers any individual dose of semen is valued at more than £30 or any individual embryo is valued at more than £200 he is strongly advised to effect separate insurance cover for the loss or destruction of or damage to such semen or embryo for the value in excess of £30 or, as the case may be, £200. Genus' compensation arrangements will not apply where the whole value of the semen or embryo (rather than merely the excess over £30 or, as the case may be, £200) is insured separately by the Customer.

11.6 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.

11.7 Any liability of Genus in relation to the birth of any calf following any supply of semen or an embryo by Genus 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 semen or, as the case may be, embryo (such difference to assume that calves of the same sex would have been born regardless of the semen or embryo used).

11.8 The Customer agrees and acknowledges that in the case of ET Services the techniques involved carry an inherent risk that donors and recipients may suffer loss of breeding potential as a result. Genus accepts no liability whatsoever for ill health, infertility, injury or loss of breeding potential of any donor or recipient as a result of the provision of ET Services unless and to the extent caused by Genus' negligence and then only up to a maximum amount as specified in this Condition 11. Accordingly, the Customer is strongly advised to effect "all risks" insurance cover for donors and recipients involved in ET Services.

2. Any liability of Genus in relation to the birth of any calf following the artificial insemination of an animal by Genus or the transfer of an embryo to a recipient by Genus where the semen or, as the case may be, embryo 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 semen or, as the case may be, embryo (such difference to assume that calves of the same sex would have been born regardless of the semen or embryo used).

12. Customer's obligations

12.4 Where ET Services are to be provided (whether or not at the Customer’s own premises) the Customer shall comply with the ET Procedures.

12.5 Where the Customer is not the sole owner of the donor, recipient or embryos involved in ET Services under the Contract or is not the owner of any semen or embryos 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. Where the ownership of any semen or embryo stored as part of Services is transferred during storage the Customer shall notify Genus immediately in writing of that fact and undertakes to Genus to secure the agreement of the new owner to these Conditions.

12.6 The Customer shall use all reasonable endeavours to ensure that Genus' representative and his vehicle and equipment are safe and protected from injury and damage whilst on the Customer's premises and shall indemnify (and keep indemnified) Genus against any loss whatsoever arising from any breach by the Customer of his obligations under this Condition.

12.7 Any failure by the Customer to comply with the obligations in this Condition 12 shall entitle Genus' representative at his discretion to refuse to provide the Services in which event the provisions of Conditions 8.2 and 8.5 shall apply.

13. Title to Goods

Until payment in full of all monies due and owing by the Customer to Genus on any account whatsoever has been received in full, 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.

17. Description

21.1 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.

21.2 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.