PIC Australasia Pty Ltd (ABN 61 080 582 074)
TERMS AND CONDITIONS OF SALE/SUPPLY
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 “PIC” shall mean PIC Australasia Pty Ltd.
1.2 The “Purchaser” shall mean the purchaser or lessee of any goods or service from PIC.
1.3 Goods shall mean any associated product or service, produced or provided by PIC, in accordance with the Purchaser’s instructions/order including live animals, semen or ova.
2. ORDERING AND SUPPLY
2.1 PIC shall use its best endeavours to supply pigs, semen (“Liquid Genes”) and/or porcine material in accordance with the details set out on the order at or within the time or times specified thereon. While PIC makes every effort to deliver pigs, liquid genes and/or porcine material on time, specified or suggested delivery dates will not be of the essence of these conditions. PIC will have no liability for any loss caused by late delivery;
2.2 Where the agreement provides for the supply of pigs, liquid genes and/or porcine material by separate shipments PIC will use its best endeavours to supply each shipment of pigs, liquid genes and/or porcine material but if, having supplied one or more shipments, PIC is unable from any cause whatsoever to supply the remaining shipments then and in any such case PIC 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 be treated, unless otherwise agreed by the parties, as null and void but without prejudice to the right of PIC to be paid in full for pigs, liquid genes and/or porcine material already supplied under such agreement;
2.3 PIC will be entitled to withhold the delivery of any pigs, liquid genes and/or porcine material and the performance of any other obligation incurred by it to the Purchaser for the supply of pigs, liquid genes and/or porcine material until payment of all monies owed by the Purchaser to PIC on any account (including without prejudice to the generality to the foregoing monies due in respect of pigs, liquid genes 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, liquid genes and/or porcine material, the full purchase price of those pigs, liquid genes and/or porcine material shall, unless otherwise agreed by PIC, remain payable as if that pig or those pigs, liquid genes and/or porcine material had been delivered on that date for delivery.
3.1 Any order received by PIC from the Purchaser and/or use of this account shall constitute acceptance of these terms and conditions of sale/supply.
4.1 Pigs, liquid genes 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 PIC and/or the carriers employed by PIC in writing of all loss, damage or injury incurred prior to or on delivery within three (3) days of the receipt of the pigs, liquid genes and/or porcine material. If this notice is not given within the specified period then PIC reserves the right not to credit the Purchaser.
5. WARRANTIES OF PIC
5.1 Where 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 to the Purchaser;
5.2 Where a right or remedy which is not capable of exclusion, modification or restriction by agreement is conferred on the Purchaser by a law referred to in sub-clause 5.1 of the condition, and that law allows PIC to limit its liability in relation to that right or remedy, it shall be a term of agreement that the liability of PIC is limited to the maximum extent of limitation permitted in accordance with that law;
5.3 All Natural Service Boars supplied by PIC 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 PIC 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 PIC 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 PIC 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 PIC, or their progeny.
5.7 Liquid genes supplied by PIC will be of good concentration and alive at the time they leave PIC’s premises and the liquid genes will be fit for administration to female pigs.
5.8 In-Pig Gilts may be supplied by PIC, however PIC does not warrant that the gilts are in-pig. If any gilt is found not to be in-pig PIC will issue a credit note for the difference between PIC’s then current list price for an in-pig gilt and PIC’s then current list price for a maiden gilt. PIC 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 PIC shall not be liable for any breach whatsoever of either sub-clauses 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/supply.
6. WARRANTIES OF PURCHASER
6.1 The Purchaser will use the pigs, liquid genes and/or porcine material purchased under these terms and conditions of sale/supply, 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, liquid genes and/or porcine material purchased under these terms and conditions of sale/supply, or any semen collected from AI Boars, for the production of pigs to be used by Purchaser or any other person or entity as breeding animals or for sale/supply as breeding animals without the prior approval of PIC.
6.3 The Purchaser will not use, sell or transfer the progeny of the pigs, liquid genes and/or porcine material purchased under these conditions of sale/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. PIC encourages the Purchaser to test 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 acclimatise 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 PIC 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 PIC 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. PIC 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 PIC’s veterinarian;
8.1.2 If the pig concerned is then considered by PIC to have been incapable of breeding at the time of delivery PIC will issue the Purchaser a letter authorising slaughter and stating that upon receipt of a copy of the slaughter advice, a copy of the remittance advice of the amount realised and the veterinarian’s certificate (where requested by PIC) PIC will issue a credit note for the amount invoiced for the pig and the delivery charge for the pig less the slaughter price;
8.1.3 If the pig dies or is slaughtered before the Purchaser has made a complaint under Clause 5. (Warranties of PIC) a credit note shall be issued if the postmortem carried out by a PIC appointed veterinarian reveals a defect rendering the pig incapable of breeding at time of delivery;
8.2 In case of a liquid gene complaint the Purchaser shall write to PIC no later than thirty (30) days after delivery of the liquid genes concerned stating delivery date, invoice number, batch number and the exact nature of the complaint. If the liquid genes do not meet the warranties set out in these terms and conditions of sale/supply then PIC may issue a credit for the cost of the liquid genes.
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 provides PIC with evidence satisfactory to PIC of the existence of the agent, and if PIC receives from Customer the notice and complaint required by the complaint process before the animals carrying the agent are removed from isolation, PIC 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, PIC 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 PIC will issue credits only if the complaint is received within:
8.5.1 Thirty (30) days after delivery for complaints based on structural 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 liquid genes; and
8.5.4 One hundred and fifty (150) days after delivery for complaints regarding Gilts and Natural Service Boars which do not relate to structural soundness.
8.6 PIC will issue credits only if the complaint procedures are followed. If the Purchaser does not owe PIC for any other pigs, liquid genes 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 PIC) no liability is accepted by PIC for any loss or damage caused directly or indirectly by any inaccuracy in any description of the pigs, liquid genes and/or porcine material sold by PIC to the Purchaser.
10.1 Payment shall be made by the Purchaser within thirty (30) days of the date of invoice and if the pigs, liquid genes and/or porcine material are delivered to the Purchaser over a period of time or on separate occasions then PIC shall be entitled to issue separate invoices in respect to each shipment and payment shall be made of the amount shown on each such invoice within thirty (30) 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. PIC 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 PIC has an equitable mortgage over pigs, liquid genes and/or porcine material sold to the Purchaser. Until the pigs, liquid genes and/or porcine material have been paid for, such equitable mortgage shall remain in force and shall entitle PIC to seize the pigs, liquid genes and/or porcine material should there be default in payment for same.
10.4 The Purchaser irrevocably gives PIC (or its agents) authority without the necessity of giving any notice to enter all premises at which PIC on reasonable grounds believes the goods to be stored, to inspect, remove or repossess any goods supplied by PIC and not paid for by the Purchaser. PIC 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 PIC against any liability against any third party suffered by PIC 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 PIC acts in accordance with good breeding practices to ensure that pigs, liquid genes and/or porcine material are free from infectious agents, the prices payable reflect that PIC will have no liability for risk of loss of or damage to pigs, liquid genes and/or porcine material from and after delivery to Purchaser. PIC’s liability for losses due to economically significant infectious agents, whether transmitted by or through liquid genes or otherwise, or due to advice and information given by PIC, whether oral or written, or due to PIC’s breach of these conditions, or due to any other cause in respect of any pigs, liquid genes 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, liquid genes and/or porcine material are purchased by Purchaser, a refund of the invoiced cost of the pigs, liquid genes and/or porcine material in question, less slaughter value. PIC 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 PIC or collected from AI Boars purchased from PIC. PIC 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 PIC’s liability in respect of death or personal injury of an individual caused by PIC’s negligence.
- LIMITATION PERIOD
12.1 Any claim, action or litigation, alleged to arise out of the purchase of pigs, liquid genes and/or porcine material from PIC 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, semen and porcine material. 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 PIC attempts to minimize the presence of pathogens and diseases in its herds and in the pigs, liquid genes and/or porcine material it sells, PIC CANNOT AND DOES NOT WARRANT THE ABSENCE OF ANY PATHOGENS OR DISEASE IN THE PRODUCTS SOLD BY PIC. PATHOGENS OR DISEASES MAY BE PRESENT AT TIME OF SALE/SUPPLY 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 PIC to Customer. No other warranties, expressed or implied are given. Except as otherwise set out in these terms and conditions of sale/supply, all pigs, liquid genes and/or porcine material sold under these terms and conditions of sale/supply are sold “AS IS”. PIC SPECIFICALLY GIVES NO WARRANTY OF MERCHANTABILITY, HEALTH, OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS SPECIFICALLY STATED IN THESE TERMS AND CONDITIONS OF SALE/SUPPLY. PIC specifically disclaims any warranty of the genetic make-up of pigs, liquid genes and/or porcine material, the performance of pigs, liquid genes and/or porcine material, or the characteristics or performance of the progeny of pigs, liquid genes and/or porcine material, except as otherwise set out in these terms and conditions of sale/supply. There are no warranties which extend beyond these terms and conditions of sale/supply.
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 PIC’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 LIQUID GENES, AS PROVIDED IN CLAUSE 8. (CREDITS AND PROCEDURES), OF THESE TERMS AND CONDITIONS OF SALE/SUPPLY, IS THE EXCLUSIVE REMEDY AGAINST PIC FOR ANY CLAIM ARISING OUT OF THE PURCHASE OF PIGS, LIQUID GENES AND/OR PORCINE MATERIAL FROM PIC 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 THE PURCHASER. THE PURCHASER 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 understands 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 PIC except as herein provided.