Terms and Conditions of Sale /Supply June 2015
The agreement for supply of pigs, semen and / or porcine material to which these terms and conditions are applicable embodies the entire understanding of the parties and there are no promises, terms, conditions or obligations oral or written expressed or implied other than those contained herein or otherwise in this agreement.
1.1 “CEFN” shall mean Cefn Genetics Pty Ltd or any associated division or company.
1.2 The “Purchaser” shall mean the purchase or lessee of any goods or services from CEFN.
1.3 Goods shall mean any associated product or services, produced or provided by CEFN, in accordance with the Purchaser’s instructions / order including live animals, semen or ova.
2. Ordering and Supply
2.1 CEFN shall use the best endeavours to supply pigs, semen and / or porcine material in accordance with the details set out in the order at or within the time or times specified thereon. While CEFN makes every effort to deliver pigs, semen and / or porcine material on time, specified or suggested delivery dates will not be of the essence of these conditions. CEFN will have no liability for any loss caused by late delivery.
2.2 Where the agreement provides for the supply of pigs, semen and / or porcine material by separate shipments CEFN will use its best endeavours to supply each shipment of pigs, semen and / or porcine material but if, having supplied one or more shipments, CEFN is unable from any cause whatsoever to supply the remaining shipments then and in any such case CEFN shall be at liberty to give notice thereof to the Purchaser and as from the date of such notice the uncompleted part of the agreement shall he treated, unless otherwise agreed by the parties, as null and void but without prejudice to the right or CEFN to be paid in full for pigs, semen and / or porcine material already supplied under such agreement.
2.3 CEFN will be entitled to withhold the delivery of any pigs, semen and / or porcine material and the performance of any other obligation incurred by it to the Purchaser for the supply of pigs, semen and / or porcine material until payment of all monies owed by the Purchaser to CEFN on any account (including without prejudice to the generality to the foregoing monies due on respect of pigs, semen and / or porcine material already delivered under the relevant agreement) shall have been made in full.
2.4 If the Purchaser purports to cancel the agreement within seven (7) days prior to the date for delivery of any pigs, semen and / or porcine material, the full purchase price of these pigs, semen and / or porcine material shall, unless otherwise agreed by CEFN, remain payable as if the pig or those pigs, semen and / or porcine material had been delivered on that date for delivery.
3.1 Any order received by CEFN from the Purchaser and / or use of the account shall constitute acceptance of these terms and conditions of sale / supply.
4.1 Pigs, semen and / or porcine material sold to the Purchaser shall be at the risk of the Purchaser immediately upon the consignment being transferred to the Purchaser’s vehicle or carrier or to the Purchaser’s premises;
4.2 The Purchaser must advise CEFN and / or the carriers employed by CEFN in writing of all loss, damage or injury incurred prior to or on delivery within three (3) days of the receipt of the pigs, semen and / or porcine material. If this notice is not given within the specified period than CEFN reserves the right not to credit the Purchaser.
5. Warranties of CEFN
5.1Where any provisions of these terms and conditions of sale /supply would, but for this sub clause, have effect of excluding restricting or modifying any rights or remedies granted to the Purchaser which by reason of any Commonwealth law or the law of any State or Territory of the Commonwealth of Australia are not capable of being excluded, restricted or modified by agreement such a provision shall not apply to the extent to which any such right or remedy is granted the Purchaser.
5.2 Where a right or remedy which is not capable of exclusion, modification or restriction by agreement is confirmed on the Purchaser by a law referred to in sub clause 5.1 of the condition, and that law allows CEFN to limit its liability in relation to the right or remedy, it shall be a term of agreement that the liability of CEFN is limited to the maximum extent of limitation permitted in accordance with that law;
5.3 All Natural Service Boars supplied by CEFN under these terms and conditions of sale / supply at over six (6) months of age will be fit for breeding after proper isolation and acclimatisation;
5.4 All Gilts supplied by CEFN under these terms and conditions of sale / supply at over six (6) months of age will be fit for breeding after proper isolation and acclimatisation;
5.5 All AI Boars supplied by CEFN under these terms and conditions of sale / supply at over six (6) months of age will be fit for breeding after proper isolation and acclimatisation.
5.6 All AI Boars supplied by CEFN under these terms and conditions of sale / supply will be capable of being trained to approach, mount and leave an AI dummy and will be capable of performing as AI Boars after training. This warranty of trainability will be valid only so long as the AI Boars are kept at a facility exclusively housing animals owned by the Customer, which have been purchased from CEFN or their progeny.
5.7 Semen supplied by CEFN will be of good concentration and alive at the time they leave CEFN’s / SABOR premises and the semen will be fit for administration to female pigs.
5.8 In-Pig Gilts may be supplied by CEFN, however CEFN does not warrant that the gilts are in-pig. If any gilt is found nor to be in-pig CEFN will issue a credit note for the difference between CEFN’s then current list price for an in-pig gilt and CEFN’s then current list price for a maiden gilt. CEFN shall not be liable for any other loss, injury, expense or damage of any kind whatsoever including any consequential loss arising from the fact that any gilt is not in-pig.
5.9 CEFN shall not be liable for any breach whatsoever of either subclauses 5.3, 5.4, 5.5, 5.6, 5.7 or 5.8 of this condition unless the Purchaser complies strictly with clause 8. (Credits and Procedures) of these terms and conditions.
5.10 The Purchaser’s attention is drawn to Clauses 13 (Disease Statement) and 14 (Disclaimer of Other Warranties) of these terms and conditions of sale.
6. WARRANTIES OF PURCHASER
6.1 The Purchaser will use the pigs, semen and/or porcine material purchased under these terms and conditions of sale, and any semen collected from AI Boars, only in the Purchaser’s own herds and on the Purchaser’s own animals.
6.2 The Purchaser will not use, sell or transfer the pigs, semen and/or porcine material purchased under these terms and conditions of sale, or any semen collected from AI Boars, for the production of pigs to be used by the Purchaser or any other person or entity as breeding animals or for sale as breeding animals without the prior approval of CEFN.
6.3 The Purchaser will not use, sell or transfer the progeny of the pigs, semen and/or porcine material purchased under these conditions at sales/supply except for slaughter.
6.4 Customer will not use Natural Service Boars purchased under these terms and conditions of sale/supply for artificial insemination.
7. ISOLATION AND ACCLIMATISATION OF ANIMALS
7.1 The purchaser will completely isolate all animals in a clean facility, physically separate from other pigs for at least six (6) weeks and will follow the recommendations of a licensed veterinarian for isolation and for release of animals after the isolation period.
7.2 The Purchaser will not commence acclimatisation procedures for at least six (6) weeks after delivery. CEFN encourages the Purchaser to treat animals, at the Purchaser’s expense, for pathogens or disease, which are of concern to the Purchaser while animals are in isolation. The Purchaser should engage an independent veterinarian to interpret test results and make recommendations for the release of the animals from isolation.
7.3 The Purchaser should acclimate animals in a separate facility alongside existing stock for thirty (30) days after isolation and should follow the recommendations of a licensed veterinarian for the release of animals from acclimatisation.
7.4 The Purchaser agrees and understands that CEFN will have no duty to credit the Purchaser for animals due to the presence of economically significant infectious agents unless the Purchaser complies with this isolation procedure.
8. CREDITS AND PROCEDURES
8.1 In case of a pig complaint;
8.1.1 The Purchaser shall write to CEFN after delivery of the pig concerned, stating delivery date, invoice number, the pig’s tag and/or ear tattoo number and the nature of the complaint. CEFN will then send a representative and/or request a certificate from the Purchaser’s veterinarian to state whether the pig was incapable of breeding and was so at the time of delivery. Such certificate will be referred to CEFN’s veterinarian. Or CEFN will supply an agreed volume at bacon to cover for non breeders and other issues- this will be identified in the proposal documentation or in the cin financial documentation.
8.1.2 If the pig concerned is then considered by CEFN to have been incapable of breeding at the time of delivery, CEFN will supply a replacement at bacon price to the Purchaser on the next shipment
8.1.3 If the pig dies before the Purchaser has made a complaint under Clause 5 (Warranties of CEFN) a credit not shall be issued if the post-mortem carried out by a CEFN appointed veterinarian reveals a defect rendering the pig incapable of breeding at the time of delivery;
8.2 In case of a semen complaint the Purchaser shall write to CEFN no later than thirty (30) days after delivery of the semen concerned stating delivery date, invoice number, batch number and the exact nature of the complaint. If the semen does not meet the warranties set out in these terms and conditions of sales/supply then CEFN may issue a credit for the cost of the semen.
8.3 In case of complaint based on the presence of economically significant infectious agents in animals, if the isolation procedures above have been followed, if Customer’s veterinarian produces CEFN with evidence satisfactory to CEFN of the existence of the agent, and if CEFN receives from Customer the notice and complaint required by the complaint process before the animals carrying the agent are removed from isolation, CEFN will credit the invoiced cost of the animals less assumed slaughter value.
8.4 In case of complaint based on incapacity to perform as an AI Boar, CEFN reserves the right to require additional training and testing before issuing credits and will not authorise slaughter of, or issue credit for, such an AI Boar unless it has determined that the AI Boar is untrainable.
8.5 CEFN will issue credits only if the complaint is received within:
8.5.1 Thirty (30) days after delivery for complaints based on structure soundness other than incapacity to perform as an AI Boar;
8.5.2 Sixty (60) days after delivery for complaints based on incapacity to perform as an AI Boar;
8.5.3 Thirty (30) days after delivery for complaints regarding semen; and
8.6 CEFN will issue credits only if the complaint procedures are followed. If the Purchaser does not owe CEFN for any other pigs, semen and or porcine material or on any other account the amount of credit note shall be paid to the Purchaser by cheque.
9.1 Subject to Clause 5 (Warranties of CEFN) no liability is accepted by CEFN for any loss or damage caused directly or indirectly by any inaccuracy in any description of the pigs, semen and/or porcine material sold by CEFN to the Purchaser.
10.1 Payment shall be made by the Purchaser within fourteen (14) days of the date of invoice and if the pigs, semen and/or porcine material are delivered to the Purchaser over a period of time or on separate occasions then CEFN shall be entitles to issue separate invoices in respect to each shipment and payment shall be made of the amount shown on each such invoice within fourteen (14) days thereof;
10.2 A late payment service charge of two percent (2%) per month may be added to any amount unpaid after thirty (30) days. CEFN may withhold future deliveries if the Purchaser fails to pay the total price of any shipment on delivery.
10.3 It is hereby agreed that CEFN has an equitable mortgage over pigs, semen and/or porcine material sold to the Purchaser. Until the pigs, semen and/or porcine material have been paid for, such equitable mortgage shall remain in force and shall entitle CEFN to seize the pigs, semen and/or porcine material should there be default in payment for same.
10.4 The Purchaser irrevocably gives CEFN (or its agents) authority without the necessity of giving any notice to enter all premises at which CEFN on reasonable grounds believes the goods to be stored to inspect, remove or repossess any goods supplied by CEFN and not paid for by the Purchaser. CEFN shall not be liable for costs, damage or expenses or any other monies or losses suffered by the Purchaser as a result of the action. The Purchaser shall also indemnify CEFN against any liability against any third party suffered by CEFN as a result of such actions.
10.5 Where applicable Goods and Services Tax shall be charged and payable in addition to the quoted price.
11. Limitation of Liability
11.1 While CEFN acts in accordance with good breeding practices to insure that pigs, semen and /or porcine materials are free from infections agents, the prices payable reflect that CEFN will have no liability for risk of loss of or damage to pigs, semen and / or porcine material from and after delivery to Purchaser. CEFN’s liability for losses due to economically significant infections agents, whether transmitted by or through semen or otherwise, or due to advice and information, given by CEFN, whether oral or written, or due to CEFN’s breach of these conditions, or due to any other cause in respect of any pigs. Semen and /or porcine material will be limited to the credit procedure in the manner provided in Clause 8, (Credits and Procedures) above or, in the event that no further pigs, semen and / or porcine material are purchased by Purchaser, a refund of the invoiced cost of the pigs, semen and / or porcine material in question less slaughter value. CEFN will have no liability for losses resulting or allegedly resulting from failure of female animals to conceive, farrow, or produce progeny after mating or administration of semen, whether purchased from CEFN or collected from AI Boars purchased from CEFN. CEFN will not be liable for incidental or consequential losses, including, without limitation, veterinarian’s fees, lost profits, loss of anticipated savings, or other incidental or consequential damages of any nature, provided always that nothing in these conditions shall exclude or limit CEFN’s liability in respect of death or personal injury of an individual caused by CEFN’s negligence.
12. Limitation Period
121.1 Any Claim, action or litigation alleged to arise out of the purchase of pigs, semen and / or porcine material from CEFN by Customer, must be brought not later than one (1) year after delivery.
13 Disease Statement
13.1 The Purchaser is experienced in pig breeding, and knows that organisms which cause pig diseases (called pathogens) are present in virtually every pig herd. New or different pathogens or diseases may arise at any time. The outbreak of diseases however is caused by many factors in addition to the presence of pathogens within a pig, pig herd, or semen. Although CEFN attempts to minimize the presence of pathogens and diseases in its herds and in the pigs, semen and / or porcine material it sells, CEFN CANNOT AND DOES NOT WARRANT THE ABSENCE OF ANY PATHOGENS OR DISEASE IN THE PRODUCTS SOLD BY CEFN. PATHOGNES OR DISEASES MAY BE PRESENT AT THE TIME OF SALE OR MAY APPEAR LATER.
14 Disclaimer of other Warranties
14.1 These terms and conditions of sale/supply contain all of the warranties made by CEFN to Customer. No other warranties, expressed or implied are given. Except as otherwise set out in these terms and conditions of sale, all pigs, semen and / or porcine material sold under these terms and conditions of sale / supply are sold ”AS IS”. CEFN SPECIFICALLY GIVES NO WARRANTY OF MERCHATABILITY, HEALTH, OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS SPECIFICALLY STATED IN THESE TERMS AND CONDITIONS OF SALE. CEFN specifically disclaims any warranty of the genetic make-up of pigs, semen and / or porcine material, the performance of pigs, semen and / or porcine material, or the characteristics or performance of the progeny of pigs, semen and / or porcine material, except as otherwise set out in these terms and conditions of sale. There are no warranties, which extend beyond these terms and conditions of sale.
15 Non Waiver
15.1 Failure to enforce any provision in these terms and conditions of sale/supply will not be deemed a waiver of CEFN’s future right to enforcement of that provision or any other provision in these conditions.
16 Exclusive Remedy
16.1 THE PURCHASER’S REMEDY OF CREDIT FOR THE INVOICED COST OF AN ANIMAL LESS SLAUGHTER VALUE, OR CREDIT FOR THE INVOICED COST OF SEMEN, AS PROVIDED IN CLAUSE 8 (CREDITS AND PROCEDURES) OF THESE TERMS AND CONDITIONS OF SALE/SUPPLY, IS THE EXCLUSIVE REMEDY AGAINST CEFN FOR ANY CLAIM ARISING OUT OF THE PURCHASE OF PIGS, SEMEN AND / OR PORCINE MATERIAL FROM CEFN BY THE PURCHASER. ALL OTHER REMEDIES, WHETHER UNDER STATUTE, REGULATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY OF ANY NATURE, ARE EXPRESSLY WAIVED BY CUSTOMER. CUSTOMER IS AWARE OF THE RISKS OF PIG PRODUCTION AND THEREFORE ACKNOWLEDGES THAT THIS WAIVER IS NEITHER UNREASONABLE NOR UNCONSCIONABLE.
17 Entire Agreement
17.1 These Terms And Conditions of Sale / Supply constitute the entire Agreement of the parties regarding the matters covered herein and supersedes all other agreements, representations, or negotiations between or by the parties hereto, whether oral or written, regarding such matters. These terms and conditions of sale/supply may not be amended except by a written document signed by both parties. The Purchaser acknowledges that the Purchaser has read and understood these terms and conditions of sale/supply, and that The Purchaser entering into these terms and conditions of sale/supply is voluntary and not done in reliance of any representation of CEFN except as herein provided.