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. DEFINITION
1.1 ‘Contract’ means the Contract formed between PIC and the Customer by an Order being placed by the Customer and accepted by PIC.
1.2 The ‘Customer’ shall mean the purchaser or lessee of any goods or service from PIC.
1.3 ‘Delivery Date’ means the date or date range specified in an Order or order confirmation issued by PIC.
1.4 ‘Goods’ shall mean any associated product, produced or provided by PIC, in accordance with an Order accepted by PIC, including pigs, Liquid Genes, porcine ova, and other porcine material.
1.5 ‘Order’ means an order placed by Customer with PIC for Goods from time to time.
1.6 ‘PIC’ shall mean PIC Australasia Pty Ltd.
2. ORDERING AND SUPPLY
2.1 Delivery Dates are estimates only. PIC will endeavour to supply Goods by the Delivery Date, however, PIC will have no liability for any loss where delivery occurs after the estimated Delivery Date.
2.2 If Goods are to be supplied by separate deliveries, and if PIC is unable for any reason to supply all or any of those deliveries (“Undelivered Goods”), PIC may, by written notice to Customer, cancel all or any remainder of the Order (as the case may be), and PIC will either not charge Customer for the Undelivered Goods or, if already paid for, refund to Customer the payment for the Undelivered Goods.
2.3 If Customer cancels any Order within 7 days prior to the Delivery Date, then unless otherwise agreed by PIC, the full purchase price of the Order remains payable as if the Goods had been delivered on the Delivery Date.
2.4 If any money is owed by Customer to PIC on any account, PIC is entitled to withhold the delivery of any Goods and is not required to perform any obligation related to delivery of Goods to Customer until payment of all monies owed by Customer have been made in full.
3. ACCEPTANCE OF TERMS AND CONDITIONS
Any Order placed by Customer constitutes ongoing acceptance of these terms and conditions.
4. DELIVERY
4.1 Goods sold to Customer are at the risk of Customer immediately upon loading of the Goods on to Customer’s vehicle or carrier’s vehicle, or delivery to Customer’s premises, whichever occurs first.
4.2 Customer must advise PIC and/or the carriers engaged by PIC in writing of all loss, damage or injury to Goods (“Damaged Goods”) within 3 days of the receipt of Goods. If written notice is not given pursuant to this clause 4.2, then PIC reserves the right not to credit Customer for the Damaged Goods.
5. PIC WARRANTIES
5.1 Subject to clause 5.2, PIC warrants that:
5.1.1 all gilts supplied by PIC will be fit for breeding at 30 weeks of age, after proper isolation and acclimatisation;
5.1.2 all natural service Boars supplied by PIC will be fit for breeding at 30 weeks of age, after proper isolation and acclimatisation;
5.1.3 all AI Boars supplied by PIC:
5.1.3.1 will be fit for breeding at 10 months of age, after proper isolation and acclimatisation; and
5.1.3.2 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;
5.1.4 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.
5.2 The warranty under clause 5.1.3 is only valid to the extent that AI Boars are kept at a facility exclusively housing animals owned by Customer which have been purchased from PIC, and/or their Progeny.
5.3 In-pig gilts may be requested by Customer and supplied by PIC, in which case:
5.3.1 PIC does not warrant:
5.3.1.1 that any gilts are in-pig; nor
5.3.1.2 any resultant litter size;
5.4 PIC will not be liable for any breach of warranty under this clause 5 unless Customer complies with clause 8.
5.5 All other warranties are, to the extent permitted by law, excluded.
5.6 Except as otherwise set out in these Terms and Conditions, and to the extent permitted by law:
5.6.1 all Goods sold under these terms and conditions are sold “AS IS”;
5.6.2 all other warranties are, to the extent permitted by law, excluded including warranties as to:
5.6.3 merchantability, health, or fitness for a particular purpose of any Goods;
5.6.4 the genetic make-up of Goods, the performance of Goods, or the characteristics or performance of Progeny.
6. CUSTOMER OBLIGATIONS AND ACKNOWLEDGEMENTS
6.1 Customer must:
6.1.1 use the Goods, and any semen collected from AI Boars, only in Customer’s own Herds and on Customer’s own animals;
6.1.2 not use, sell or transfer Goods purchased from PIC, or any semen collected from AI Boars, for the production of pigs to be used by Customer or any other person or entity as breeding animals or for sale/supply as breeding animals, without PIC’s prior written approval;
6.1.3 not use, sell or transfer Progeny, except for slaughter;
6.1.4 not use natural service Boars purchased from PIC for artificial insemination.
6.2 Customer:
6.2.1 warrants to PIC that it is experienced in pig breeding;
6.2.2 acknowledges that:
6.2.2.1 it is aware that organisms which cause pig diseases (called pathogens) are present in virtually every pig herd, semen and porcine material;
6.2.2.2 new or different pathogens or diseases may arise at any time;
6.2.2.3 the outbreak of diseases is caused by many factors in addition to the presence of pathogens within a pig, pig herd, or semen;
6.2.2.4 PIC does not guarantee the absence of any pathogens or disease in Goods and that pathogens or diseases may be present at time of sale or supply or may appear later.
7. ISOLATION AND ACCLIMATISATION OF ANIMALS
7.1 Customer:
7.1.1 must completely isolate all newly delivered pigs in a clean facility, physically separate from other pigs for at least 6 weeks and must follow the recommendations of a licensed veterinarian for isolation and for release of animals after the isolation period;
7.1.2 must not commence acclimatisation procedures for at least 6 weeks after delivery;
7.1.3 should acclimatise animals in a separate facility alongside existing stock for 30 days after isolation and should follow the recommendations of a licensed veterinarian for the release of animals from acclimatisation.
6.1.4 not use natural service Boars purchased from PIC for artificial insemination.
7.2 Customer acknowledges that it is its responsibility to:
7.2.1 test animals, at Customer’s expense, for pathogens or disease while animals are in isolation; and
7.2.2 engage an independent veterinarian to interpret test results and make recommendations for the release of the animals from isolation.
8. REPLACEMENTS, CREDITS AND PROCEDURES
8.1 If Customer has a complaint about any pig being incapable of breeding:
8.1.1 Customer must write to PIC after delivery of the pig concerned, stating delivery date of the pig, invoice number, the pig’s tag and/or ear tattoo number and full particulars of the nature of the complaint.
8.1.2 PIC will then:
8.1.2.1 send a representative to determine whether the pig is incapable of breeding and was so at the time of delivery; and/or
8.1.2.2 request a certificate from Customer’s veterinarian to state whether the pig is incapable of breeding and was so at the time of delivery. Such certificate will be referred to PIC’s veterinarian.
8.1.3 If the pig concerned is then considered by PIC to have been incapable of breeding at the time of delivery PIC will issue Customer written notice 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 replace the pig at its cost.
8.1.4 If the pig dies or is slaughtered before Customer has made a complaint under this clause 8, and a post-mortem carried out by a PIC appointed veterinarian reveals a defect rendering the pig incapable of breeding at time of delivery, PIC will replace the pig at its cost.
8.2 In the event of a complaint about Liquid Genes, Customer must notify PIC in writing no later than 30 days after delivery of the relevant Liquid Genes stating delivery date, invoice number, batch number and the exact nature of the complaint. If the Liquid Genes do not meet the warranty at clause 5.1.4 then PIC will issue a credit for the cost of the Liquid Genes.
8.3 In the event of a complaint based on the presence of economically significant infectious agents in animals, if:
8.3.1 the isolation procedures set out in clause 7 have been followed: and
8.3.2 Customer’s veterinarian provides PIC with evidence satisfactory to PIC of the existence of the agent; and
8.3.3 PIC receives from Customer written notice as required by this clause 8 before the animals carrying the agent are removed from isolation, then PIC will replace the animal.
8.4 In the event of a complaint based on incapacity to perform as an AI Boar, PIC reserves the right to require additional training and testing before replacing an AI Boar, and will not authorise slaughter of or replace such an AI Boar unless it has determined that the AI Boar is untrainable.
8.5 PIC will replace that AI Boar only if the complaint is received within:
8.5.1 30 days after delivery:
8.5.1.1 for complaints based on structural soundness other than incapacity to perform as an AI Boar; or
8.5.1.2 for complaints regarding Liquid Genes;
8.5.2 60 days after delivery for complaints based on incapacity to perform as an AI Boar;
8.5.3 150 days after delivery for complaints regarding gilts and natural service Boars that do not relate to structural soundness.
8.6 PIC will replace animals or issue credits, as the case may be, only if the complaint procedures in this clause 8 are followed.
8.7 In the case of credit notes, if Customer does not owe PIC for any other Goods or on any other account, the amount of the relevant credit note will be paid to Customer.
8.8 Customer acknowledges:
8.8.1 that the remedies set out in this clause 8 are the exclusive remedy against PIC for any claim arising out of the purchase of Goods from PIC by Customer;
8.8.2 that all other remedies, whether under statute, regulation, contract, tort, warranty, negligence, or any other legal theory of any nature, are expressly waived by Customer; and
8.8.3 that it is aware of the risks of pig production and that this waiver is not unreasonable nor unconscionable
9. DESCRIPTIONS
Subject to clause 5, PIC is not liable for any loss or damage caused directly or indirectly by any inaccuracy in any description of the Goods sold to Customer.
10. PAYMENT
10.1 Payment for Goods shall be made by Customer within 30 days of the date of invoice.
10.2 If the Goods are delivered to Customer over a period of time or on separate occasions, PIC may issue separate invoices in respect of each delivery, and the respective payments must be made within 30 days of the date of the relevant invoice.
10.3 A late payment service charge of 1.5% per month may be added to any amount unpaid after 30 days of the due date. PIC may withhold future deliveries if Customer fails to pay the total price of any delivery due and payable.
10.4 Title to Goods remains with PIC until such time as those Goods have been paid in full.
10.5 Customer irrevocably authorises PIC, its employees and agents, without the necessity of giving any notice, to enter all premises at which PIC reasonably believes the Goods to be located, to inspect, remove or repossess any Goods supplied by PIC and not paid for by Customer. PIC will not be liable for costs, damage or expenses or any other monies or losses suffered by Customer as a result of such action. Customer also indemnifies and keeps indemnified PIC against any costs or expenses incurred in locating, inspecting, removing or repossessing the Goods, and against any liability to any third party suffered or incurred by PIC as a result of such actions.
11. LIMITATION OF LIABILITY
11.1 Where a right or remedy which is not capable of exclusion, modification or restriction by law is conferred on Customer, and that law allows PIC to limit its liability in relation to that right or remedy, it shall be a term of this agreement that the liability of PIC is limited to the maximum extent of limitation permitted in accordance with that law.
11.2 Any liability of PIC for loss or damage due to:
11.2.1 economically significant infectious agents, whether transmitted by or through Liquid Genes or otherwise, or
11.2.2 advice and information given by PIC, whether oral or written, or
11.2.3 PIC’s breach of these conditions, or
11.2.4 any other cause in respect of any Goods, will be limited to the replacement or credit procedure, as applicable, in the manner provided in clause 8 or, in the event that no further Goods are purchased by Customer, a refund of the invoiced cost of the Goods in question, less slaughter value (if applicable).
11.3 PIC has no liability for loss or damage 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.
11.4 PIC is not liable for incidental or consequential loss or damage, including veterinarian’s fees, lost profits, loss of anticipated savings, loss of reputation or other incidental or consequential damages of any nature, except that nothing in these conditions excludes or limits PIC’s liability in respect of death or personal injury of a person caused by PIC’s negligence.
11.5 Any claim, action or litigation, alleged to arise out of the purchase of Goods from PIC by Customer, must be brought not later than 1 year after delivery failing which Customer waives the rights to bring such claim, action or litigation will lapse.
12. DEFAULT
12.1 The Customer will be in default if:
12.1.1 the Customer breaches these Terms and Conditions;
12.1.2 payment for the Goods has not been received by PIC by the date for payment
12.1.3 the Customer becomes insolvent or unable to pay the Customer’s debts as and when they are due and payable;
12.1.4 the Customer being an individual, commits an act of bankruptcy or becomes an insolvent under administration;
12.1.5 the Customer being a body corporate becomes an externally-administered body corporate or any proceedings are filed or steps taken that may result in the Customer becoming an externally-administered body corporate; and
12.1.6 PIC forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.
12.2 If the Customer defaults, PIC may do one or more of the following:
12.2.1 without notice to the Customer, make all monies owning by the Customer to PIC on any account immediately due and payable;
12.2.2 treat the whole of the Contract and any other contract with the Customer as terminated and sue for breach of contract;
12.2.3 refuse to supply or deliver any Goods to the Customer;
12.2.4 repossess or claim repossession of any Goods in the Customer’s possession where title has not passed to the Customer;
13. FORCE MAJEURE
PIC is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of any circumstance not directly within PIC’s control including; acts of God, natural catastrophises, acts or threats of terrorism, war or hostilities, epidemic pandemic or quarantine, governmental acts or omissions, industrial action, breakdown of communication facilities, internet or service providers, failure of PIC’s machinery or a failure of a supplier or common carrier to PIC.
14. WAIVER
PIC waives a right under these terms only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
15. SEVERANCE
If a provision of these terms would, but for this clause 15, be unenforceable:
(a) the provision must be read down to the extent necessary to avoid that result; and
(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Terms and Conditions.
16. VARIATION
PIC may vary or replace these Terms and Conditions from time to time by providing written notice to the Customer.
17. COSTS
The Customer must pay all of PIC’s costs and expenses in connection with the Terms and Conditions including legal expenses (on an indemnity basis), stamp duty and costs incurred in the recovery of monies owing by the Customer to PIC or in otherwise enforcing PIC’s rights against the Customer under the Terms and Conditions.
18. APPLICABLE LAW
This document is governed by the laws of Queensland and the courts of Queensland have exclusive jurisdiction in connection with this document.
19. APPLICABLE LAW
PIC may assign or novate its interest in any Contract to any person without consent of the Customer.