COGENT BREEDING LIMITED

TERMS AND CONDITIONS

1. Introduction
1.1 These Terms and Conditions (“the Terms”) govern any contract made between Cogent Breeding Limited trading as “Cogent” (“Cogent”) for the supply of goods and/or services by Cogent to any person firm or company (“the Client”)
1.2 The Terms prevail over any written Terms and Conditions of the Client
1.3 Any variation to the Terms must be agreed in writing by a Director of Cogent
1.4 All contracts between Cogent and the Client will be governed by English Law and the parties agree to submit to the jurisdiction of the English Courts
1.5 The Terms shall apply to any contract between Cogent and the Client where the Client has had previous notice of the Terms even if the Order giving rise to such contract either makes no specific reference to the Terms or refers to other terms or conditions of contract
1.6 None of Cogent’s advertising or other promotional material is intended to constitute any representation or warranty as to its subject matter and no such material shall form part of any contract between Cogent and the Client The accuracy of any such material is not guaranteed and the Client shall not be entitled to rely upon it for any purpose relating to the observance or performance by Cogent of any obligation under any contract
2. Prices and Payment
2.1 The Client will pay to Cogent the prices set out in Cogent’s current price list prevailing at the date of dispatch of Cogent’s acknowledgement of order
2.2 In respect of any goods or services supplied under the Scheme payment is to be made within thirty days of the end of the month of Invoice save where the payment is required to be or has been prepaid by Standing Order or Direct Debit
2.3 Cogent reserves the right to charge the Client interest on overdue Invoices at the rate of 1½% per calendar month or part thereof from the date of Invoice until the date of payment
2.4 The Client will pay Cogent any expenses incurred by Cogent in connection with the recovery of outstanding Invoices (including legal costs on an indemnity basis).
2.5 The Client shall not be entitled to withhold any payment due to Cogent by reason of any claim by the Client in connection with any contract to which the Terms apply neither shall the Client have any right to set off against any amount due to Cogent any amount claimed by the Client from Cogent save to the extent of any Arbitrator’s award made hereunder
3. Delivery
3.1 Delivery dates are estimated only and the time for delivery of any goods or for the performance of any services by Cogent under any contract shall not be of the essence of that contract and failure to effect such delivery or performance by any specified date shall not constitute a breach of contract by Cogent which shall have power to postpone or suspend delivery of any goods or services contracted for any reason whatsoever at Cogent’s absolute discretion. The Client shall accept any such delayed or suspended deliveries (whether of goods or services) and shall not be entitled to any compensation in respect thereof
3.2 Delivery of goods or services shall be effected when the goods are unloaded or the services provided at the address(es) notified by the Client to Cogent
3.3 The risk in any goods shall pass to the Client at the time of delivery in accordance with the Terms
4. Cogent’s Liability
4.1 Cogent shall use all reasonable care to provide goods and/or services contracted under the Terms in accordance with all applicable laws and regulations
4.2 The obligation upon Cogent set out in Clause 4.1 shall (subject to the Unfair Contract Terms Act 1977) be in substitution for any other conditions terms warranties or other obligations (contractual or tortious) whether express or implied howsoever which (save to give the effect to the Terms) are hereby excluded
4.3 The Client must notify Cogent in writing of any claim concerning any Invoice of or any supply by Cogent within thirty days of the date of Invoice or supply (as the case may be) Cogent will not be liable in respect of any claim notified after such time
4.4 Cogent’s liability to the Client or to any other party for loss or destruction or failure of any goods or services supplied by Cogent caused by Cogent’s default in the performance of any of its obligations under the Terms (whether caused by the negligence of Cogent its employees or agents or otherwise) will be limited (at the option of the Client) to:-
4.4.1 The replacement of the goods or services which have been lost or destroyed or which may have failed which represents in Cogent’s absolute discretion (without being liable for loss) a reasonable comparable to the goods or services so lost destroyed or failed or
4.4.2 The reimbursement of the Client of the price actually paid by the Client to Cogent in respect of such lost destroyed or failed goods or services
4.5 Cogent will not be liable for any consequential loss or damage (including loss of profit or income) incurred by the Client or any other party
4.6.1 Whilst Cogent will sort sexed semen to a minimum of 88% purity of desired sex and 2,200,000 sperm cells per ¼cc straw it does not warrant that sexed semen attaining those levels will result in a corresponding sex ratio in calves produced therefrom
4.6.2 Whilst Cogent will use all reasonable endeavours to ensure that bulls whose semen is supplied to the Client shall conform with their current proof (as promulgated by the relevant trade standard body) Cogent shall not be liable to the Client for any loss or damage suffered by reason only that any calf produced from such semen shall fail to exhibit all or any of the characteristics disclosed by such proof
4.7 Without prejudice to the foregoing Cogent shall incur no liability to the Client for any loss or damage sustained or to be sustained arising out of the presence in any semen (sexed or conventional) of any genetic defect or disorder (including without limitation Complex Vertebral Malformation)
4.8 Cogent will not be liable for any damage to any cow or heifer as the result of pregnancy or parturition or any act or omission undertaken by independent contractors acting for Cogent in the performance of any obligation of Cogent
4.9 It is the Client’s responsibility to insure against any such risks loss or damage as are specified in this Clause 4
4.10 Nothing in the Terms shall require Cogent to provide veterinary or technical advice to any Client save as may be expressly agreed in writing to be so provided
4.11 Nothing herein contained shall exclude or restrict the liability of Cogent for any personal injury of death of any human being arising out of any cause for which Cogent is held by a Court of competent jurisdiction to be liable in negligence
5. Client’s liability
5.1 The Client shall take all necessary steps to use any goods or services supplied by Cogent in accordance with all applicable laws and regulations and will indemnify Cogent against any loss damage or liability arising out of any failure to take any such steps
5.2 The Client shall comply with Cogent’s directions for insemination of all semen (sexed or conventional) and will hold Cogent harmless against any loss or damage suffered by the Client in consequence (in whole or in part) of failure to so comply
6. Force Majeure
Cogent will not be liable for any failure to perform any contract between Cogent and the Client which is due to any circumstances beyond Cogent’s reasonable control including (but not limited to):-
6.1 Inability to secure labour materials supplies or transport or
6.2 Scarcity of power failure of refrigeration or failure of any biochemical or other necessary process in the evaluation sorting extraction storage delivery or administration of any goods or services
6.3 Machine breakdown fire storm flood act of God war civil disturbance strikes lockouts or industrial action of any form
6.4 Disease illness death or incapacity of any Cogent bull to provide healthy or suitable semen
6.5 Any law or governmental regulation affecting the supply of goods or services under the Terms

7. Termination
Either party shall be entitled forthwith to terminate any contract by written notice to the other if :-

7.1 That other party commits any continuing or material breach of any of the Terms 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 of the breach and requiring it to be remedied.

7.2 An encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party.

7.3 That other party makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or partnership) becomes bankrupt.

7.4 That other party goes into liquidation except for the purposes of an amalgamation reconstruction or other reorganisation and in such manner that the Company resulting from the reorganisation effectively agrees to be bound by or assume the obligations imposed upon that other party under the Terms.

7.5 That other party ceases or threatens to cease to carry on business.

7.6 Any waiver by either party of a breach of any of the Terms shall not be considered as a waiver of any subsequent breach of the same or any other terms.

7.7 The right to terminate any contract given by this clause shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

8. Arbitration
Any dispute arising between Cogent and the Client in connection with any contract between Cogent and the Client or in connection with any matter concerning the construction or application of the Terms or the rights of Cogent or the Client hereunder shall be referred to a single Arbitrator to be appointed in default of agreement by the President for the time being of the National Farmers’ Union and such Arbitration shall be conducted in accordance with the provisions of the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force