KAPP AGREEMENT - TERMS AND CONDITIONS
This Agreement is made between ABS and the Customer listed on the first page of the Proposal on these terms and conditions (“KAPP Terms” and the terms of the Proposal (collectively the “Agreement”). ABS and Customer may each be referred to as a “Party” and collectively as the “Parties.” Any notice given under this Agreement shall be in writing in the English language and shall be given by hand or sent by prepaid airmail, or where specifically indicated by e-mail, to the address of the receiving Party on the first page of the Proposal.
1. DEFINITIONS. “Breeding Services” means artificial insemination, ovum-pick up, embryo transfer, in-vivo fertilization, pregnancy checks, or any related breeding or veterinary services; “Distributors” means distributors, resellers, sales agents, authorized representatives, or independent contractors; “Germplasm” means bovines, semen, and embryos; “Products” means Germplasm, Breeding Services, genetic management services, laboratory services, and related equipment or supplies;. Other terms defined in the Agreement have the meanings given. The word “including” shall be understood to mean “including without limitation.”
2. ORDERING & SHIPPING. All orders of Products under the Agreement are subject to acceptance by ABS and availability at time of shipment. All orders are final, cannot be canceled, and are non-refundable unless otherwise noted in this Agreement. Upon receipt, you shall inspect the Products to confirm that they are as ordered. You must notify ABS of any loss, damage, or error as to Product type or quantity (“Nonconforming Products”) within 7 days of delivery, or in the case of loss of Germplasm due to a shipping tank failure, within 24 hours of delivery, and ABS will replace or refund in accordance with the warranty below. Customer shall return or destroy all Nonconforming Products as instructed by ABS.
3. PRICE & PAYMENT. ABS will invoice you monthly for the Program Fees. All payments are due 30 days from the invoice date. If ABS does not receive payment of any sum due to it on or before the due date, simple interest shall thereafter accrue on the sum due to ABS from the due date until the date of payment at a per-month rate of 1.5%, or the maximum permitted by law, whichever is lower. You shall provide ABS with any information or documentation necessary for ABS to invoice you the amount due to ABS. Payment of sales tax is your responsibility and shall be applied to orders in accordance with all applicable tax laws. All Products ship Incoterms 2010 CPT (first carrier) to the invoice location, unless otherwise stated by ABS. Except as otherwise stated herein, title will pass to the customer at first carrier. For any Products charged by pregnancy, pregnancy shall mean a positive pregnancy check (ultrasound or non-return) between 30- and 45-days post breeding, unless otherwise agreed by ABS.
The Cow Fee will be reviewed and adjusted annually to reflect increases in the Consumer Price Index published by the United States Department of Labor. ABS will provide you written notice of any increase starting on the statement the increase in applied. If at any time during the Term there an extraordinary or significant increase in the cost of supplying or producing the Products, including due to hyperinflation, if ABS so requests, you agree to meet and negotiate a new Cow Fee and any change shall be agreed in writing. If the Parties are unable to mutually agree a new price within 30 days, ABS may at its option terminate the Agreement on 15 days’ prior written notice to you.
If the Custom Index or any of Customer Background information under Section 1 of the Proposal is incorrect or changes, ABS may in its sole discretion to change the Cow Fee by providing written notice to you. You will have 15 days from receipt of the new Cow Fee to accept or reject by emailing your Key Account Manager. If you reject the new Cow Price, the Agreement shall automatically terminate and any outstanding amount due from you will be immediately payable. If ABS does not receive such written communication from you in the 15 day period, the new Cow Fee will be deemed accepted and the Program Term will continue.
4. USE. ABS Products are approved for animal agriculture use only. You may not export Products or distribute, sell, or transfer Products to any third-party without the express written consent of ABS. Germplasm may only be used in animals owned or leased by you in the ordinary course of business subject to the restrictions in this Agreement. You may not without the prior written consent of ABS: reverse engineer, genotype, sequence, clone, reverse sort, genome edit, analyze or manipulate the Germplasm; produce male progeny from Germplasm for the purpose of collecting and selling their semen; or use Germplasm or its Derivatives for any research or development use, including in public or private research programs. Sexed semen may be used solely for single artificial insemination of a single bovine, with the intent to produce a single offspring.
ICON SIRES™: You are not permitted to use Icon Sires Germplasm or its Derivatives for any purpose whatsoever, regardless of how it came into your possession, without first obtaining a conditional right to do so by signing an Icon Sires Contract. Male offspring of Icon Sires that are not purchased by ABS under the Icon Sires Contract may only be used in your herd for natural service or sold for slaughter, notwithstanding of any terms to the contrary in the Icon Sires Contract.
NUERA™ PROGRAM: NuEra Germplasm may only be used to create a terminal crossbred offspring (beef x dairy or beef x beef) that is sold or otherwise transferred into the beef supply chain (e.g. sale to a slaughterhouse or feed yard) for the purpose of slaughter. NuEra offspring may not be registered with any breed association without the written permission of ABS.
All rights in the Germplasm not expressly granted herin are reserved by ABS and all other uses of the Germplasm are strictly prohibited without the prior written consent of ABS.
5. BREEDING SERVICES. You are responsible, at your own cost, for preparing animals for receipt of any Breeding Services in accordance with ABS’s instructions. Any hormones or other veterinary drugs you elect to use in such preparation are used at your sole responsibility, liability, administration, and cost. Additional fees may apply if animals are not properly prepared. You are responsible for Products not used during the Breeding Services, including fresh embryos. ABS may provide certain Breeding Services through a subcontractor.
6. WARRANTIES AND LIABILITY. ABS warrants that the Germplasm conforms to the description on the individual straw or ampule it is packaged in. Except as otherwise set out in this Agreement, all Products provided by ABS are sold "AS IS". ABS SPECIFICALLY GIVES NO WARRANTY OF MERCHANTABILITY, HEALTH, OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT AND TO THE EXTENT ALLOWABLE BY LAW, ALL OTHER WARRANTIES ARE DISCLAIMED.ABS specifically disclaims any warranty of (a) the genetic make-up of the Products; (b) the performance or results of the Products or the Program, or the characteristics or performance of the offspring of the Products; and (c) the absence of pathogens from the Products. The warranty described above is contingent upon the proper use by you of the Products in line with industry standards and in compliance with this Agreement and does not cover any Products which have been modified in any manner or subject to abuse, neglect, misuse or alteration. Your sole remedy for a Product’s non-conformity to this warranty is to return it in unused condition and a credit of the purchase price of the Product will be issued to your account, or if sold as part of a package, the value of the non-conforming Product will be the ASP for the same or similar Products in the region. For clarity, ABS does not warrant that Product descriptions in marketing materials or website content, or that other information related to the Products is accurate, complete, current, or error-free.
LIABILITY DISCLAIMER: ABS, ITS AFFILIATES, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AND DISTRIBUTORS (“ABS PARTIES”) ENTIRE LIABILITY ON ANY CLAIM ARISING FROM OR RELATED TO THE PRODUCTS (WHETHER FROM BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR FIDUCIARY DUTY) SHALL NOT EXCEED THE PURCHASE PRICE PAID TO ABS FOR THE PRODUCTS THAT ALLEGEDLY CAUSED THE LOSS, OR IF ABS SO ELECTS, REPLACEMENT OF THE PRODUCT. IN NO EVENT SHALL ANY ABS PARTY BE LIABLE FOR INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, MULTIPLIED DAMAGES OR LOST PROFITS SUSTAINED BY YOU OR ANY OTHER PERSON, OR FOR ANY FAILURE OF COWS TO CALVE. YOU AGREE NOT TO ASSERT ANY NON-CONTRACTUAL CLAIM UNDER STATE LAW ARISING FROM OR RELATED TO YOUR PURCHASE OR USE OF ANY PRODUCT. YOU ASSUME ALL RISK AND LIABILITY ARISING FROM OR RELATED TO YOUR USE, HANDLING, OR STORAGE OF PRODUCTS OR RELATED TO DEFECTS IN ANY STORAGE CONTAINERS OR TANKS CONTAINING PRODUCTS.
Liquid Nitrogen Notice: You shall transfer all Germplasm from shipping tanks to your own nitrogen tanks immediately upon receipt. You are responsible for providing and maintaining liquid nitrogen tanks, including nitrogen levels and tank operation at all times. ABS may provide liquid nitrogen services to customers as an ancillary service on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, ABS Parties shall not be responsible for any loss and/or damages, direct or indirect, arising out contract, tort, or fiduciary duty by providing liquid nitrogen to you. To the extent allowable by law, all liability for the supply, maintenance, or servicing of liquid nitrogen storage tanks is expressly disclaimed by ABS Parties.
7. DISTRIBUTORS. ABS contracts with Distributors from whom you may receive Products directly. Distributors are not the agents, employees, or servants of ABS and are not authorized to contract for, or on behalf of, ABS. Because ABS does not control the Products after transfer to a Distributor, ABS disclaims all liability for the Products, services, actions, or work provided to you by Distributors.
8. INDEMNITY. You agree to defend, indemnify and hold all ABS Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees, arising from or related to your: (a) misuse of ABS Products; (b) breach or alleged breach of this Agreement; (c) violation of any third-party right, including any intellectual property right, publicity, confidentiality, property or privacy right; or (d) violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental, regulatory, administrative and legislative authorities; and (e) any misrepresentation made by you.
9. INTELLECTUAL PROPERTY. All intellectual property rights in the Germplasm and the genetic materials contained in or derived from the Germplasm (in whole or in part) or its progeny, including any DNA, RNA, protein or other molecular or hereditary materials (“Derivatives”) and are the sole and confidential property of ABS and are treated by ABS as trade secrets. ABS grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to such intellectual property rights to use the Germplasm and Derivatives strictly as permitted under Section 4 (USE). Any intellectual property existing in or created, generated or discovered from ABS Information is owned by ABS. Trademarks, logos and service marks on ABS materials, Products, websites are registered and unregistered trademarks of ABS (“ABS Marks”). No license or right to use any ABS Mark is granted by this Agreement. All other uses of ABS intellectual property (including the ABS Marks) are strictly prohibited without the prior written consent of ABS.
10. DATA & SOFTWARE. Some Products allow you to download ABS owned or licensed software ("Software") onto your computer or device, which may update automatically. ABS grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Software, solely in connection with the Products. To the extent any component of the Software is offered under a third-party sub-license, you must use that Software in compliance with the terms and policies of the third-party supplier, in addition to this Agreement. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Software or Products, attempt to do so, or assist anyone in doing so. As part of ABS’s effort to continually improve its Product offerings, ABS employees or Distributors may collect data or information, including herd performance data, from your technology systems (“Data”). By permitting ABS employees or Distributors to access your Data, you grant ABS a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide license to use the Data for ABS business purposes. ABS understands that maintaining anonymity of your Data is important to your business operations, and will not use your Data in a way that discloses your individual or business identity to the public. Any data, reports, information or intellectual property created, generated or discovered by ABS from the Data (individually or in aggregate) is the sole property of ABS, and no ownership rights in such data, reports, information or intellectual property shall transfer to you or any third-party.
11. TERMINATION. Either you or ABS may terminate the Agreement as follows: (a) either Party may terminate if the other Party (i) is in material breach any provision of the Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within 30 days after the breaching Party’s receipt of written notice of such breach or (ii) becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business; and (b) ABS may terminate for convenience with 30 days’ notice to you if it discontinues KAPP in your region or for any other reason.
The expiration or termination of the Program, for any reason, does not release either you or ABS from any obligation that: (i) has accrued as of the date of expiration or termination; (ii)comes into effect due to expiration or termination of the Agreement; or (iii) otherwise survives the expiration or termination of this Agreement implicitly or explicitly. After expiration or termination, you may buy Products through ABS’s traditional channels under ABS’s standard terms and conditions.
12. CONFIDENTIALITY. You acknowledge that the terms of this Agreement and any non-public information or data procured, provided, or generated by or on behalf of ABS under this Agreement, including for clarity genotypes, Test Results, indices (including the Custom Index), herd analysis, and recommendations is the confidential and proprietary information of ABS (“ABS Information”) and you agree to protect and safeguard the confidentiality of the ABS Information, not use the ABS Information, or permit it to be accessed or used, for any purpose other than in the Program or as permitted under this Agreement, and not to disclose any ABS Information to any person, except to your representatives on a need to know basis and who are subject to confidentiality obligations substantially similar to those contained in this section. You shall be responsible for any breach of this section caused by any of your representatives. Upon ABS’s request you shall return or destroy all of the ABS Information in your possession or control.
13. COMPLIANCE WITH LAWS. You agree to comply with all applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including all regulatory, administrative and legislative authorities, including any anti-corruption and bribery law or policy in connection with your purchase or use of the Products and in your dealings with ABS.
14. AUDIT RIGHTS. During the Term and for a period of two years thereafter (“Audit Period”), you shall maintain accurate and complete herd and animal sale/contract records. On 48 hours’ notice, during the Audit Period ABS may, at its own expense and during your normal business hours audit your books, records, and other documents as necessary to verify your compliance with this Agreement. Without prejudice to any rights or remedies ABS has under law, if during an audit, ABS finds that: (a) the number of Program Cows was under-reported to ABS for any reason by 5% or more for the audited period, ABS may charge you the Cow Fee plus $2 for each animal that was under-reported or (b) if you are signed up for the InFocus Incentive Program, the average selling price of InFocus Calves was under-reported to ABS for any reason by 5% or more for the audited period, ABS may charge you 1.5 times the difference between the actual average selling price and the under-reported average selling price.
15. RELATIONSHIP. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
16. GOVERNING LAW. This Agreement are governed by and construed in accordance with the laws of the State of Wisconsin, USA without giving effect to any principles of conflicts of law. You irrevocably submit to the exclusive jurisdiction of the courts of Wisconsin, USA over any claim or matter arising out of or related to this Agreement or your purchase or use of Products.
17. ENTIRE AGREEMENT. This Agreement together with any other documents incorporated herein by reference constitutes the sole and entire agreement of the Parties with respect to the KAPP Program, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to KAPP. This Agreement may only be amended, modified or supplemented in writing signed by each Party.
18. WAIVER & SEVERABILITY. ABS’s failure to enforce any provision of this Agreement, in whole or in part, is not a waiver of its right to do so later. If any provision of this Agreement is deemed invalid, void, or unenforceable for any reason, that provision shall be severed and shall not affect the validity or enforceability of any remaining provision, and the parties shall substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision.
19. ASSIGNMENT. You agree not to assign or transfer any of your rights or obligations under this Program without the prior written consent of ABS. Nothing in this Program shall restrict ABS from assigning this agreement to any other party. This Program is binding upon and inures to the benefit of the Parties and each of their permitted successors and assigns.
20. MODIFICATION. ABS may revise the KAPP Terms from time to time and will post the most current version on its website at KAPP Terms. You are bound by any revision and should review these KAPP Terms periodically. ABS may change the Key Account Manger and you may change the Customer Contact with written notice to the other Party. You acknowledge that the ABS Rep may change at any time.