1. General Terms and Conditions as of January 2025
1.1 Supplies of semen are subject to availability and all prices are subject to change with prior notice and customer acceptance. Prices quoted do not include GST.
1.2 The terms and conditions as of January 2025 (Terms and Conditions) supersede any other terms and conditions printed elsewhere and shall remain the current Terms and Conditions until further notice.
1.3 Bovigene New Zealand Limited, trading as World Wide Sires/New Zealand (WWS) at its sole discretion and upon giving notice, reserves the right to add, delete or amend products and/or services.
1.4 All sales are subject to payment by the 20th of the month following the date of invoice. Interest at a rate of 2.5% per month will be charged if payment is not made on the due date.
1.5 All costs, whether commissions, legal fees, collection charges or otherwise, incurred by WWS or its duly authorised agents relating to the recovery of any monies, goods or services that may be outstanding from time to time, shall be the responsibility of the customer.
1.6 The customer acknowledges that it has received a copy of these Terms and Conditions and, from the time that its first order is placed, agrees to be bound by them. An order for a product or service (Sales Order) from WWS's then-current catalogue shall be team deemed to be acceptance of the Terms and Conditions.
1.7 These Terms and Conditions are governed by and construed according to the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.
1.8 If any provision of these Terms and Conditions are held to be unenforceable, illegal, or invalid by any court or tribunal, the rest of these Terms and Conditions will remain in full force and effect.
2. Genetic Product Storage
2.1 Semen dispatched and received by the customer can be returned for storage in the customer’s name, but not for credit.
2.2 If a customer requests delivery of private genetic product that is in storage only, a charge (as set out in materials provided to the customer by WWS) will be incurred.
2.3 WWS may elect to charge a fee for the dispatching of any genetic product (as set out in materials provided to the customer by WWS).
2.4 All genetic product stored on behalf of a customer at the WWS depot shall be at the customer's own risk.
2.5 WWS reserves the right not to accept any dewar that does not meet the minimum specifications (as set by WWS) that is/will be stored or packed for delivery by WWS on behalf of the customer.
2.6 Third party handling fees apply and will be charged by WWS in its sole discretion.
3. Delivery
3.1 Delivery shall be made to the location specified in the Sales Order. The customer must specify the exact location in the Sales Order and ensure that the delivery person has access to the location specified in that Sales Order. Risk of loss, damage or deterioration of or to the goods passes to the customer upon dispatch of goods from the WWS depot by WWS.
3.2 WWS is not liable for any delay in or damage that occurs during delivery.
3.3 If a dewar or any other storage/delivery apparatus for customer use is provided by WWS, the customer accepts full responsibility for the dewar or storage/delivery apparatus (under the conditions specified in any instructions that may accompany the dewar or storage/delivery apparatus) until it is returned to the WWS depot. The customer accepts that the dewar or storage/delivery apparatus has a risk of failure and will accept full liability in the event that any such failure occurs. The customer acknowledges that no title in any dewar or storage/delivery apparatus supplied by WWS will pass to the customer, and that the customer will return the dewar or storage/delivery apparatus to WWS at its expense.
3.4 If a customer provides its own dewar or storage/delivery apparatus for use by WWS, then the dewar or storage/delivery apparatus remains at the sole risk of the customer. The customer indemnifies WWS for any damage to any item that belongs to WWS, the customer or any third party that is caused by a dewar or storage/delivery apparatus that belongs to a customer.
3.5 WWS shall not be liable in any way whatsoever for any accident or injury occurring as a result of incorrect or improper handling of a dewar while it is in the customer's possession.
3.6 It is the customer's responsibility to ensure that dewars remain filled with liquid nitrogen at all times while in the customer's possession. WWS will not accept any liability for any dry dewars.
3.7 All goods supplied by WWS are deemed to be accepted by the customer unless the customer provides notice of an issue to WWS within 10 working days of the goods being delivered.
4. Limitation of WWS's Liability and Indemnity for Breach
4.1 WWS warrants that it has good title to the products sold.
4.2 Although customers have gained a high degree of success in the use of products supplied by WWS, and every effort is made to ensure the supply of high quality products, WWS, its agents and contractors give no warranty whatsoever as to the description, quality or productiveness or the results which may be obtained in the use of WWS products. Any such warranty given by any of WWS's agents or employees is hereby excluded on the basis that such a warranty would have been given without the authority of WWS.
4.3 WWS's liability for any claim relating to any act or omission of WWS or its agents, employees or contractors, whether in negligence or contract or otherwise, shall not exceed the purchase price of the product sold or services provided. WWS has the right, at its discretion, to replace product. In no event shall WWS be liable for the customer's incidental or consequential damages, including (without limitation) economic loss.
4.4 The customer acknowledges that WWS will not at any time be responsible for any semen or technician services for any animal inseminations undertaken by the customer personally or by any other third party. The customer acknowledges that the success of any insemination or technician services cannot be guaranteed.
4.5 To the extent that the Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations on WWS, all such imposed warranties, conditions or obligations to the extent permitted by law are excluded and any warranty, condition or obligation imposed or implied under common law, equity or otherwise are excluded.
4.6 Where the customer acquires goods and/or services from WWS for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) the customer is acquiring the goods and/or services covered by these terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993; and
(ii) the goods and/or services are both supplied and acquired in trade from the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and
(b) the customer agrees that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms and Conditions to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
4.7 Any claim or dispute arising under these terms will be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
4.8 WWS will not be liable for any failure or delay in complying with any obligation imposed on it under these terms if the failure or delay arises directly or indirectly from a cause reasonably beyond its control.
4.9 The Customer indemnifies WWS against any loss, liability, costs or expenses suffered or incurred by WWS as a result of any breach of these Terms and Conditions by the Customer (including without limitation, economic loss, consequential loss and costs of enforcement (including, WWS's legal costs incurred on a solicitor client basis)).
5. Intellectual Property
5.1 The customer agrees and acknowledges that they are purchasing semen from WWS solely for the purpose of artificial insemination to facilitate pregnancies solely within its own herd. To this end, no semen or genetic material/information found to be existing in offspring (whether born or unborn) bred using semen supplied by WWS is permitted to be provided, or accessed by any third parties including, without limitation:
(a) for use in editing the genome of another animal;
(b) for producing semen without written consent being first obtained from WWS.
5.2 If the offspring bred using semen supplied by WWS semen is male and of interest for artificial breeding purposes (or may be likely to be), then the customer will offer WWS an exclusive right to purchase that offspring, at a fair and reasonable market price. If a fair and reasonable market value cannot be negotiated between WWS and the customer, then WWS will be under no obligation to purchase the male offspring. In the event that WWS elects not to purchase the male offspring, the male offspring may be sold, provided that the customer ensures that it is always a written condition of sale that the male offspring may only be used during male’s entire lifetime as a service bull for natural mating only (i.e. not for the collection of semen nor artificial breeding/artificial insemination), unless WWS first provides its written consent.
5.3 The customer will ensure that any third party purchasing female offspring bred using “NxGen” designated semen supplied by WWS is informed of, and agrees in writing to comply with all terms of WWS's "NxGEN Agreement".
5.4 The customer will at all times keep accurate records of semen use that is supplied by WWS and with offspring bred using such semen. The customer will not sell or dispose of any cow (pregnant or otherwise) that is derived from “NxGen” designated semen to any purchaser who is not a member of WWS's "NxGen" program, unless WWS's prior written consent is first obtained.
5.5 If the customer breaches any part of this clause 5, the parties will have 90 days to resolve any and all breaches of contract. If no resolution to any breach can be resolved in writing, the following will apply:
(a) all pregnancies or resulting animals will belong to WWS;
(b) a five NZD per straw royalty fee will be paid to WWS by the customer for all semen sold prior to the discovery of such a breach and continue for the lifetime of such product remains sold and will, therefore, apply to any descendant of such an animal if created and marketed; and
(c) the customer will grant WWS a worldwide, perpetual, assignable, non-revocable, royalty free licence in relation to any intellectual property rights obtained or claimed, based on, or derived from (in whole or in part), WWS's genetic material/information.
5.6 This clause 5 will apply no matter by what means the customer came to control or possess genetic material/information, semen or offspring supplied or originating from WWS.
5.7 The customer agrees that it is fair and reasonable that it is bound by the provisions of this clause 5 and that the provisions of this clause 5 are reasonably necessary to protect WWS's interest in its intellectual property.