These terms and conditions (“GENEADVANCE Terms”) form part of the Agreement. This Agreement (as defined in the Proposal) is made between ABS Global, Inc. (“ABS”) and the Customer listed on the first page of the Proposal (“Customer” or “you”). ABS and Customer may each be referred to as a “Party” and collectively as the “Parties.” Any notice given under this Agreement shall be in writing in the English language and shall be given by hand or sent by prepaid airmail, or where specifically indicated by e-mail, to the address of the receiving Party on the first page of the Proposal.
1. DEFINITIONS. “Breeding Services” means artificial insemination, RMS, ovum-pick up, embryo transfer, invivo fertilization, pregnancy checks, or any related breeding or veterinary services; “Distributors” means distributors, resellers, sales agents, authorized representatives, or independent contractors; “Germplasm” means bovines, semen (sexed or conventional), and embryos; “Genetic Materials” means 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 Services” means custom indices (including the Custom Index), GENEADVANCE Reports, genetic management services, laboratory services, genotypes, and other genetic advice, analysis, reports, results, or recommendations; “Products” means Germplasm, Breeding Services, Genetic Services, udder care products, breeding certificates, and equipment or supplies; “Progeny” means first-generation progeny made from Germplasm. Other terms defined in the Agreement have the meanings given. The word “including” shall be understood to mean “including without limitation.”
2. ORDERING & SHIPPING. All orders of Products under the Agreement 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. Customer shall return or destroy all Nonconforming Products as instructed by ABS.
3. PRICE & PAYMENT. ABS will invoice you monthly for the Animal Fees, Technology Fees, and any other fees assesses as set forth in this Agreement (“Program Fees”). All payments are due 30 days from the invoice date. If ABS does not receive payment of any sum due to it on or before the due date, simple interest shall thereafter accrue on the sum due to ABS from the due date until the date of payment at a per-month rate of 1.5%, or the maximum permitted by law, whichever is lower. You shall provide ABS with any information or documentation necessary for ABS to invoice you the amount due to ABS. Payment of sales tax is your responsibility and shall be applied to orders in accordance with all applicable tax laws. All Products ship Incoterms 2010 CPT (first carrier) to the invoice location, unless otherwise stated by ABS. Except as otherwise stated herein, title will pass to the customer at first carrier. For any Products charged by pregnancy, pregnancy shall mean a positive pregnancy check (ultrasound or non- return) between 30- and 45-days post breeding, unless otherwise agreed by ABS.
The Animal Fee will be reviewed and adjusted annually to reflect increases in the Consumer Price Index published by the United States Department of Labor. ABS will provide you written notice of any increase starting on the statement the increase in applied. If at any time during the Term there an extraordinary or significant increase in the cost of supplying or producing the Products, including due to hyperinflation, if ABS requests, you agree to meet and negotiate a new Animal Fee and any change shall be agreed in writing. If the Parties are unable to mutually agree a new price within 30 days, ABS may at its option terminate the Agreement on 15 days’ prior written notice to you.
If the Custom Index or any of Customer Background information under Section 1 of the Proposal is incorrect or changes, ABS may in its sole discretion to change the Animal Fee by providing written notice to you. You will have 15 days from receipt of the new Animal Fee to accept or reject by emailing your Key Account Manager. If you reject the new Cow Price, the Agreement shall automatically terminate and any outstanding amount due from you will be immediately payable. If ABS does not receive such written communication from you in the 15 day period, the new Animal Fee will be deemed accepted and the Term will continue.
4. 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 prior 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 Genetic Materials for any research or development use, including in public/private research programs. Sexed semen may be used solely for single artificial insemination of a single bovine, with the intent to produce a single offspring. All rights in Germplasm and Progeny not expressly granted under this Section 4 are reserved by ABS and all other uses are strictly prohibited without ABS’ prior written consent. In addition to the above, Germplasm from dairy bulls (of any age or status) that rank in the top 200 of their breed on the NM$ or TPI indexes1, top 50 on the $CM or JPI indexi for (G) Statusii bulls 18 months and older or otherwise listed as an “Icon Sire” on the ABS Icon Website at www.absglobal.com/services/icon-sires (“Icon Germplasm”) may only be used: (a) in females unencumbered by any 3rd-party right or interest, including any purchase or breeding rights or restrictions (“3rd Party Restrictions”), and (b) where any resulting Progeny or Genetic Materials will be owned or controlled by you and unencumbered by 3rd Party Restrictions. Any embryos you create (as permitted) from Icon Germplasm (“Icon Embryos”) may only be used in your herd and may not be sold, marketed, leased, traded, or otherwise transferred (“Transferred”) to any party unless permitted in writing by ABS. You must retain unencumbered ownership of any female that is, or could be, pregnant with Progeny from Icon Germplasm or an Icon Embryo until she is no longer pregnant. A. DAIRY PROGENY: You agree to use dairy Progeny from Germplasm strictly as set forth in this section. You grant ABS the exclusive and irrevocable right and option to test and purchase any such Progeny or make and acquire Genetic Materials from such Progeny, for so long as the Progeny is owned by you, under the procedures and prices listed on the ABS Icon Website (“Option”). For clarity, ABS has no obligation to purchase Progeny or Genetic Materials. In this section, “Tested” means an animal that has received an official Council of Dairy Cattle Breeding (CDCB) evaluation or other evaluation approved by ABS in writing. Animals with no evaluation or an unapproved evaluation shall be considered “Untested”. In addition to the foregoing:
i) Male Progeny: Male Progeny created from Icon Germplasm may only be: (a) Transferred into the beef supply chain (e.g. sale to a slaughterhouse or feed yard) for the purpose of slaughter (“Beef Supply Chain”), either as a steer or with the express agreement from the buyer that it will remain in the Beef Supply Chain, or (b) sold to ABS under its Option, and for no other purpose unless otherwise permitted in writing by ABS. Male Progeny from non-Icon Germplasm may only be Transferred into the Beef Supply Chain or, if Untested, for natural service unless otherwise permitted in writing by ABS. Without limiting the foregoing, you may not create, use, or sell any male Progeny for the purpose of collecting or selling semen, or collect semen from male Progeny for yourself or any other party.
ii) Female Progeny: Female Progeny (of any age or status) created from Icon Germplasm that: (a) is Untested or (b) is Tested and ranks in the top 2,000 of its breed on the NM$ or TPI index1, top 500 on the CM$ or JPI index1, or the top 500 of the PLI, RZG, LPI, PFT, BPI, ISU, NVI or NTM indexiii, for females six months and older (each an “Icon Daughter”) and her Genetic Materials, may only be used in your herd and cannot be Transferred until the Icon Daughter reaches 24-months of age, unless Transferred to ABS under its Option or otherwise permitted by ABS in writing. During the 24-month period you may not create Progeny from Icon Daughters that would be subject to 3rd Party Restrictions. You are free at any time to Transfer female Progeny that (x) has been Tested and ranks below the criteria listed under Section 4(A)(ii)(b), or (y) was created from non-Icon Germplasm.
B. BEEF PROGENY: NuEra Germplasm may only be used to create a terminal crossbred Progeny (beef x dairy cross or beef x beef cross) that is Transferred into the Beef Supply Chain. Without limiting the foregoing, you may not create, use, or sell any male Progeny of NuEra sires for the purpose of collecting or selling semen, or collect semen from such male Progeny for yourself or any other party.
5. BREEDING SERVICES. Breeding Services will be provided at times determined by ABS in its reasonable discretion. RMS includes services performed both on farm and off farm and travel time. The technician FTE included in the Proposal is an estimate based on your annual needs and does not imply any specific schedule or minimum hours per week. ABS will use reasonable efforts to keep you informed about when RMS technicians will be on farm, but technicians may arrive to chalk, breed, or perform other services without prior notice to you. You are responsible, at your own cost, for preparing animals for receipt of any Breeding Services in accordance with ABS’ instructions. Any hormones or other veterinary drugs you elect to use in such preparation are used at your sole responsibility, liability, administration, and cost. Additional fees may apply if animals are not properly prepared. You are responsible for Products not used during the Breeding Services, including semen and fresh or frozen embryos. If you have a sync protocol or other needs that require a set breeding schedule, please contact your ABS representative. ABS may provide certain Breeding Services through a subcontractor.
6. GENETIC SERVICES. You agree to provide ABS with any consents, assistance, and information ABS reasonably requests related to Genetic Services. You acknowledge and agree that any indices, genotypes, advice, analysis, reports, recommendations, results, tools, or other information provided from the Genetic Services (“GS Results”) is for your internal use only and their value is dependent on the correctness and quality of the data you provide, your cooperation, and other factors outside of ABS’ control including herd management, operational decisions, and environment.
7. GENETIC TIERS. Your genetics are selected as determined by the genetic tier indicated in your Proposal. ABS bulls are first ranked by value by ABS (“ABS Ranking”) then the genetics selected for you depending on your genetic tier selection and Custom Index. Customers in the Silver genetic tier on average will receive semen units from bulls that exclude the top 40% in the ABS Ranking. Customers in the Gold genetic tier on average will receive semen units from bulls that exclude the top 20% in the ABS Ranking. Customers in the Platinum genetic tier may receive semen units from bulls throughout the entirety of the ABS Ranking. ABS will use commercially reasonable efforts to accommodate your requests to exclude certain bulls based on specified criteria acceptable to ABS. Germplasm subject to sale under a separate signed contract will be considered “unavailable” unless ABS has your signed contract on file. Non- commercial Germplasm (e.g. Elite or Prerelease) is not part of the GENEADVANCE Program unless otherwise specified by ABS in writing.
8. ABS warrants that Germplasm, udder care products, breeding certificates, and 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 (A) OF THE GENETIC MAKE-UP OF THE PRODUCT OR THE PROGENY; (B) OF THE PERFORMANCE OF THE PRODUCT, OR THE CHARACTERISTICS OR PERFORMANCE OF THE PROGENY; (C) OF THE ABSENCE OF PATHOGENS FROM THE PRODUCT; AND (D). THAT PRODUCT DESCRIPTIONS, MARKETING MATERIALS, WEBSITE CONTENT, OR OTHER INFORMATION RELATED TO THE PRODUCTS IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. YOUR EXCLUSIVE REMEDY FOR ABS’ BREACH OF ITS WARRANTIES UNDER THESE TERMS IS, AT ABS’ DISCRETION, REPLACEMENT, REPERFORMANCE, OR AN ACCOUNT
CREDIT FOR THE DEFECTIVE PORTION OF THE PRODUCT. The warranty described herein is contingent upon your proper use of the Products in compliance with any product manuals or instructions, industry standards, these Terms, and any reasonable instructions from ABS in respect to the return or destruction of defective Products. These warranties do not cover any Products which have been modified in any manner or subject to abuse, neglect, misuse or alteration.
9. LIABILITY DISCLAIMER: ABS, ITS AFFILIATES, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AND DISTRIBUTORS (“ABS PARTIES”) ENTIRE LIABILITY ON ANY CLAIM ARISING FROM OR RELATED TO THE PRODUCTS OR PROGENY (WHETHER FROM BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR FIDUCIARY DUTY) SHALL NOT EXCEED THE PURCHASE PRICE PAID TO ABS FOR THE PRODUCTS THAT ALLEGEDLY CAUSED THE LOSS, OR IF ABS SO ELECTS, REPLACEMENT OF THE PRODUCT. IN NO EVENT SHALL ANY ABS PARTY BE LIABLE FOR INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, MULTIPLIED DAMAGES OR LOST PROFITS SUSTAINED BY YOU OR ANY OTHER PERSON, OR FOR ANY FAILURE OF COWS TO CALVE. YOU AGREE NOT TO ASSERT ANY NON-CONTRACTUAL CLAIM UNDER STATE LAW ARISING FROM OR RELATED TO YOUR PURCHASE OR USE OF ANY PRODUCT. YOU ASSUME ALL RISK AND LIABILITY ARISING FROM OR RELATED TO YOUR USE, HANDLING, OR STORAGE OF PRODUCTS OR RELATED TO DEFECTS IN ANY STORAGE CONTAINERS OR TANKS CONTAINING PRODUCTS.
10. 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 on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, 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.
10. DISTRIBUTORS. ABS contracts with independent contractors, sales agents, authorized representatives, or other distributors (“Distributors”) from whom you may purchase Products directly. Distributors are not the agents, employees, or servants of ABS and are not authorized to contract for, or on behalf of, ABS. 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.
11. INDEMNITY. You agree to defend, indemnify and hold all ABS Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with (a) your use of ABS Products; (b) your breach or alleged breach of these Terms; (c) your violation of any third-party right, including any intellectual property, confidentiality, property, or privacy right; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including all regulatory, administrative and legislative authorities; and (e) any misrepresentation made by you.
12. INTELLECTUAL PROPERTY. ABS Products are covered by ABS’ Intellectual Property Rights, including patents, which can be found at https://www-dev.absglobal.com/patents/. Subject to your compliance with these Terms, ABS grants you a non-exclusive, non- sublicensable, limited, revocable license to such Intellectual Property Rights to use its Products as set forth in these Terms, transferable only as specifically permitted in these Term, and specifically for (a) Germplasm and Genetic Materials, as strictly as permitted under the “Use” section and (b) GS Results, as set forth in the Genetic Services section. Trademarks, logos and service marks on ABS materials, Products, websites, or elsewhere by ABS are registered and unregistered trademarks of ABS (“ABS Marks”). No license or right to use any ABS Mark is granted by these Terms. All other uses of ABS intellectual property (including the ABS Marks) is strictly prohibited without the prior written consent of ABS. “Intellectual Property Rights” as set forth in these Terms means patent applications, patents, copyrights, trademarks, mask works, trade secrets, know- how, and any information embodying proprietary data such as technical data and computer software.
13. 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 the 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.
14. DATA. As part of ABS’ effort to continually improve its Product offerings, ABS employees or Distributors may collect data or information, including herd and animal performance data, from your technology systems or records (“Data”). By permitting ABS employees or Distributors to access your Data or systems, you grant ABS a non- exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide license to access and use the Data for ABS business purposes (“Data License”). You agree that ABS may access, under the Data License, any Data that relates to the Products or Progeny that you provide to buyers of your milk, meat, or animals or to other channel partners directly from such parties. ABS understands that maintaining anonymity of your Data is important to your business operations, and will not use your Data in a way that discloses your individual or business identity to the public. Any data, reports, information or intellectual property created, generated or discovered by ABS from the Data (individually or in aggregate), or any data on the Products or Progeny collected directly by ABS is the sole property of ABS, and no rights in such data, reports, information or intellectual property shall transfer to you or any third-party.
15. TERMINATION. Either you or ABS may terminate the Agreement as follows: (a) either Party may terminate if the other Party (i) is in material breach any provision of the Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within 30 days after the breaching Party’s receipt of written notice of such breach or (ii) becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business; and (b) ABS may terminate for convenience with 30 days’ notice to you if it discontinues GENEADVANCE in your region or for any other reason.
The expiration or termination of the Agreement, for any reason, does not release either you or ABS from any obligation that: (i) has accrued as of the date of expiration or termination; (ii)comes into effect due to expiration or termination of the Agreement; or (iii) otherwise survives the expiration or termination of this Agreement implicitly or explicitly. After expiration or termination, you may buy Products through ABS’s traditional channels under ABS’ standard terms and conditions (https://www-dev.absglobal.com/terms-conditions/).
CONFIDENTIALITY. You acknowledge that the terms of this Agreement and any non-public information or data procured, provided, or generated by or on behalf of ABS under this Agreement, including for clarity genotypes, Test Results, indices (including the Custom Index), herd analysis, and recommendations is the confidential and proprietary information of ABS (“ABS Information”) and you agree to protect and safeguard the confidentiality of the ABS Information, not use the ABS Information, or permit it to be accessed or used, for any purpose other than in the GENEADVANCE Program or as permitted under this Agreement, and not to disclose any ABS Information to any person, except to your representatives on a need to know basis and who are subject to confidentiality obligations substantially similar to those contained in this section. You shall be responsible for any breach of this section caused by any of your representatives. Upon ABS’ request you shall return or destroy all of the ABS Information in your possession or control.
16. 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 or policy in connection with your purchase or use of the Products and in your dealings with ABS.
17. AUDIT RIGHTS. During the Term and for a period of two years thereafter (“Audit Period”), you shall maintain accurate and complete herd and animal sale/contract records. On 48 hours’ notice, during the Audit Period ABS may, at its own expense and during your normal business hours audit your books, records, and other documents as necessary to verify your compliance with this Agreement. Without prejudice to any rights or remedies ABS has under law, if during an audit, ABS finds that: (a) the number of animals subject to the Program Fees was under-reported to ABS for any reason by 5% or more for the audited period, ABS may charge you the Animal Fee plus $2 for each animal that was under-reported or (b) if you are signed up for the InFocus Incentive Program, the average selling price of InFocus Calves was under-reported to ABS for any reason by 5% or more for the audited period, ABS may charge you 1.5 times the difference between the actual average selling price and the under-reported average selling price.
18. RELATIONSHIP. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
19. GOVERNING LAW. This Agreement is governed by and construed in accordance with the laws of the State of Wisconsin, USA without giving effect to any principles of conflicts of law. You irrevocably submit to the exclusive jurisdiction of the courts of Wisconsin, USA over any claim or matter arising out of or related to this Agreement or your purchase or use of Products.
20. ENTIRE AGREEMENT. This Agreement together with any other documents incorporated herein by reference constitutes the sole and entire agreement of the Parties with respect to the GENEADVANCE Program, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to GENEADVANCE. These Terms may only be amended, modified or supplemented in writing signed by each Party.
21. WAIVER & SEVERABILITY. ABS’s failure to enforce any provision of this Agreement, in whole or in part, is not a waiver of its right to do so later. If any provision of this Agreement 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.
22. ASSIGNMENT. You agree not to assign or transfer any of your rights or obligations under this Agreement without the prior written consent of ABS. Nothing in this Agreement shall restrict ABS from assigning this agreement to any other party. This Agreement is binding upon and inures to the benefit of the Parties and each of their permitted successors and assigns.
23. MODIFICATION. ABS may revise the GENEADVANCE Terms from time to time and will post the most current version on its website at https://www-dev.absglobal.com/GENEadvance-terms/. You are bound by any revision and should review these GENEADVANCE Terms periodically. ABS may change the Key Account Manager and you may change the Customer Contact with written notice. You acknowledge that the ABS Rep may change at any time.
i NM$ and CM$ index is published by the United States Council of Dairy Cattle Breeding; TPI index published by Holstein Association USA; JPI index published by the American Jersey Cattle Association. All indices are inclusive of their genomic equivalents.
ii (G) Status as defined by NAAB as “genotyped and has semen available for sale and has less than 10 milking daughters”. Used in these Terms, (G)Status only applied to the index scope used to determine rank, and an ABS sire is not required to be in (G)Status to be classified as “ICON”.
iii [PLI (UK), RZG (Germany), LPI (Canada), PFT (Italy), BPI (Australian), ISU (France), NTM (Scandinavia)