Eurogene AI Services Ireland Limited (‘Eurogene’) carries on the business of an AI product provider and related activities such as DIY, semen sales, sexed semen sales, liquid nitrogen servicing, storage of semen and sales of related products and services to farmers and other parties requiring these goods and services (‘Customers’).

1. General – These Terms and Conditions apply in preference to and supersede any terms and conditions referred to, offered or relied on by the Customer whether in negotiation or at any stage in the dealings between the parties with reference to the goods with which this contract is concerned. Without prejudice to the generality of the foregoing, Eurogene will not be bound by any standard or printed terms tendered by the Customer, unless the Customer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by Eurogene in writing.
2. Variation – Neither Eurogene nor the Customer shall be bound by any variation, addition to, or amendment of, these terms unless such is agreed in writing by the parties and signed on their behalf by a duly authorised party.
3. Description – All samples, drawings, descriptive matter, specifications, advertising or any other promotional material issued by Eurogene and any descriptions or illustrations contained in Eurogene’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or the Services described in them and do not constitute any representation or warranty as to its subject matter. They shall not form part of the Contract and this is not a sale by sample.
4. Warranties –

4.1 Eurogene warrants to the Customer that

(a) at the time of sale, it will have title to sell the Goods to the Customer; and

(b) that all goods, save for semen, supplied by Eurogene to the Customer will be of merchantable quality and free from defects; and

(c) that any service provided by Eurogene will be provided with due care and skill and in compliance with all applicable statutory regulations pertaining to that service;

4.2 The Customer acknowledges and agrees, notwithstanding clause 4.1, that due to the inherent risks and uncertainties in all biological processes, that Eurogene does not warrant, guarantee or represent to the Customer that a particular outcome will occur as a result of the sale and or supply of any goods (including semen and sexed semen) or the supply of any biological or other service. In particular, but without limitation to the foregoing, the Customer agrees and acknowledges that:

• any information published by Eurogene in respect of past performance of any bull or any of the bull’s progeny does not constitute a representation or warranty by Eurogene as to the future performance of the bull or its semen or of any of its progeny;
• Eurogene makes no representation or warranty that any semen that may be supplied to or used by the Customer due to its inherent nature is free from any defect and or free from any recessive genes which may lead to genetic abnormalities or contribute to disease, impairment or death;
• Eurogene makes no representation or warranty that any semen supplied by Eurogene will result in a viable pregnancy or delivery of any calf;
• Eurogene makes no representation or warranty that the sorting levels of any sexed semen supplied will result in the sex ratio advised in any representation made by Eurogene or in accordance with any catalogue or other marketing literature.
• in relation to young bull semen from bulls which are less than two years old at time of sale, sold or delivered by Eurogene or provided via the Irish Cattle Breeding Federation, Gene Ireland Program, Eurogene makes no representation or warranty as to the performance of such young bulls or as to the accuracy of the genetic indexes of such young bulls.

4.3 The Customer warrants, represents and undertakes to Eurogene that it:

• will strictly follow and adhere to Eurogene’s guidelines, manual and/or instructions on the storage, use and handling of all goods sold to the Customer;
• will not interfere with, alter and/or repair the goods;
• will not use any semen straw supplied for use on more than one bovine;
• shall at all times follow and adhere to all applicable statutory regulations and governmental guidelines in relation to the goods and services provided by Eurogene;
• will not sell onwards or otherwise transfer any goods supplied by Eurogene to any third party;
• will at all times ensure that any flask, container or other vessel containing straws and/or semen is in good repair, maintained, serviced and has sufficient levels of liquid nitrogen;
• will co-operate with Eurogene in respect of the supply of goods and services to that Customer and shall at all times supply appropriate facilities on their farm for the carrying out of any artificial insemination service by any employee, servant and/or agent of Eurogene, and/or any appropriate third party.
• have in place at all times appropriate farm insurance, to include public and employer liability;
• has full capacity and authority to enter into and perform all obligations under this contract and to furnish these warranties.

4.4 Eurogene is discharged from all of its obligations and warranties contained herein in the event that the Customer does not comply with and/or fulfil the warranties contained in clause 4.3.

5. Limitation of Liability for All Goods and Services – 5.1 Eurogene’s liability to the Customer (whether for breach of contract, tort [including negligence] misrepresentation, breach of warranty, statutory duty or otherwise howsoever arising) shall be limited as set out in this clause.

5.2 Eurogene shall not be liable to the Customer or be deemed to be in breach of the warranty in Clause 4.1 unless:

(a) the Customer gives written notice of the defect in the goods to Eurogene within 5 Business Days of the time when the Customer discovers or ought to have discovered the defect; and

(b) Eurogene is given a reasonable opportunity after receiving notice of examining the goods and the Customer (if requested by Eurogene) returns the goods to Eurogene’s place of business at Eurogene’s cost for examination to take place there.

5.3 Eurogene shall not be liable for:

(a) any shortages in quantity of goods delivered unless the Customer notifies Eurogene of a shortage in writing within 5 business Days of receipt of the goods by the Customer;

(b) destruction of, damage to or loss of the goods, including any semen, whether stored or in transit by or on behalf of Eurogene, unless such destruction, damage or loss is caused by Eurogene’s negligence or fault and the Customer notifies Eurogene in writing of a claim within 5 business days of receipt of the goods or the scheduled date of delivery, whichever is the earlier;

(c) any loss, destruction or damage to goods (or any part of them) while they are in Eurogene’s custody during storage or use which is caused by any person other than Eurogene.

5.4 If a firm delivery date is specifically provided for, any liability of Eurogene for failure to deliver the goods and/or services by such time for reasons other than matters beyond its reasonable control shall be limited to a reduction in price upon the Customer giving Eurogene notice in writing of such claim for a reduction within a reasonable time, unless it can be reasonably concluded from the circumstances that no loss has been suffered. Such reduction shall in no circumstances exceed 5% of the price.

5.5 Any liability of Eurogene for non-delivery of the goods and/or services shall be limited to replacing the goods and/or services (in the cheapest available market) within a reasonable time or issuing a credit note at the pro rata price against any invoice raised for the goods and/or the services.

5.6 Eurogene 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) Eurogene with facilities, co-operation and assistance.

5.7 If any goods do not conform with the warranty in Clause 4.1, Eurogene shall at its option repair or replace the relevant goods (or the defective part) or refund the price of those goods at the pro rata price provided that, if Eurogene so requests, the Customer shall, at Eurogene’s reasonable expense, return the goods or the part of the goods which is defective to Eurogene. If Eurogene complies with this Clause 5.7, it shall have no further liability for breach of the warranty in Clause 4.1 in respect of these goods, save as expressly provided otherwise in these Terms and Conditions.

5.8 If any part of the Services is performed negligently or in breach of these Terms and Conditions then, at the request of the Customer, Eurogene shall re-perform the relevant part of the services. If Eurogene complies with this Clause 5.8 it shall have no further liability in respect of those services save as expressly provided otherwise in these Terms and Conditions.

5.9 Eurogene’s liability in respect of any losses arising due to a breach of Clause 4.1 which results in the birth of a calf with a breed or parentage other than specified by the Customer, shall be limited to the lower of:

(a) €500; or

(b) 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.

5.10 Save for Clause 6, Eurogene’s liability in respect of any losses arising from the death or injury to a cow resulting from Eurogene’s negligence shall be limited to:

(a) any veterinary expenses reasonably incurred in relation to that cow up to a maximum of €500; and

(b) the lower of:

(i) €1,500; or

(ii) the value of the cow immediately before death or injury.

5.11 Additionally, specifically in relation to the provisions of services by Eurogene or any third party, Eurogene shall have no liability whatsoever:

(a) for death or injury of a cow for which AI services are being provided that occur as a result of that cow being in a crush or untethered in a holding pen while the AI services are being provided; and

(b) if, at the request of the Customer and/or the end user, one of Eurogene’s employees, agents or sub-contractors, or a third party, assists in tethering a cow, for any accidents or injuries to animals or people while providing such assistance. Neither Eurogene nor its employees, agents or sub-contractors shall be obliged to provide such assistance to the Customer.

5.12 Subject to Clause 5.1, Eurogene shall not under any circumstances be liable to the Customer by reason of any negligence, breach of contract, term, condition and or warranty, breach of duty, including statutory duty and or regulation or any duty at common law and/or misrepresentation on the part of Eurogene, its servants and or agents, for any consequential, special, incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value, loss of goodwill and or reputation, loss of use of money, loss of use of  farm stock or otherwise) and whether occasioned by the negligence of Eurogene, its servants and/or agents, even if advised of the possibility of such damages

5.13 These terms shall not operate to exclude or limit any statutory rights which cannot be legally excluded or limited.

5.14 Subject to Clause 5.13, Eurogene shall have no liability in contract, tort (including, without limitation, negligence) or otherwise for any loss or cost suffered or incurred by the Customer arising out of or in connection with any act or omission on the part of a person to whom any of Eurogene’s duties or obligations under these Terms and Conditions has been delegated or sub-contracted provided that Eurogene exercised reasonable skill and care in the act of making the delegation or sub-contract in question.

5.15 Nothing in these Terms and Conditions shall be deemed to relieve the Customer of any common law duty to mitigate any loss or damage incurred by it.

5.16 Eurogene may in its discretion delegate any of its duties in the provision of services to the Customer.

6. Payment – 6.1 Prices are inclusive of VAT, which the Customer shall be liable to pay to Eurogene.

6.2 Unless otherwise agreed in writing or otherwise stated on the invoice by Eurogene and the Customer, the Customer shall pay the price in euro.

6.3 Eurogene reserves the right to invoice the Customer and demand payment in advance of delivery of the Goods and/or the Services.

6.4 Time for payment shall be of the essence.

6.5 No payment shall be deemed to have been received until Eurogene has received payment in full in cleared funds.

6.6 All payments payable to Eurogene under the Contract shall become due immediately on its termination notwithstanding any other provision.

6.7 Payment for goods supplied is due 30 days after delivery.

6.8 If the Customer fails to pay any sum due under the Contract, then, without limiting any other right or remedy it may have, Eurogene may:

(i) charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of 12% per annum chargeable per calendar month or part thereof from the date on which the amount became due for payment until the date on which it is paid;

(ii) require payment in advance of delivery in relation to any goods not previously delivered;

(iii) refuse to make delivery of any undelivered goods whether ordered under the contract or not and without incurring any liability whatever to the buyer for non-delivery or any delay in delivery;

(iv) appropriate any payment made by the Customer to such of the Goods and/or Services as Eurogene may think fit (notwithstanding any purported appropriation by the Customer); and/or

(v) terminate the contract.

6.9 The Customer shall pay Eurogene any expenses incurred in relation to the recovery of outstanding and due Invoices, including any legal costs reasonably incurred.

6.10 The Customer shall make all payments due in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless it is agreed in writing or unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Eurogene to the Customer.

6.11 Where Eurogene has any of the Customer’s property in its possession then for as long as any payment due from the Customer to Eurogene is due and unpaid, Eurogene shall have a lien on all such property and shall be entitled to retain such property until such amounts have been paid in full in cleared funds. Eurogene shall have the right to sell, destroy or otherwise dispose of such property without liability at its absolute discretion.

7. Risk – Except as provided for in Clauses 5.3, the risk in the goods will pass to the Customer at the moment the goods are dispatched from Eurogene’s premises. Where the Customer chooses to collect the goods himself, risk will pass when the goods are entrusted to him or set aside for his collection, whichever happens first. Where goods are supplied by Eurogene and are to be held by Eurogene for the Customer as part of a storage service, risk will pass to the Customer on the next business day following their arrival at Eurogene’s premises.
8. Passing of Title – Title to any goods supplied by Eurogene to the Customer will not pass until such time as the agreed payment has been made in full by or on behalf of the Customer to Eurogene.
9. Force Majeure – If delivery is delayed by strikes, lock-outs, fire, accidents, defective materials, delays in receipt of raw materials or bought-in goods or components or any other cause beyond the reasonable control of Eurogene, a reasonable extension of time shall be granted and the Customer shall pay such reasonable extra charges as shall have been occasioned by the delay. If the delay persists for such time as Eurogene considers unreasonable, it may, without liability on its part, terminate the contract.
10. Assignment and Sub-Contracting – Eurogene may assign the Contract or any part of it to any person or company. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Eurogene.
11. Costs and Other Expenses – Except as specifically agreed to the contrary, any costs in relation to any agreement subject to these Terms and Conditions and its subject matter which are incurred by either of the parties shall be borne in full by that party.
12. Severability – If any terms or provision in these Terms and Conditions shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form any part of an agreement subject to these Terms and Conditions, but the validity and enforceability of the remainder of said agreement shall not be affected.
13. Waiver – The waiver or forbearance or failure by or of a party to insist on due and proper performance of the contract, whether by design or inadvertence, shall not be construed in any circumstances as a waiver or abandonment of that party’s rights to future performance of such provision and the other party’s obligation in respect of such future performance shall continue in full force and effect.
14. Termination – Either party shall be entitled forthwith to terminate any contract between the parties for the sale and purchase of goods and/or services by written notice to the other if that other party commits any continuing or material breach of any of these Terms and Conditions or any contract between the parties and in the case of such a breach which is capable of remedy fails to remedy the same within 30 days after receipt of a written notice giving full particulars to the breach and requiring it to be remedied.
15. Proper Law – Any agreement subject to these Terms and Conditions shall be governed by and construed in accordance with Irish law and each party agrees to submit to the exclusive jurisdiction of the Irish courts as regards any claim or matter arising under this agreement.
16. Dispute resolution – 16.1 In the event of any dispute between Eurogene and the Customer under a Contract and/or its construction or the construction and/or application of these Terms and Conditions, the matter shall be referred in writing in the first instance to the nominated representative of each of Eurogene and the Customer whose name is notified in writing by the nominating party to the other party with a view to the dispute being resolved in good faith.

16.2 If the dispute cannot be resolved within 25 Business Days of the referral, or such other longer period as may be agreed upon between the parties in writing, the parties shall refer the dispute to a single mediator to be appointed in accordance with the mediation procedures of the Centre for Effective Dispute Resolution (the “CEDR”). The Mediation shall be conducted in Dublin in accordance with the CEDR Model Mediation Procedure. The cost of such mediation shall be borne equally by the parties.

16.3 If the dispute cannot be resolved within 25 Business Days of the dispute being referred to a Mediator, or such longer period as may be agreed between the parties in writing, either party may refer the matter to Court.

16.4 No party shall be obliged to follow the procedures set out in Clauses 16.1, 16.2 and 16.3 above where that party intends to apply for injunctive relief against any of the others for the purpose of protecting its proprietary rights or confidential information, provided that there is no delay in the prosecution of that application.