MUNSTER AI GROUP LIMITED T/A MUNSTER BOVINE TERMS AND CONDITIONS
MUNSTER AI GROUP LIMITED T/A MUNSTER BOVINE TERMS AND CONDITIONS OF SALE (‘Terms and Conditions’)
Munster AI Group Limited t/a Munster Bovine (‘MB’) carries on the business of providing artificial insemination (“AI”) services, liquid nitrogen delivery, storage of semen and related services, milk recording services, herd health services and application software tools (together the “Services”) and the sale of semen for insemination by the customer (“DIY Semen”), semen having X or Y bearing sperm to produce progenies of a desired sex either female or male (“Sexed Semen”), frozen semen, fresh semen and related products and equipment (together the “Goods”) to farmers and other parties requiring these Goods and Services (‘Customers’)
1. Basis of contract
1.1 These Terms and Conditions apply to each and every contract for the sale and purchase of Goods and/or Services between MB and the purchaser of such Goods and Services (the “Customer”) 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. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Terms and Conditions.
1.2 The Customer’s verbal or written order for the Goods and/or Services or written acceptance of MB’s quotation, (the “Order”) constitutes an offer by the Customer to purchase the Goods and/or Services set out in the Order (together the “Deliverables”) in accordance with these Terms and
Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when MB issues a written acceptance of the Order or, if no written acceptance is issued, dispatches the Goods or commences providing the Services (as applicable), at which point a contract between MB and the Customer for the sale and purchase of the Deliverables (the “Contract”) shall come into existence.
2. Delivery of Goods
2.1 Save as set out to Clause 2.2, delivery shall be as set out in MB’s acceptance of the Order (or, if the acceptance does not specify delivery as set out in the Order):
(a) Delivery at Place: If delivery is at place, MB shall, subject to Clause 5, deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after MB notifies the Customer that the Goods are ready and Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
(b) Delivery Ex Works: If delivery is ex works, the Customer shall collect the Goods from MB’s premises agreed by the parties at the point of sale within 7 days of MB notifying the Customer that the Goods are ready and delivery is completed on the commencement of the loading of the Goods.
2.2 Liquid Nitrogen Delivery:
(a) In the event that the Customer has ordered an annual liquid nitrogen delivery service, MB shall, subject to Clause 5 (Customer Obligations) , deliver liquid nitrogen to the Customer’s location 4 times a year, with no more than 16 weeks elapsing between any two deliveries.
(b) MB will arrange for liquid nitrogen to be poured into the Customer’s flask.
2.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
2.4 The risk in the Goods shall pass to the Customer on completion of delivery however title shall remain with MB until the entire amount of the price (for the Goods and/or Services) is paid in full..
2.5 Inspection of Goods immediately on delivery receipt is advised and the Customer’s attention is drawn to the notice period for defects or non-delivery of Goods in Clause 4.2;
2.6 If MB is unable to deliver the Goods as ordered, it will source alternative Goods of similar description and quality and shall offer to deliver such to the Customer. If the Customer does not take up the offer of replacement goods, the contract shall automatically terminate and the Customer shall not be invoiced. The Customer shall not be entitled to any compensation in the event that the replacement Goods are supplied, or the Customer does not accept an offer to supply replacement Goods.
2B: Provision Of Services
1. MB shall use all reasonable endeavours to meet any specified performance dates and times for the Services, but any such dates and times shall be estimates only and time shall not be of the essence for the performance of the Services
2. MB shall have the right to make any changes to the Services which are necessary to comply with any applicable laws or safety requirements, or which do not materially affect the nature of the Service.
3. The Customer shall co-operate with MB in all matters relating to the Services and will where necessary, provide MB, its servants, agents, consultants or sub-contractors access to the Customer’s equipment, premises or other facilities as reasonably required by MB to provide the Services and provide MB with such information and materials as MB may reasonably require to supply the Services, and ensure that such information is accurate in all material respects.
4. The Customer shall ensure that its premises (and equipment where applicable) are appropriately prepared, (and maintained where applicable) and suitable for the provision of the Services.
5. The Customer shall, where necessary, obtain and maintain all licenses, permissions and consents which may be required for the Services before the date on which the Services are to commence.
6. The Customer acknowledges that while advice and support given by MB personnel and representatives is given in good faith to support the Customer, the ultimate decision is a matter solely for the Customer.
3. Warranties
3.1 MB warrants to the Customer that it shall use reasonable efforts to:
(a) subject to Clause 5 (Customer Obligations), procure that its employees and contractors (“MB Personnel”) supply the Services in accordance with Good Industry Practice (as defined in Clause 3.2);
(b) ensure that, subject to Clauses 3.3, 3.4, 3.5, 5 and 6, any Goods supplied shall be free from material defects; and
(c) meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.2 Good Industry Practice means the standard of skill, diligence, prudence and foresight that would reasonably and ordinarily be expected from a skilled and experienced person engaged in the business of artificial insemination for the purposes of cattle breeding under the same or similar circumstances and in compliance with all applicable laws and regulations.
3.3 The Customer acknowledges and agrees that:
(a) semen is fragile and can be easily damaged or destroyed and is the product of a natural biological process, over which MB has no direct control, and that MB does not warrant or represent to the Customer that any MB Semen that it supplies or distributes
(i) will result in a viable pregnancy;
(ii) will produce a calf that exhibits all or any of the characteristics described in any genetic evaluation; or
(iii) is free from defects, including genetic defects.
(b) Sexed Semen and semen from the Young Bull/Gene Ireland program has particular characteristics and the provisions of Clauses 6 and 7 below shall apply to same.
(c) while MB records data relating to the Services and Goods supplies to the Customer, it is for the Customer to interpret such data and to make decisions as to the best use of resources for its own business. MB shall not have liability for any loss suffered by the Customer as a result of the Customer’s use of data provided by MB or any loss of data by MB.
(d) MB’s provision of the Services and Goods can be impacted by factors including seasonal demand, weather, accidents, safety on site, suitability of facilities and/or Customers equipment and MB does not guarantee its availability to provide the Services or Supply the Goods and may suspend same from time to time.
3.4 MB has no control over the quality or nature of semen provided to it by third parties (“Third-Party Semen”) and shall have no liability regarding any outcomes resulting from the use of Third-Party Semen where MB was not aware and could not reasonably have been aware of any defect.
3.5 MB has no control over the quality or nature of semen provided to it by ICBF under the Gene Ireland program and the terms and conditions entered into by the Customer and ICBF shall apply.
3.6 MB assumes no responsibility whatsoever with respect to sale or other disposition by the Customer of MB straws, semen or other goods resulting from the services provided by MB or use by any transferee of same.
3.7 MB will endeavour to assist the Customer in obtaining from its supplier of any Goods or Services supplied to it from time to time such warranty as the supplier has given or may be prepared to give to MB in respect of such Goods or Services and such assistance is given and is accepted by the
Customer in lieu of and expressly excludes any other condition, warranty or guarantee as to the quality or fitness for any purpose or any representation or warranty as to performance or other attributes of such Goods or Services supplied by a third party to MB. MB shall not be liable to the Customer for the observance of the terms of such warranty.
3.8 The foregoing warranties do not extend to any Goods which have been accidentally damaged, or which have been repaired, altered, neglected or used in any way by the Customer so as to affect adversely their utility or reliability or quality or uses under normal conditions.
3.9 Except as set out in these Conditions of Trading, all representations, warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract for the sale of Goods and/or the supply of Services. For the avoidance of doubt where the Customer is acting as a consumer no provision in these Conditions of Trade shall affect or prejudice the Customer’s statutory rights.
4. Limitation Of Liability For All Goods And Services
4.1 Nothing in these Conditions shall exclude or limit MB’s liability:
(a) under the tort of deceit;
(b) for death or injury to any person caused by its negligence;
(c) any breach of an obligation implied by Section 12 of the Sale of Goods Act, 1893 (if any); or
(d) any other liability to the extent that, under applicable law, it cannot be excluded or limited;
and all of the provisions of this Clause 4 are subject to the provisions of this Clause 4.1
4.2 MB shall not be liable to the Customer or be deemed to be in breach of the warranty in Clause 3.1 unless:
(a) the Customer gives written notice of any defect, performance issue, problem or other issue (the “Defect”) in relation to the Goods and/or the Services as supplied to MB as soon as is reasonably possible but in any event within 40 Business Days (being a day other than a Saturday, Sunday or public holiday on which banks are open for business in Ireland) of the time when the Customer discovers or ought to have discovered the defect; and
(b) where practically possible, MB is given a reasonable opportunity after receiving notice of examining the Goods (or goods from the same batch) and the Customer (if requested by MB) returns the Goods to MB’s place of business at MB’s cost for examination to take place there.
4.3 MB shall not be liable for a breach of the warranty in Clause 3.1 if:
(a) the Customer or any third party makes any further use of the Goods in question after the Customer gives such notice;
(b) the Defect arises as a result of failure by the Customer or a third party to follow MB’s oral or written instructions relating to the storage, transportation, use or maintenance of the Goods or (if MB gives no such instructions) Good Industry Practice;
(c) N/A
(d) the Defect arises as a result of any fair wear and tear, or any abnormal or unsuitable transportation, storage or working conditions or use for which the Customer or the end user is responsible;
(e) the Defect arises as a result of any wilful damage, negligence, or default of the Customer, end user, any AI technician (other than MB Personnel providing the Services) or any other third party; or
(f) where the Goods comprise semen supplied by MB, the Defect comprises, or is caused by, an inherent defect or abnormality in the Goods where MB was not aware and could not reasonably have been aware of such defect.
4.4 MB shall not be liable for:
(a) any shortages in quantity of Goods delivered unless the Customer notifies MB of a claim in writing within 5 Business Days of receipt of the Goods by the Customer;
(b) destruction of, damage to or loss of the Goods, whether stored or in transit by or on behalf of MB, unless such destruction, damage or loss is caused by MB’s negligence or fault and the Customer notifies MB in writing of a claim within 5 business days of the time when the Customer discovers or ought to have discovered the defect; or
(c) any loss, destruction or damage to Goods (or any part of them) which are not in MB’s custody or control which was caused by any person other than MB; or
(d) loss or damage to goods caused by semen straws rupturing or escaping from the storage container and/or the failure of a vacuum device during storage or transportation;
(e) any failure by MB to supply the Goods or Services in accordance with Clauses 2 and 3 to the extent that such failure is as a result of the Customers failure to meet its obligations under Clause 5.1.
4.5 MB shall be entitled to suspend delivery of the Goods or supply of the Services without incurring liability to the Customer if, and for so long as, the Customer fails to provide (or fails to ensure that the end user provides) MB with facilities, co-operation and assistance.
4.6 If any Goods have not been used by the Customer and it is proven or accepted that such Goods do not conform with the warranty in Clause 3.1, MB may in its sole discretion replace the relevant Goods (or the defective part) or refund the price of those Goods at the pro rata price provided that, if MB so requests, the Customer shall, at MB’s reasonable expense, return the Goods or the part of the Goods which is defective to MB. If MB complies with this Clause 4.6, it shall have no further liability for breach of the warranty in Clause 3.1 in respect of these Goods, save as expressly provided otherwise in these Terms and Conditions.
4.7 NOT IN USE
4.8 MB’s liability in respect of any losses arising due to a breach of Clause 3.1 and attributable to the negligence of MB, which results in the birth of a calf with a breed or parentage other than as recorded by the MB Personnel (or, in the case of insemination of DIY Semen by a person other than the MB
Personnel, as per the writing on the relevant semen straw), shall be limited to the lower of:
(a) the difference in value between the calf as born and the value, on the date of birth of such calf, of a calf of the same sex of the calf as born having the correct breed and parentage; or
(b) €1,000 (where the expected outcome is a potential pedigree registered beef: calf from a pedigree registered beef dam); or
(c) €500 (where the expected outcome is a potential pedigree registered dairy calf from a pedigree registered dairy dam); or
(d) €100 (where the expected outcome is a potential non-pedigree registered calf).
4.9 MB’s liability in respect of any losses arising from an incident resulting in the death or injury to a cow resulting from MB’s negligence shall be limited to:
(a) in the event of an injury to the cow, any veterinary expenses reasonably incurred in relation to that cow up to a maximum of €500; or
(b) in the event of the death of a cow, the lower of:
(i) €2,000; or
(ii) the difference in the value of the cow immediately before death and its value immediately thereafter.
4.10 MBs liability in respect of any losses arising from A.I. services provided by MB (through its A.I. technicians) in circumstances where the conception rate from Valid Serves is significantly lower than expected for the herd during the period of AI services by MB and where such performance is proven to be directly attributable to the negligence of MB, MB shall quantify the number of unachieved conceptions by calculating the difference between the number of conceptions achieved from valid inseminations involved in the given time period versus what may have been achieved on average in the previous two years for that herd.
The maximum value of an unachieved conception is based on published research by Teagasc entitled “The Cost of a Missed Heat” (Published 29 March 2021 https://www.teagasc.ie/news--events/daily/dairy/the-cost-of-a- missed-heat) using current figures for production costs and output values.
For the purposes of this clause a Valid Serve is a serve where the cow is in heat and therefore has an opportunity to become pregnant.
The parties agree that such a basis for calculation is fair and reasonable and amounts to a genuine pre estimate of the Customers direct losses.
4.11 Subject to Clause 6 (Sexed Semen) and Clause 7 (Young Bulls or Test Bulls), MBs liability in respect of any losses arising from performance of the Goods supplied by MB (in particular semen) in circumstances where the conception rate from Valid Serves is significantly lower than expected for the herd and where such performance is proven to be directly attributable to the quality of the Goods, MB shall quantify the number of unachieved conceptions by calculating the difference between the number of conceptions achieved from valid inseminations involved in the given time period versus what may have been achieved on average in the previous two years for that herd. The maximum value of an unachieved conception is based on published research by Teagasc entitled “The Cost of a Missed Heat” (Published 29 March 2021 https://www.teagasc.ie/news--events/daily/dairy/the-cost-of-a-missed-heat) using current figures for production costs and output values
For the purposes of this clause a Valid Serve is a serve where the cow is actually in heat and therefore has an opportunity to become pregnant.
The parties agree that such a basis for calculation is fair and reasonable and amounts to a genuine pre-estimate of the Customers direct losses.
4.12 MB’s liability in respect of any loss or damage arising in respect of the provision of Goods and/ or Services that falls outside of the scope of the specific categories of loss or damage set out above shall be limited to the contract price of the Goods or Services in question.
4.13 Additionally, specifically in relation to the provisions of services by MB, MB shall have no liability whatsoever:
(a) for death or injury of a cow for which Services are being provided that occur as a result of that cow being in a crush or in a holding pen while the Services are being provided; and
(b) if, at the request of the Customer and/or the end user, one of MB’s employees, agents or sub-contractors assists in restraining a cow, for any accidents or injuries to animals or people while providing such assistance. Neither MB nor its employees, agents or sub-contractors shall be obliged to provide such assistance to the Customer.
4.14 MB shall not be liable in contract, tort or otherwise howsoever for to the Customer for indirect or consequential loss, damage, costs, expenses, loss of profit (except any direct loss of profit included in the calculations under Clauses 4.10 & 4.11 above) ,loss of contracts, loss of the use of money, goodwill, business opportunity, reputation or other claims for compensation howsoever arising (whether caused by the negligence of the Company, its servants or agents or otherwise).
4.15 MB does not accept, and excludes, all liability for breach of any obligation or duty to take reasonable care or exercise reasonable skill other than any such obligation or duty explicitly arising under these Terms and Conditions.
4.16 Nothing in these Terms and Conditions shall or shall be deemed to relieve the Customer of any common law duty to mitigate any loss or damage incurred by it.
5. Customer Obligations
5.1 The Customer shall
(a) ensure that it shall make suitable facilities available to any MB Personnel that attend at its property to deliver Goods or perform the Services (including but not limited to facilities for animal restraint, disinfection and adequate lighting) and to ensure the safety of MB Personnel while on the Customer’s property;
(b) ensure that where liquid nitrogen delivery has been ordered that the Customer’s flask for storage of liquid nitrogen is available and accessible to MB’s delivery person when the product is delivered;
(c) ensure that the Customer’s flask in which semen delivered by MB is stored is safe, in good condition, free from defects and is and will continue to be fit for the purpose of the proper cryogenic storage of the semen delivered by MB;
(d) comply with directions of MB for the storage of semen and the carrying out of the Services;
(e) ensure that all relevant documentation and instruction required to provide the Services is provided to the MB Personnel upon their arrival at the Customer’s location;
(f) ensure that all animals submitted for Services:
(i) are generally healthy and in good condition;
(ii) are in heat and are presented for Services at the correct time;
(iii) if subjected to a hormonal synchronisation program, have received the correct treatments at the correct times and are submitted for Services at the correct time; and
(iv) if Sexed Semen is being used, are submitted for Services at the correct time.
(g) cooperate with all reasonable requests of MB Personnel and provide assistance to them to allow them to perform the Services and to investigate any claims or issues that arise;
(h) provide fertility, production, herd health and veterinary information to MB on request;
(i) carry public liability insurance in the amount of €6,500,000 and produce evidence of same to MB on demand; and
(j) promptly enter data relating to their use of DIY Semen into the Irish Cattle Breeding Federation register.
5.2 The Customer acknowledges its obligations to advise MB in advance, of any known factors that might impact MBs ability to conduct the Services (including but not limited to on-farm herd health, farm management issues, defective equipment) and MB takes no responsibility for any Services provided where such information is not provided to MB in advance.
5.3 The Customer further acknowledges its obligations to exercise the standard of skill, diligence, prudence and foresight that would reasonably and ordinarily be expected from a Customer engaged in the business of farming and the procurement of the Goods & Services, for the purposes of cattle breeding including the duty to mitigate losses by taking all reasonable and prudent steps.
6. Sexed Semen
6.1 In the case of Sexed Semen the product is modified by a third party and MB does not warrant or represent that any sorting/sex skew/processing levels referred to in its marketing literature will result in a corresponding sex ratio in calves produced from the sexed semen.
6.2 MB makes no warranty as to the efficacy or use/performance of any sexed straw or skewed semen, success rate with respect to in vitro or AI fertilisation or with respect to sex at birth.
7. Young Bulls Or Test Bulls
7.1 Young bulls or test bulls (together “G1 Bulls”) are defined as bulls which are in their first season of production and for which there is no field fertility data available at time of semen despatch by MB.
7.2 The Customer acknowledges and accepts that:
(a) That G1 Bulls are young males with no field fertility, calving performance and/ or genetic defect data and therefore no representation, guarantee or warranty whatsoever is made or given by MB as to the performance of the bulls;
(b) the genetic indexes of the G1 Bulls are provided on an “as is” basis, are subject to change and no representation, warrantyor guarantee whatsoever is made or given by MB as to their accuracy.
8. Customer Indemnity
8.1 The Customer shall indemnify MB against any loss, damages, costs or expenses resulting from:
(a) any injury suffered by any MB Personnel as a result of unsafe conditions at the Customers property or the Customer taking any action (or refraining to take any action) without due care and attention; or
(b) any failure by the Customer to comply with clause 5.1.
8.2 The Customer agrees that MB shall not, under any circumstances, be liable for any losses, costs, penalties, claims or liabilities (“Claims”) that may arise or that the Customer may suffer in connection with the supply of services under Clauses 6 and 7 and, in consideration of MB providing the services, agrees to indemnify and keep indemnified MB, its officers, employees, sub-contractors and agents, from and against any Claims that may arise in connection with such matters.
9. Price And Payment
9.1 The price of the Deliverables shall be the price set out in the Order, or, if no price is quoted, the price set out in MB’s published price list in force as at the date of delivery.
9.2 The Supplier may, by giving notice to the Customer at any time up to 14 days before delivery, increase the price of the Deliverables to reflect any increase in the cost of the Deliverables that is due to:
(a) any factor beyond MB’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Deliverables ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give MB adequate or accurate information or instructions.
9.3 The price of the Deliverables includes value added tax (VAT).
9.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. The Supplier may invoice the Customer for the Services on completion of the Services or in such manner as is set out in the Specification, if applicable.
9.5 Subject to Clause 9.6, the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by MB. Payment shall be made in Euro or such other currency as is stated on the invoice. Time of payment is of the essence.
9.6 Where Goods or Services are sold to the Customer on a credit account, the Customer shall at the end of the month following the month of the sale of the Goods or the Provision of the Services, pay the sum due. In the event that the Customer should fail to pay all or any part of the sum due as aforesaid, then a finance charge (the ‘Finance Charge’) calculated at the rate of up to 0.5% per month (or 4% per annum above the base lending rate of Bank of Ireland Plc from time to time, whichever is the greater) will be applied on the unpaid amount and irrespective of whether the said amount consists of the price of Goods or Services charged or the Finance Charge applied on previous overdue balances, if any. Unless otherwise directed by the Customer in writing all payments made by the Customer in respect of any such amounts due shall be appropriated firstly in reduction of any sum due by way of a Finance Charge and thereafter in reduction of any amount due in respect of the price of Goods sold or Services provided and charged to the said credit account. Without prejudice to the foregoing the rate of the Finance Charge herein may be varied by the company from time to time and notified to the Customer.
9.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by MB to the Customer.
10. Termination
10.1 Without limiting its other rights or remedies, MB may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the Customer’s financial position deteriorates to such an extent that in MB’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(e) it is not possible for MB to obtain the Goods comprising the Order in sufficient quantities and at a price which allows MB to fulfil the Order without incurring a loss.
10.2 Without limiting its other rights or remedies, MB may suspend provision of the Deliverables under the Contract or any other contract between the Customer and MB if the Customer becomes subject to any of the events
listed in Clause 11.1(a) to Clause 11.1(d), or MB reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, MB may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to MB all of MB’s outstanding unpaid invoices and interest.
10.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11. Dispute Resolution
11.1 Stage One (Internal): MB will endeavour to solve any disputes in the first instance directly with the Customer and subject to these terms and conditions
The parties will in the first instance meet in good faith with a view to resolving the dispute as soon as possible but in any event within a period of three (3) months from the date the dispute is raised with MB in writing.
Both parties may be accompanied by a third party such as an agricultural advisor subject to advising the other party in advance.
11.2 Stage Two (Informal): The parties agree that in the event that a dispute is not resolved within a period of three months of commencement of Stage One above, or within such longer period as the dispute may require, such dispute shall be escalated to the next stage. If the dispute cannot be resolved by either party referring the matter to the internal dispute resolution procedure set out above, then, it may be referred by the parties for resolution or determination as follows. It may be referred by either party for determination to an expert of repute who shall have experience of the matter(s) to which the dispute relates (the “Expert”) (without prejudice to seizure of the court of competent jurisdiction), who shall be appointed and carry out his functions as independent expert in accordance with the provisions set out below. Any such determination by an Expert shall not, unless otherwise agreed in writing by the parties in advance of the referral, be binding on the parties.
11.3 Notwithstanding the other provisions of this dispute resolution procedure, either party may commence formal legal proceedings without first observing or exhausting the procedures detailed in this dispute resolution procedure;
12. Data Protection And Privacy Statement
12.1 Without prejudice to, the terms of MB Privacy Statement (set out in its website at https://www.munsterbovine.ie/privacy-statement/ the Customer acknowledges and agrees that certain of his/her Personal Data which is provided when obtaining the Services from MB will be used by MB in conjunction with the provision of the Services. When applying for the services the Customer therefore:
(a) confirms that he/she understands that such personal data, as is defined in the GDPR and the Data Protection Act 2018, will be collected and retained by
MB for the time specified in the Privacy Statement:
(b) acknowledges that, pursuant to these Terms and Conditions, his/her Personal Data may be used by MB when data is being compiled or assessed and also for the purpose ofcommunicating with him/her.
12.2 MB processes personal data in accordance with data protection legislation and as detailed in the MBs Privacy Policy on https://www.munsterbovine. ie/privacy-statement/. The Customer agrees to keep MB updated of any changes to its personal data. MB may use data relating to the Customer which is collected under these Conditions of Trading or otherwise for its own legitimate interests or that of a third party, for the purposes of performing
its obligations under a contract and for administration, risk assessment, marketing and credit checking purposes. MB may disclose Customer data to its agents, dealers and service providers for these purposes and in accordance with the MB Privacy Policy. MB may also share Customer data with companies within the Company’s group.
12.3 The Customer has the right, subject to certain exemptions, to obtain a copy of any personal data held by the Company and to correct any inaccuracies in such personal data.
13. Force Majeure
13.1 For the purposes of these Terms and Conditions, Force Majeure Event means an event beyond the reasonable control of a party including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of that party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for two months, the party not affected may terminate this Contract by giving 30 days’ written notice to the affected party.
14. Confidentiality
14.1 “Confidential Information” means all information pertaining to any aspect of a Party’s business which either is (i) not known by actual or potential competitors of the Party or (ii) proprietary information of the Party or its customers or suppliers or (iii) proprietary information of third parties in respect of which the Party, its employees or consultants have obligations of confidentiality, whether of a technical nature or otherwise.
14.2 During the course of this agreement, the Parties may disclose Confidential
Information to each other.
14.3 Each Party shall keep the Confidential Information of the other Party strictly confidential and shall, subject to Clauses 14.4 not disclose Confidential Information to any third party provided that MB may disclose Confidential Information to any party to whom it has sub-contracted its obligations hereunder to the extend necessary to allow the sub-contractor perform such obligations.
14.4 The obligations in Clause 14.2 shall not apply to Confidential Information which (i) is within the public domain, (ii) is required to be disclosed by law or
(iii) is lawfully received from a third party free to disclose such information and which the receiving Party can demonstrate and verify in writing was so lawfully received.
15. NCBC Intellectual Property Rights
15.1 The Customer agrees to be bound by the Terms of Use set out in Schedule 1 which forms part of these Terms and conditions of Sale.
16. General
16.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. Without prejudice to the generality of the foregoing, the Supplier may subcontract the sale of semen to Munster AI Farm Services Limited, in which case Munster AI Farm Services Limited shall sell the semen on these terms and shall invoice the Customer directly.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of MB.
16.2 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
16.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy nor prevent or restrict the further exercise of that or any other right or remedy.
16.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.6 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party
in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid post or other next working day delivery service, commercial courier, or fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.6(a); if sent by pre-paid post or other next working day delivery service, at 9.00 am on the second day (other than a Saturday, Sunday or public holiday) after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, the next day (other than a Saturday, Sunday or public holiday) after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.7 Governing law and Jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Ireland and each party submits to the exclusive jurisdiction of the Irish Courts.
Schedule 1: NCBC Terms of Use if selling to another AI Company Definitions:
· NCBC: NCBC is a joint venture between Munster Bovine (MB) and Progressive Genetics (PG) focussed on identifying the best quality and highest genetic merit semen which are then supplied to the market (including to MB) subject to certain stipulated terms and conditions designed to ensure the continued supply of the best quality and highest genetic merit semen into the future.
· Cattle Semen Rights: Cattle semen rights’ are the rights to a bull’s semen for its use in artificial insemination (AI). This includes the right to collect, store, sell, and/or use the semen for breeding purposes. There are laws and regulations governing the collection, storage, and sale of bovine semen in Ireland and elsewhere.
· AI Company: Any Domestic or International entity involved in the collection, storage, sale, use and/or distribution of semen. If there is any doubt as
to whether any given company is an ‘AI Company’ or not, a party to this contract should consult MB who will be entitled, in turn, to liaise and consult with NCBC on such matters.
· NCBC IP Identified AI Sire: Any NCBC AI Sire identified as being ‘NCBC IP identified’. ‘NCBC IP Identified’ indicates that these sires contain Intellectual Property rights belonging to NCBC. This will be identified at point of sale between NCBC and any third party in the market (including MB) with a stipulation that the receiving party must, in turn, disclose that to any future purchaser.
· Offspring: Two generations (Sons, Paternal and Maternal Grandsons, daughters and Paternal and Maternal Granddaughter) of the NCBC ‘IP Identified’ AI Sire.
1. Animals
“NCBC” has “Cattle Semen Rights” on all “offspring” of an “NCBC IP Identified AI Sire”. Therefore, the herdowner must get consent from “NCBC” if he or she intends to sell that “Offspring” to another “AI Company”. The purchasing party can liaise with MB for the purpose of MB then seeking and obtaining that consent from NCBC where the purchasing party is only dealing with MB and not NCBC. This is a contractual stipulation that NCBC put in place when MB purchased the semen from NCBC (as is the case for all such purchasers from NCBC) which must apply in relation to the sale of any Offspring so that NCBC’s Cattle Semen Rights will be honoured.
2. IVF or ET Use
The collection of, the marketing of, the selling of and/or the supplying of oocytes or embryos from the “offspring” of an “NCBC IP Identified AI Sire” to an “AI Company”, can only be done if there is consent from “NCBC” in place. NCBC applies these terms when selling semen (whether to MB or to any other entity) and requires the purchasing party to in turn ensure that these terms are included in any onward sale (e.g. by MB), including a sale of Offspring so that NCBC’s Cattle Semen Rights will be honoured.
3. Change of Ownership
If the ownership of the semen, oocytes, embryos and/or animals changes, then consent must still be obtained by the new owner from “NCBC”, if selling to another “AI Company”. Again, the purchasing party can liaise with MB for the purpose of MB then seeking and obtaining that consent from NCBC where the purchasing party is only dealing with MB and not NCBC. As outlined above, this is again a contractual stipulation that NCBC put in place when MB purchased the semen from NCBC (as is the case for all such purchasers from NCBC), including a sale of Offspring so that NCBC’s Cattle Semen Rights will be honoured.
4. Effective Date
These ‘Terms of Use’ are effective from the 24th of February 2025.
Failure to adhere to any of the above terms will constitute breach of contract and the rights of MB and, in turn, NCBC will be fully reserved in terms of taking whatever steps and actions may prove necessary in order to protect NCBC’s Cattle Semen Rights in accordance with the terms of both this contract and, in turn, MB’s contract with NCBC. By entering into this contract, the prospective purchaser acknowledges and confirms that the purchaser will continue to abide by these terms in any future dealings, including in relation to Offspring.
