Terms and conditions of sale and delivery

Group Terms of Sale and Delivery

1. Application
   • These General Terms and Conditions of Sale (“GTCS”) apply to all contracts of sale of products (hereinafter “Products”) between VIKINGGENETICS F.M.B.A. (together with its affiliates, successors, and assigns "VIKINGGENETICS") and the customer (“Customer”). VIKINGGENETICS and Customer are sometimes referred to herein individually as a “Party” and together the “Parties”.
   • No departure from these GTCS shall be binding unless agreed in writing between VIKINGGENETICS and the Customer.
   • VIKINGGENETICS shall be entitled to alter these GTCS upon 14 calendar days’ written notice effective for all orders that VIKINGGENETICS receives after the expiration of the notice period. However, VIKINGGENETICS may alter agreed payment terms and credit limits at any time and for any reason without notice.

2. Quotations, orders, and order Acknowledgements
   • Only a quotation in writing by email from VIKINGGENETICS (“Quotation”) is binding on VIKINGGENETICS. Quotations are open for acceptance in writing by email to VIKINGGENETICS by the Customer for 15 business days from the date of the Quotation unless otherwise stated in the Quotation.
   • Any order(s) placed by the Customer and any acceptance(s) of Quotation(s) by the Customer shall bind VIKINGGENETICS, provided the order(s) or acceptance(s) of Quotation(s) was/were placed in writing by email to VIKINGGENETICS or, in case of acceptance(s) of Quotation(s), by return-mail, and provided the order(s) or acceptance(s) of Quotation(s) was/were confirmed in writing by VIKINGGENETICS within 15 business days from the date of receipt by VIKINGGENETICS of the order(s) or acceptance(s) of Quotation(s) (“Order Acknowledgement”).
   • If the terms and conditions related to delivery time, quantity, price, payment terms, delivery clause, delivery by instalments or other matters stated in VIKINGGENETICS’s Order Acknowledgement vary from the Customer’s order(s) or acceptance(s) of Quotation(s) and the Customer wants to reject these variations, the Customer must notify VIKINGGENETICS to that effect within 5 business days of the date of receipt of the Order Acknowledgement, failing which the Customer shall be deemed to have accepted the terms and conditions set out in the Order Acknowledgement, which shall constitute a binding commitment between the Parties. 

3. Transfer of risks 
   • Absent any delivery clause in the Order Acknowledgement to the contrary, delivery shall be deemed to have occurred ex works VIKINGGENETICS, Randers, Denmark. The Customer shall be ready for and accept delivery at the delivery date stated in the Order Acknowledgement or other communication from VIKINGGENETICS, failing which delivery is deemed to have occurred at the delivery date, stated in the Order Acknowledgement or other communication. Notwithstanding any agreed delivery clause, VIKINGGENETICS shall be free to select the carrier and mode of transportation.
   • When the Products arrive, the Customer must, in order, to get the Products released by the carrier, sign the accompanying delivery note. If any Products are visibly damaged, the Customer must give details thereof on the delivery note and must file a claim with the carrier and with VIKINGGENETICS in writing via email to VIKINGGENETICS within 3 business days, failing which the Customer shall be deemed to have waived any rights which the Customer might have in respect of the damaged Products.
   • The Customer must thoroughly examine all Products immediately upon delivery for the purpose of ascertaining whether the Products are defect or inconsistent with the data in the Order Acknowledgement (the “Examination”). The Customer shall be deemed to have accepted the Products in respect of inconsistency with the data in the Order Acknowledgement, which the Customer discovered or ought to have discovered during the Examination, if the Customer has not notified VIKINGGENETICS to the contrary in writing via email within 5 business days after the delivery time as stated in the Order Acknowledgement.

4. Delivery delay
   • Should VIKINGGENETICS not be able to deliver by the delivery time as stated in the Order Acknowledgement or other communication from VIKINGGENETICS, VIKINGGENETICS shall as soon as possible notify the Customer to that effect and at the same time state when delivery is expected to take place. If delivery is expected to take place more than, or has not taken place within, 14 business days after the delivery time as stated in the Order Acknowledgement, and the delay is caused by circumstances for which VIKINGGENETICS is responsible, the Customer shall be entitled to reject the Products by notifying VIKINGGENETICS to that effect within 3 business days after receipt of VIKINGGENETICS’s notification or the expiration of the 14 business days, whichever comes first, failing which notification by the Customer, the Customer shall be deemed to have waived the right to reject the Products. Except as stated in this Clause 4, the Customer is not entitled to raise any other claims in the event of delayed delivery, whether claims for damages based on negligent acts/omissions or otherwise.

5. Warranty
   • VIKINGGENETICS warrants that each Product conforms to the description on the individual straw or ampule in which it is packaged. All Products sold by VIKINGGENETICS are sold "AS IS".
   • VIKINGGENETICS specifically disclaims any warranty of (a) the genetic make-up of the Product; (b) the performance of the Product, or the characteristics or performance of the offspring of the Product; and (c) the absence of pathogens from the Product.
   • Where any valid warranty claim is notified to VIKINGGENETICS in accordance with the terms of Clause 5 and approved by VIKINGGENETICS in writing (which approval shall not be unreasonably withheld), VIKINGGENETICS shall fulfil its warranty obligations by refunding to Customer the net purchase price paid by Customer for the defective Products less reasonable depreciation of the value due to use or age, subject to the Customer assigning to VIKINGGENETICS all property rights to the defective Products.
   • The warranties contained herein shall not extend to any Products which have been damaged or rendered defective (a) as a result of wilful or accidental damage, negligence, misuse or abuse; (b) due to water or moisture, dust, dirt, or other external causes; (c)  by the connection or integration of other goods not approved by VIKINGGENETICS; (d) by modification, repair or service by anyone other than VIKINGGENETICS; (e) due to procedures, deviating from procedures specified by VIKINGGENETICS; or (f) due to failure to store, test, maintain, operate or use Products in a safe and reasonable manner and in accordance with VIKINGGENETICS’s instructions. 
   • None of the warranties contained herein shall apply unless the total purchase price for the defective Products has been paid by the due date for payment.
   • Customer shall have no other remedies in connection with defective Products than the rights granted pursuant to Clauses 5.3-5.5. Except as set forth in the express warranties contained herein, VIKINGGENETICS makes no conditions, warranties, representations, express or implied, in fact or in law, including, but not limited to, any warranties of satisfactory quality, merchantability or fitness for a particular purpose or any warranties arising out of usage or trade, all of which are expressly, excluded to the fullest extent permissible by applicable law.
   • The warranties contained herein apply only to the original purchaser and are not assignable or transferable to any subsequent purchaser or end-user.
   • To the extent not contrary to applicable mandatory law, VIKINGGENETICS shall only be liable for damage to property and for personal injuries caused as a consequence of defects in the Products delivered (Product Liability) to the extent that it is documented that such defect arose due to VIKINGGENETICS’s default or negligent errors or omissions and could not have been prevented by the Customers inspection.

6. Return of Goods. Cancellation of orders
   • Products may not be returned to VIKINGGENETICS, unless VIKINGGENETICS has authorized the return in writing. Where VIKINGGENETICS has authorized the return of Products, the Customer shall follow the guidelines for returns issued by VIKINGGENETICS from time to time.
   • Any order(s) placed by the Customer and any acceptance(s) of Quotation(s) by the Customer are binding on the Customer and cannot be cancelled by the Customer unless VIKINGGENETICS agrees. VIKINGGENETICS therefore retains the right to charge the Customer in full for any and all order(s) placed and for any and all acceptance(s) of Quotation(s). 

7. Price
   • Unless otherwise stated in VIKINGGENETICS’s Order Acknowledgement, all purchase prices exclude any sales, use, excise, value added, or other taxes or duties imposed by any governmental authority. The rate of any taxes or duties will be that applying at the time of invoicing.

8. Payment Terms. Payment delay
   • The purchase price as specified in VIKINGGENETICS’s Order Acknowledgement is payable according to the payment terms specified in the Order Acknowledgement. In the absence of payment terms in the Order Acknowledgement or as otherwise agreed, delivery will only take place against simultaneous cash payment of the purchase price.
   • Payment Terms:
     • Pre-payment is used for new customer before delivery.
     • 30 days from the date of invoicing the goods.
   • In the event, that the Customer should remain in arrears with payments to VIKINGGENETICS for any reason for 10 business days or more, VIKINGGENETICS shall be entitled to:
     • Terminate the Order Acknowledgement and/or any other contracts of sale and demand immediate return of all unpaid Products, delivered to the Customer, at the Customer’s expense.
     • Suspend delivery of the Order Acknowledgement and/or any other contracts of sale for future delivery.
     • Keep any Customer property in VIKINGGENETICS’s possession as a lien.
     • Claim interest at the rate of 2 % per month or any part thereof, as from the due date and until payment is made.
     • Sell the Products to a third party and claim from the Customer damages for any loss suffered.
   • VIKINGGENETICS may use all cash received from the Customer towards payment of any part of any debt owing by the Customer at VIKINGGENETICS’s sole discretion irrespective of any instructions to the contrary by the Customer.

9. Intellectual property rights infringements
   • To the best of VIKINGGENETICS’s knowledge, Products delivered by VIKINGGENETICS to the Customer do not infringe any third-party intellectual property rights.

However, VIKINGGENETICS does not make any warranty to that effect. Moreover, VIKINGGENETICS shall have no liability for any claim of infringement which is based on the use of the Products other than as authorised by VIKINGGENETICS and in a manner for which they were designed. In the event that Products or any part(s) thereof are held by a court of competent jurisdiction, not subject to appeal, to infringe a third party’s intellectual property right, proprietary right or contractual right, VIKINGGENETICS shall in its sole discretion (a) procure for the Customer and the Customers‘ customers the right to continue to use the Products; (b) replace the Products with non-infringing Products, subject to the Customer assigning all property rights to such Products to VIKINGGENETICS; (c) modify the Products, or (d) recall the Goods. If VIKINGGENETICS decides to recall the Products, VIKINGGENETICS shall, if the Products were delivered to the Customer within the immediately preceding one year period, refund the net purchase price paid by Customer for the infringing Products less reasonable depreciation of the value due to use or age, subject to the Customer assigning all property rights to such Products to VIKINGGENETICS. 

• The above constitutes VIKINGGENETICS’s maximum liability in respect of Clause 9 herein, and the Customer shall limit his liability towards his customers accordingly.

10. Limitation of liability, Venue, Choice of Law
    • In no event shall VIKINGGENETICS be liable in tort, contract or otherwise (including negligence) to compensate the Customer for any business interruption, loss of (anticipated) profits, revenue, business, contracts or (anticipated) savings, costs of procurement of substitute Products or any other special, indirect, or consequential loss or any punitive damages. 
    • VIKINGGENETICS’s total liability under any cause of action shall not exceed the net purchase price paid by Customer for the Products giving rise to the liability. 
    • In the event that VIKINGGENETICS incurs liability towards a third party with respect to Products delivered or services provided to the Customer, including in respect of Product Liability and intellectual property rights infringement, the Customer is obliged to indemnify VIKINGGENETICS to the extent that VIKINGGENETICS’s liability is limited under the provisions stipulated above.
    • The GTCS and all contracts of sale of Products, including but not limited to, any and all Order Acknowledgement, between VIKINGGENETICS and the Customer shall be exclusively governed by and construed in accordance with the laws of the Kingdom of Denmark without application of that country's conflict of law principles (no renvoi). The Parties submit to the exclusive jurisdiction of Danish courts. If a third-party file a claim against one of the Parties for damages on Product Liability or intellectual property rights infringements, this Party shall immediately inform the other Party thereof. The Parties are mutually obliged to let themselves be summoned to appear before a court of justice / arbitration that hears such claim for damages. The mutual relationship between VIKINGGENETICS and the Customer shall however be resolved in accordance with the provisions of this Clause.

11. Regarding use of genetic material from VIKINGGENETICS
    • These terms and conditions govern the purchase, sale and use of all bovine related products and services offered by VIKINGGENETICS or its affiliates (hereafter called VIKINGGENETICS) including and without limitation, bovines, semen, and embryos (hereafter called “VIKINGGENETICS Genetic Material”). Any license to use the genetic materials contained in or derived from the “VIKINGGENETICS Genetic Material” (in whole or in part) or its progeny, including any DNA, RNA, protein or other molecular or hereditary materials is covered by below stated restrictions in use.

12. Restriction related to “VIKINGGENETICS Genetic Material”.
    • The purchase of “VIKINGGENETICS Genetic Material” is subject to a non-exclusive, non-transferable, non-sublicensable, license to use the Genetic Materials and is subject to the following restrictions:
      • “VIKINGGENETICS Genetic Material” may only be used in animals owned or leased by the purchaser of the “VIKINGGENETICS Genetic Material” with the intent to produce offspring for use in a commercial beef or dairy operation. Sexed semen may be used solely for single artificial insemination of a single bovine, with the intent to produce a single offspring.
      • The Customer may not sell or transfer “VIKINGGENETICS Genetic Material” to any third-party or analyse “VIKINGGENETICS Genetic Material” for the benefit of any third-party, without prior written consent of VIKINGGENETICS.
      • “VIKINGGENETICS Genetic Material” identified by VIKINGGENETICS, on its website as ”VIKINGGENETICS Beef” may only be used to create a terminal beef x dairy crossbred offspring and the purchaser is prohibited to sell, lease or otherwise transfer to any third-party any male or female offspring derived from “Viking Beef” except to slaughter or into any part of the beef supply chain (e.g. sale to a Feed lot, Calf rearer, or similar, without prior written consent of VIKINGGENETICS.
      • All rights in the “VIKINGGENETICS Genetic Material” not expressly granted hereunder are reserved by VIKINGGENETICS.
      • All other use of the “VIKINGGENETICS Genetic Material” are strictly prohibited without prior written consent of VIKINGGENETICS, including (without limitation) genotyping, sequencing, cloning, genome editing, genetic analysis, or manipulation, use in public or private research programs, production of animals for the purpose of collecting and selling their semen, embryos, or for any other research or development use.

13. Penalty related to violation of above sales clauses:
    • Should the customer in any way violate the sales clauses stipulated by VIKINGGENETICS, the customer incurs a penalty related to the violation. The penalties below mentioned do not limit nor prevent VIKINGGENETICS from demanding compensation for the loss that VIKINGGENETICS incurred by the customer breach of the VIKINGGENETICS sales terms / sales clauses.

The following penalties are minimum rates per violation.

Sale of semen after VIKINGGENETICS Genetic Material 1.000.000 DKK (one million DKK)

Sale of embryo (per embryo) after VIKINGGENETICS Genetic Material 250.000 DKK

Sale of female or male animals (per animal) in violation to sales clause 250.000 DKK

14. General
    • The invalidity, unenforceability or illegality of any term, condition, or stipulation in the GTCS shall not affect the validity, enforceability or legality of the remaining terms, conditions, and stipulations of the GTCS. 
    • Except as provided herein, any required or permitted notices hereunder must be given in writing at the registered address of each Party, or to such other address as either Party may notify to the other Party by written notice in the manner contemplated herein, by one of the following methods: electronic mail, hand delivery, registered mail. 
    • Non-performance of either Party shall be excused to the extent that performance is rendered impossible by strike, lock-out, fire, severe weather, flood, earthquake, terrorism, war, acts of God, governmental acts, failure of suppliers or carriers for any reason or any other reasons beyond the reasonable control of the non-performing party.