This Agreement, made and entered into by B & D Genetics LLC., an Arkansas corporation engaged in custom semen collection/storage services, and the undersigned OWNER (hereinafter referred to individually or collectively as “OWNER”) who desires to store and/or market frozen semen and/or embryos in liquid nitrogen container(s) owned specifically by B & D Genetics LLC. and pay for these services as per terms, rates, and fees listed below. This agreement is specifically prepared for the purpose of clarification of duties and responsibilities of the OWNER of the inventory stored.
SERVICES AND FEES: Owner and B & D Genetics LLC.., have discussed the various semen collection programs available, including the associated fees and charges, and both parties will be bound by the fee schedule in effect as of the date of this agreement, as witnessed by the signing below. A copy of the current fee schedule for services and service policy are attached to this Agreement and incorporated by reference. Terms of payment are net due upon receipt of invoice.
In the event of multiple ownership of Sire(s), an owner must be declared to conduct all business with B & D Genetics LLC., as only one party will be invoiced during the term of this contract. Proof of designation of an agent shall be provided by the Owner.
B & D Genetics LLC., shall collect, process, freeze, store, and ship semen according to the attached fee schedule. B & D Genetics LLC., reserves the right to alter its fee schedule and shall notify the Owner at least 30 days in advance of the effective date. Unless the Owner removes the Sire(s) and/or all semen stored prior to the effective date, the new fee schedule shall apply.
As provided for in this Agreement, B & D Genetics LLC. will use its best efforts to collect, process, freeze, store and ship when applicable, semen of the highest possible quality; however the services to be provided hereunder by B & D Genetics LLC., shall be provided in accordance with accepted animal husbandry practices.
HEALTH STATUS TESTING: Owner shall provide to B & D Genetics LLC., a photocopy of registration papers for all Donor dam(s), evidencing ownership of all such animal(s). In the event the Donor(s) are the subject of a lease arrangement with a third party, Owner shall provide to B & D Genetics LLC., a copy of the registration papers for the subject Donor, and a copy of the lease agreement from the owner of the animal naming Owner as Lessee.
Owner shall provide to B & D Genetics LLC., before collection, a health certificate signed by an accredited veterinarian for a clean bill of health. In lieu thereof, B & D Genetics LLC., has the right to secure such tests and bill the Owner for those charges. Any other veterinarian expenses incurred will be billed according to the price schedule and shall be paid promptly by owner.
WARRANTIES: Owner understands and acknowledges that there are multiple risks inherent in livestock production, including the feeding and boarding of livestock, processing, freezing and storage of semen, in the transportation of livestock and semen, and the techniques of semen collection, processing, and freezing. Owner also recognizes the possible risk of complications related to semen collection procedures. Under no circumstances shall B & D Genetics LLC. be liable for direct or special damages, nor any indirect or consequential damages, or any other damage or loss resulting from the use, handling, removal, transfer and storage of semen, the care, handling, or collection of the Sire(s) sought to be collected under the terms of this Agreement, the health status testing, or the use and/or disclosure of test results or related information. B & D Genetics LLC. makes no guarantee as to the fertility of Sire(s) sought to be collected hereunder, nor of the fertilizing capacity of any semen collected thereby. Owner agrees to, and does hereby, waive any claim against B & D Genetics LLC. and agrees to hold B & D Genetics LLC. harmless against any liability for injury, illness, or death of animals or persons from causes related to the collection of the Sire(s) covered by this Agreement, or loss or damage to semen.
The owner acknowledges that the owner has had a chance to inspect the product (genetic material/procedure) and that it is in good and acceptable condition and that B & D Genetics LLC has made no warranties or representations regarding the same. The owner acknowledges receipt of and accepts the product “AS IS” and “WITH ALL FAULTS.” There are no warranties for the product(s) which extend beyond the description on the face hereof. B & D Genetics LLC makes NO WARRANTIES, EXPRESS OR IMPLIES, regarding the condition of the product and it shall not convey or otherwise be performed with any express nor implied warranties, e.g. merchantability, title, or fitness for a particular purpose.
NO WARRANTY OR FITNESS FOR A PARTICULAR PURPOSE, NOR OF MERCHANT ABILITY OF SEMEN, EMBRYOS, RECIPIENTS, OR SERVICES, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY, SHALL EXIST EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT.
WAIVER, INDEMNIFICATION, AND COVENANT NOT TO SUE: The owner hereby agrees to execute the Waiver, Indemnification, and Covenant Not to Sue attached here to as Exhibit A and incorporated as if set forth word for word herein. The owner expressly agrees to, among other things, waive, indemnify, and not sue B & D Genetics LLC for: B & D Genetics LLC negligence, owner’s negligence, the condition of the goods or items contemplated in this agreement, the condition of any animals associated with the transaction or in any way incident thereto or in contact therewith, criminal acts, and acts of god.
INSURANCE: Owner hereby agrees to maintain any and all insurance as Owner may deem appropriate on resident Sire(s) and any frozen semen stored on, or shipped to or from, B & D Genetics LLC. premises. Owner understands that insurance may or may not be available for shipping of semen by common carrier, and expressly assumes the risk of loss therefore.
Owner further agrees that B & D Genetics LLC. will not provide any insurance coverage on any of Owner’s property and that B & D Genetics LLC. is released from any and all liability for risk of loss for any reason including but not limited to tank failure, death, acts of God, injuries or damages resulting from care and handling, and natural disasters.
It is further agreed that Owner will not subrogate any claim or damages against B & D Genetics LLC.. Owner further agrees to, and does hereby, waive any claim or demand against B & D Genetics LLC., and agrees to hold B & D Genetics LLC. harmless from and against any and all liability and/or damages for injury, illness, or death of animals or persons while said Sire(s) are at the facilities of B & D Genetics LLC. and after they have left the facilities of B & D Genetics LLC.. Updated 3/28/18
TRANSPORTATION: Owner shall be responsible for the transportation of Sire(s) and/or semen both to and from B & D Genetics LLC. facilities. B & D Genetics LLC. shall ship semen from designated animals upon authorization of Owner subject to the regulations of the state or country of destination. Expenses of the shipment, title, and risk of loss shall at all times be in the Owner. All shipments shall be made freight collect from B & D Genetics LLC. and received freight prepaid to B & D Genetics LLC.. If other arrangements are to be made, Owner is responsible to establish in writing the specific requirements of transfer, which must be approved by B & D Genetics LLC.
LIENS: The owner’s performance of this agreement shall be secured by any animal(s) upon, by, or through which any goods or services are transacted or performed by B & D Genetics LLC or B & D Genetics LLC’s agents, representatives, or associates, as well as any progeny of such animal(s) including, but not limited to, the following personal property such as any animals or any genetic material (embryos, semen, offspring, recipients) housed at B & D Genetics LLC.
Further, the owner hereby acknowledges that this Agreement shall act as a security agreement and B & D Genetics LLC shall be entitled to draft and file any and all documents necessary to secure the lien(s) contemplated herein including, but not limited to, a UCC filing with the Arkansas Secretary of State.
FORCE MAJEURE: Neither party hereto shall be deemed to be in default or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service resulting directly or indirectly from strikes, hurricanes, tornadoes, derailments, acts of civil or military authority, civil disturbance, war, riots, or acts of God which were beyond the control of such nonperforming party.
AUTHORITY: Each person executing this Agreement on behalf of either party hereby
represents that all necessary and appropriate actions have been taken to obtain authorization for execution of this Agreement on behalf of the respective parties and the party so executing has full power and authority to execute and deliver the Agreement and fulfill its obligations and responsibilities under this Agreement.
GOVERNING LAW: This Agreement shall be governed by the laws of the State of Arkansas. The parties agree and submit to the jurisdiction of the courts of the State of Arkansas and any federal or state court located in Jonesboro, Arkansas in connection with any actions or proceedings arising out of or in relation to this Agreement. Further, the parties agree that venue is proper in any federal or state court located in Jonesboro, Arkansas. In any lawsuit brought to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
BINDING EFFECT: This Agreement shall be binding upon the parties hereto and upon their successors and assigns.
TERMS OF AGREEMENT: This Agreement shall remain in effect for as long as B and D Genetics LLC has possession of the Sire(s) sought to be collected hereunder, or for so long as B & D Genetics LLC. maintains semen in storage, and/or for as long as charges remain unpaid for which B & D Genetics LLC. has provided services.
EXHIBIT A : THE OWNER’S WAIVER, INDEMNIFICATION OF AND COVENANT
THE OWNER’S WAIVER, INDEMNIFICATION OF AND COVENANT NOT TO SUE B & D GENETICS LLC IN CONNECTION WITH AND AS CONSIDERATION FOR ENTERING THE AGREEMENT, THE OWNER SHALL INDEMNIFY AND HOLD B & D GENETICS LLC FREE AND HARMLESS FROM AND, FURTHER, THE OWNER SHALL NOT SUE B & D GENETICS LLC FOR, ANY AND ALL CLAIMS, LIABILITY, LOSS, DAMAGE, OR EXPENSE RESULTING FROM ANY GOODS OR SERVICES EXCHANGED OR PERFORMED AS A RESULT OF, INCIDENT TO, OR IN ANY WAY ASSOCIATED WITH THE AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY CLAIM, LIABILITY, LOSS, OR DAMAGE ARISING BY REASON OF:
(A) ANY INJURY TO PERSON OR PROPERTY AS A RESULT OF ANY GOODS OR SERVICES EXCHANGED OR PERFORMED OR IN ANY WAY CONNECTED WITH THE TRANSACTION CONTEMPLATED IN THE PARTIES’ AGREEMENT, INCLUDING ANY LIABILITY FOR INJURY TO THE PERSON OR PERSONAL PROPERTY OF OWNER OR OF ITS AGENTS, REPRESENTATIVES, OR GUESTS FOR ANY REASON INCLUDING, BUT NOT LIMITED TO, B & D GENETICS LLC’S NEGLIGENCE OR CARELESSNESS, FIRE, FLOOD, RAIN, HAIL, ICE, SNOW, SMOKE, STORM, TORNADO, LIGHTNING, DUST, WIND, INSECT, BUG, ANIMAL, POLLEN, MOLD, AIR QUALITY, ALLERGY, DISEASE, MEDICAL CONDITION, SUNLIGHT, EXPLOSION, INTERRUPTION OF UTILITY SERVICES, MALFUNCTION OR DEFECT OF UTILITY SERVICES, ANY ACT OF NATURE OR ACT OF GOD, ANY DEFECT IN OR ON THE PREMISES, MALFUNCTION OR DEFECT OF ANY MAN-MADE OBJECT, MALFUNCTION OR DEFECT OF ANY EQUIPMENT OR MEDICAL OR VETERINARY DEVICE, CAR ACCIDENT, THEFT, BURGLARY, ASSAULT, BATTERY, VANDALISM, OR ANY OTHER CRIME;
(B) ANY WORK PERFORMED OR GOODS OR MATERIALS FURNISHED BY OWNER OR AT THE REQUEST OF OWNER OR OWNER’S REPRESENTATIVES OR AGENTS;
(C) ANY FAILURE BY THE OWNER TO PERFORM ANY PROVISION OF THIS AGREEMENT OR TO COMPLY WITH ANY REQUIREMENT IMPOSED ON THE OWNER ON ANY REAL PROPERTY WHERE ANY OF B & D GENETIC LLC’S GOODS ARE TRANSACTED OR SERVICES PERFORMED,OR ON ANY PERSONAL PROPERTY TRANSACTED OR UPON WHICH ANY SERVICES ARE PERFORMED OR OTHERWISE ASSOCIATED WITH OR INCIDENT TO ANY PROPERTY TRANSACTED OR SERVICES PERFORMED, BY ANY DULY AUTHORIZED GOVERNMENTAL AGENCY OR POLITICAL SUBDIVISION;
(D) ANY FAILURE OR INABILITY BY OWNER TO PAY, AS THEY BECOME DUE, ANY OBLIGATIONS INCURRED BY OWNER
(E) THE CARELESSNESS, NEGLIGENCE, INTENTIONAL OR IMPROPER CONDUCT OF THE OWNER
