Terms and Conditions

1. Definitions and Interpretation

1.1 This agreement (the “Agreement”) is made up of (i) the Purchase Order, and (ii) the Terms and Conditions including the Schedules.

1.2 If there is any conflict or ambiguity between the terms of the documents listed in Section 1.1, a term contained in the higher list will have priority over one listed in a document lower in that list to the extent of the conflict.

1.3 Section, Schedule and paragraph headings in this Agreement are intended strictly for convenience and shall not affect the interpretation of this Agreement.

1.4 The defined terms shall have the meanings given in Schedule A.

1.5 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.6 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.7 A reference to writing or written includes emails.

2. Supply of Product Offering

2.1 Subject to the terms of this Agreement, the Company shall provide the Product Offering, as set out in the Purchase Order.

2.2 A licence to use the Application Plan shall be provided by the Affiliate under the EULA.

3. Price and Terms of Payment

3.1 The Buyer shall pay the Company the price quoted in the Purchase Order (the “Fees”) as set forth in the Purchase Order.

3.2 a) Transactional Taxes. The Fee and other prices are exclusive of sales, use, GST, VAT, excise, and other taxes, duties or charges of a similar nature imposed by any federal, state, provincial, or local government, or other taxing authority.  If any sales, use, GST, VAT, excise, and other taxes, duties or charges of a similar nature shall be chargeable, the Buyer shall pay, or upon receipt of invoice from the Company, shall settle these in addition to the sums otherwise payable, at the rate in force at the due time for payment or such other time as is stipulated under the relevant legislation; b) Income Taxes. The Company shall be liable for all income taxes imposed upon any payments made by the Buyer to the Company under this Agreement; c) Withholding Taxes. If applicable laws, rules or regulations require the withholding by the Buyer of such taxes, the Buyer shall make such required withholding payments and shall subtract the amount thereof from the amount due. The Buyer shall submit to the Company appropriate proof of payment of the withheld taxes as well as the official receipts promptly. The Buyer shall provide the Company reasonable assistance in order to allow the Company to obtain the benefit of any present or future treaty against double taxation which may apply to such payments and/or to obtain credits for such payment of withholding.

3.3 All payments due under this Agreement shall be made in the currency specified in the Purchase Order by such means as agreed upon by the Company and the Buyer, by no later than the last Business Day of the month following the date of an invoice issued by the Company in respect of those Goods and/or Services.

3.4 The Company may suspend performance of this Agreement if the Buyer’s account with the Company is past due, provided there is no genuine dispute as to whether any amount is due, or the Buyer otherwise is in material breach of this Agreement. The Company may also reject any future or pending purchase orders while the Buyer’s account is past due.

4. Delivery Shipping Charges and Taxes

4.1 Delivery of the Devices shall be DAP Incoterms® 2020. These delivery terms shall be construed in All delivery and completion dates are approximate and the Company shall not be responsible for any loss or damage of any kind resulting from any delay.

4.2 Delivery of the Application Plans shall be made to the Buyer by provision of an Activation Key, which following activation will associate the Application Plan to the Product Offering. Delivery shall be deemed to have been made, upon Installation.

5. Installation and Initial Training

5.1 The Company or an agent authorised by the Company will install the Product Offering (“Installation”). The Company or an agent will perform other services as requested by the Buyer from time to time and agreed to by the Company in writing, subject to the provisions of clause 8.5. The Company may decide from time to time to offer additional services to the Buyer for an additional fee in accordance with clause 8.5, which fee shall be invoiced separately, and such fee will be communicated to the Buyer at the time of offer.

5.2 The Devices will be inspected by the Company at installation, and the Company will repair or replace any Devices with Defects at no charge.

6. Buyer Responsibilities

6.1 The Buyer shall be responsible for, at its own cost, all pre-requisites notified to it by the Company in respect of the Product Offering including high-speed internet access at its premises in order to use the Product Offering, receive 24/7 cloud access and allow the Company and its Affiliates to perform continuous remote maintenance.

6.2 The Buyer shall provide the Company with all such assistance as the Company may reasonably request from time to time in order for the Company to perform its obligations under this Agreement.

6.3 The Buyer shall be responsible for all users accessing the Product Offering (the Buyer and them each being the “User”), including ensuring that such users shall use the Product Offering strictly in accordance with this Agreement.  Any use of the Product Offering by the Buyer or another User in breach of this Agreement, shall be deemed a material breach by the Buyer of this Agreement.

7. Warranty

7.1 Nothing in these Terms and Conditions is intended to negate or modify any right or remedy the Buyer may have under applicable laws. Subject to the terms of this Agreement, the Company warrants to the Buyer that each Device as delivered to the Buyer under this Agreement shall be free from Defects during the applicable Warranty Period (such warranty, the “Warranty”). For the avoidance of doubt, the Warranty only applies to Devices manufactured by the Company. Any Devices manufactured by a third-party vendor will be governed by the warranty provided from such third party vendor.

7.2 The Company shall not be liable for a breach of the Warranty if (i) the Defect arose because the Buyer or any person authorised by the Buyer failed to follow the Company’s instructions as to the storage, installation, commissioning, use, or maintenance of the Product Offering, (ii) the Devices have been serviced, altered, or repaired by anyone not certified by the Company to provide such service, or (iii) the Devices were damaged as a result of an accident, improper use, negligence, or modifications made to the Devices without the authorisation of the Company.

7.1 To make a claim under the Warranty, the Buyer shall (i) notify the Company of the suspected breach of the Warranty within the applicable Warranty Period, with such notice including all such information as may be requested by the Company in accordance with its warranty procedures from time to time,
(ii) at the Buyer’s cost, return the relevant Devices to the Company at such location as specified by the Company in accordance with its warranty procedures from time to time, and (iii) comply with the Company’s directions in relation to the storage, handling and transportation of the relevant Devices (including in respect of any disassembly and cleaning of the Devices).

7.3 The Buyer’s sole remedy and the Company’s sole liability for a breach of the Warranty, at the Company’s option, is to (i) repair or replace the malfunctioning Device(s) with a similar item at no charge, or (ii) refund the purchase price of the applicable Device, pro-rated for the duration left on the Warranty Period at the time the Company was notified of the Defect.

7.2 Other than the Warranty, any Product Offering support, maintenance and service provided by the Company to the Buyer shall be outside the scope of this Agreement and shall be provided at the Company’s then current rates.

8. Title and Risk

8.1 Title to the Devices purchased by the Buyer under the Purchase Order (excluding any Intellectual Property Rights), shall pass to the Buyer upon delivery.

8.2 Risk of loss and damage regarding such Devices shall pass to the Buyer upon delivery.

9. Intellectual Property

9.1 The Buyer may use the Product Offering only in accordance with and subject to the provisions of this Agreement.

9.2 The Buyer acknowledges the Company’s Affiliate retains exclusive right, title and interest in any and all Intellectual Property Rights in and to the Product Offering and Data (“Company Group IP”).

9.3 The Buyer acknowledges that it has no (and shall not acquire any) rights, title or interest to the Company Group IP, apart from the right to use such Company Group IP with regard to the Product Offering, as expressly stated in this Agreement.

10. Termination 

10.1 This Agreement shall commence on the Effective Date and shall continue until terminated as set forth herein.

10.2 Either party shall have the right to terminate this Agreement if the other party commits a material breach of this Agreement.

10.3 Either party shall have the right to terminate this Agreement if the other party is bankrupt, unable to pay its debts when due, or becomes insolvent, or is subject to an order or resolution for its liquidation, winding-up or dissolution (other than for the purpose of solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

10.4 Upon termination of this Agreement, the following provisions shall apply: (i) all outstanding amounts payable by the Buyer shall become immediately due and payable, and (ii) the Buyer’s entitlement to any license or any Company Group IP under this Agreement shall terminate and the Buyer shall discontinue all further use of the Product Offering.

10.5 The Agreement shall automatically terminate on the same terms on which the EULA is terminated.

10.6 Termination or expiry of this Agreement shall not affect the accrued rights and obligations of the parties as at the date or termination or expiry.

10.7 Sections 7.3, 9.2, 9.3, 10.4, 10.5, 10.6, 10.7, 11, 13, 14, 16 shall survive the termination or expiration of this Agreement.

11. Term and Termination. 

Subject to applicable laws, the Buyer shall indemnify and hold harmless, and at the Company’s option, defend the Company Group, together with each of the Company Group’s managers, successors, employees, agents, directors, officers, and stockholders (each, a “Company Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, settlements, judgments, awards, penalties, interest, fines, costs, fees and expenses of whatever kind, including reasonable attorneys’ fees, incurred by a Company Indemnitee arising out of or resulting from any demand, suit, action, investigation, allegation, complaint or any other proceeding, including those brought or asserted by a third party (including any governmental agency, entity or organisation) in connection with or otherwise related to, directly or indirectly (i) physical injury to or death of any person or damage to tangible property arising from any of the Buyer’s acts or omissions, (ii) the breach or the alleged breach of any of the Buyer’s representations, warranties, or obligations contained in this Agreement, and (iii) any information, data, reports, documents or materials supplied by the Buyer.Subject to applicable laws, the Buyer shall indemnify and hold harmless, and at the Company’s option, defend the Company Group, together with each of the Company Group’s managers, successors, employees, agents, directors, officers, and stockholders (each, a “Company Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, settlements, judgments, awards, penalties, interest, fines, costs, fees and expenses of whatever kind, including reasonable attorneys’ fees, incurred by a Company Indemnitee arising out of or resulting from any demand, suit, action, investigation, allegation, complaint or any other proceeding, including those brought or asserted by a third party (including any governmental agency, entity or organisation) in connection with or otherwise related to, directly or indirectly (i) physical injury to or death of any person or damage to tangible property arising from any of the Buyer’s acts or omissions, (ii) the breach or the alleged breach of any of the Buyer’s representations, warranties, or obligations contained in this Agreement, and (iii) any information, data, reports, documents or materials supplied by the Buyer.

12. Availability

The Company undertakes that it shall use its reasonable efforts to attempt to provide the access to the Product Offering 24 hours a day, 7 days a week.  However, there shall be occasions when access to the Product Offering shall be interrupted, including for security and maintenance purposes, upgrades and repairs, which the Buyer acknowledges that the aforementioned is a necessary function conducted by the Company, or as a result of failure of telecommunications links and equipment that are beyond the Company’s control.  To the extent permitted by applicable law, the Company shall bear neither responsibility nor liability for any loss of revenue or the User Data that may result therefrom. THE BUYER ACKNOWLEDGES AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE TO ACCESS THE PRODUCT OFFERING IS TO TERMINATE THIS AGREEMENT BY NOTICE TO THE COMPANY AS ESTABLISHED BY SECTION 10.2 OF THE TERMS AND CONDITIONS.  The Company may modify or discontinue, temporarily or permanently the Product Offering or any portion thereof, at any time in its sole discretion upon provision of a reasonable prior notice to the Buyer.  The Company has no obligation to store, maintain or provide the Buyer a copy of any content that the Buyer provides when using the Product Offering.  The Buyer shall be responsible for securing and maintaining its User Data

13. Limitation of Liability

13.1 Nothing in this Agreement will limit or exclude the Company’s liability for, (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), (ii) fraud or fraudulent misrepresentation, or (iii) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

13.2 Subject to Section 13.1, however notwithstanding anything in this Agreement, the Company shall not be liable (whether in contract, tort (including negligence) or otherwise) to the Buyer for any (i) indirect, special or consequential damages, or (ii) any loss or damage to business earnings, lost profits or goodwill and lost or damaged data or documentation arising out of or in connection with this Agreement.

13.3 Subject to Section 13.1 to the maximum extent permitted by law, the Company’s liability under or in connection with these Terms and Conditions, whether arising in contract, tort (including negligence) or otherwise shall be limited to the Fees paid to the Company by the Buyer under this Agreement during twelve (12) months preceding the first incident out of which the liability arose.

13.4 Unless otherwise expressly stated in this Agreement and subject to Section 13.1, (i) the Company makes no warranties, express or implied with respect to the Product Offering and other any products, services or related materials provided under this Agreement, including, the implied warranties of merchantability or fitness for a particular purpose, (ii) the Product Offering is and any products, services or related materials are provided by the Company on an “as is” and “as available” basis and the Buyer assumes all risk and liability associated with the performance, use, and results thereof.

14. Assignment

14.1 The Buyer shall not sell, assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Company.

14.2 The Company shall have the right to assign or otherwise transfer any of its rights or obligations under this Agreement to any of its Affiliates without the prior written consent of the Company.

15. Force Majeure

The Company shall not be liable for any default or delay if caused, directly or indirectly, by acts of God, the elements, labour disputes, accidents, pandemics, epidemics, any governmental action, prohibition or regulation, failure of any telecommunications network (including the internet), shortage or breakdown of or inability to obtain or non-arrival of any labour, material or product used in the manufacture of the Product Offering, failure of any party or third party to perform any contract with the Company or the Buyer relative to the Product Offering, or from any other cause beyond the Company’s control (collectively, the “Force Majeure Conditions”). If a Force Majeure Condition prevents, delays or otherwise interferes with the Company’s delivery or completion of the Product Offering which would cause the cost of the Product Offering to exceed the total purchase price, the Company shall be under no obligation to deliver the Product Offering unless the Buyer agrees to pay the additional costs incurred by the Company in connection with such Force Majeure Condition to complete delivery of the Product Offering.

16. Miscellaneous

16.1 Confidential Information. All non-public, confidential, or proprietary information of the Company and/or the Affiliate, including, specifications, documents, data, or business operations, disclosed by the Company and/or the Affiliate to the Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, whether or not identified as “confidential” in connection with this Agreement, is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorised in advance by the Company in writing or expressly provided for in this Agreement. Upon the Company’s request, the Buyer shall promptly return all documents and other materials received from the Company and/or the Affiliate. The Company Group shall be entitled to injunctive relief for any breach or threatened breach of this Section. This Section does not apply to information that the Buyer can demonstrate is (i) in the public domain, (ii) known to the Buyer at the time of disclosure, or (iii) rightfully obtained by the Buyer on a non-confidential basis from a third party.

16.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, legal representatives and assigns, including in the case of the Buyer, a successor or assignee to all or any substantial part of the business or business assets of the Buyer, no matter the manner or form of succession or assignment and irrespective of whether the successor or assignee has possession of all or any part of the Product Offering.

16.3 GOVERNING LAW AND JURISDICTION. THIS AGREEMENT AND ANY DISPUTE OR CLAIM (INCLUDING ANY NON-CONTRACTUAL DISPUTES OR CLAIMS) ARISING OUT OF OR IN CONNECTION WITH IT SHALL BE GOVERNED BY, INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCLUDING PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, WITHOUT REGARD TO CHOICE OR CONFLICT OF LAW PRINCIPLES. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE STATE OF NEW YORK FOR THE PURPOSE OF ANY DISPUTE OR CLAIM (INCLUDING ANY NON-CONTRACTUAL DISPUTES OR CLAIMS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE PARTIES WAIVE ALL OBJECTIONS TO VENUE AND THE EXERCISE OF PERSONAL JURISDICTION BY SUCH COURTS, AND AGREE TO ACCEPT SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED.

16.4 Notices. All notices which are required to be given under this Agreement, unless otherwise specified, shall be in writing and delivered to the address specified by you in the Purchase Order. Any such notice shall be delivered by email, by hand or by certified first class mail, postage prepaid, return receipt requested, and shall be deemed given upon a business date emailed, hand delivered or three (3) days after mailing.

16.5 Severability. The invalidity or unenforceability of any of the provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. If any provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or unenforceable, it shall be construed to make it valid and enforceable by limiting it as to time, subject or geographical scope as required under applicable law.

16.6 No Waiver. All rights, privileges and remedies afforded the Company shall be deemed cumulative and not exclusive, and the exercise of any one of such remedies shall not be deemed a waiver of any other right, privilege or remedy. No term or condition of this Agreement shall be deemed to have been waived by the Company, nor there any estoppel against the Company, except by written consent of the Company.

16.7 Third Party Rights. No one other than a party to this Agreement shall have any right to enforce any of its terms provided that each Affiliate may enforce the terms of this Agreement against the Buyer.

16.8 Variation. This Agreement may not be amended, modified or supplemented except in writing as agreed to and signed by both parties. If the Buyer would like to buy additional Devices (as a new Device or to replace a non-functioning Device not covered by the Warranty), it shall buy a respective Application Plan.

16.9 Entire Agreement. This Agreement constitutes the entire final, complete and exclusive understanding and agreement between the Buyer and the Company regarding the subject matter and supersedes all prior representations, proposals or understandings. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

Schedule A- Definitions

“Activation Key”	means a string of letters and/or numbers used to register or activate the Application Plans;
“Affiliate”	means any entity, directly or indirectly, controlling, controlled by, or under common control with the Company.  For the purposes of this definition, “control” (including its cognates “controlling”, “controlled by”, and “under common control”) means: (a) ownership of more than fifty percent (+50%) of the equity capital or other ownership interest in or of an organization or entity; (b) the power to control or otherwise direct the affairs of an organization or entity; (c) in the case of non-stock organization, the power to control the distribution of profits; or (d) such other relationship as, in fact, results in the actual control over the management, business, and affairs of an organization or entity;
“Agreement”	has the meaning given in Section 1.1;
“Application Plans”	means the Company’s software applications which are made available to the Buyer through the Product Offering. The Application Plans currently available are provided in the Purchase Order;
“Buyer”	means the entity specified as such in the Purchase Order;
“Company”	means the entity specified as such in the Purchase Order;
“Company Group”	means the Company and its respective Affiliates;
“Company GroupIP”	has the meaning given in Section 9.2;
“Company Indemnitee”	has the meaning given in Section 11;
“Data”	means all data, text, drawings and other materials which are collected, embodied, processed, generated or developed in any medium whatsoever, including all electronic, optical, magnetic or tangible media, during any part of the processing lifecycle of end user data, including the development of Deliverables, except that the definition of “Data” shall not include any “User Data”;
“Defect”	means, with respect to a Device, a material defect caused by defective material or workmanship resulting in a failure of such Device;
“Deliverables”	means the analysis and reports generated by, or being the output of, the Product Offering;
“Device”	means a Tag Device, a Controller, or an Other Device;
“Documentation“	means any materials provided to you before, on or after the date of this Agreement by the Company describing the use and/or functionality of the System or any part thereof. Documentation may be provided, in any form, such as electronic, print or other media, and includes product user manuals, reference manuals and installation guides or on-line help.
“EULA”	has the meaning given in the Purchase Order;
“Fees”	has the meaning given in Section 3.1;
“Force Majeure Conditions”	has the meaning given in Section 15;
“Installation”	has the meaning given in Section 5.1;
“Intellectual Property Rights”	means all current and future worldwide intellectual property rights whether registered or unregistered including, rights to inventions and creations, copyrights, mask work rights, rights in semi-conductor topography, trade secrets and know-how, trademarks, trade names, and service marks, domain names and URLs, copyrights and copyrightable works, designs, formulas, algorithms, procedures, methods, techniques, programs and other similar materials, and all recordings, graphs, drawings, reports, analyses, specifications, other writings, computer software programs (in both source and object code form, and including any programmers’ or developers’ notes, flow charts, memoranda and design documents), application programming interfaces, protocols, moral rights, and any other embodiment of the foregoing, in any form, whether or not specifically listed herein, which may subsist in any applicable jurisdiction, and applications and registrations for and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from any of the foregoing and all similar or equivalent rights or forms of protection together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these rights, in each case whether subsisting now or in the future;
“Location(s)”	means the Buyer’s physical locations in which the Application Plans are installed;
“Privacy Policy”	means the privacy policy that sets out, among other things, how the Company and/or its Affiliate collects and uses the Buyer’s personal data.
“Purchase Order”	means the purchase order to which the Terms and Conditions are attached;
“Software”	means the MSD Animal Health Group’s proprietary and generic software (in object code only), embedded into the Tag Device and on MSD Animal Health’s servers, which is given to the Buyer before, on or after the Effective Date (including on a CD or other device to load on a PC or provided via the internet in the “cloud”);
“Product Offering”	means the product offering described in the Purchase Order;
“User”	has the meaning given in Section 6.3.
“User Data”	means the Data that the Buyer provides or which is otherwise input into the Tag Devices by the Buyer or by virtue of the animal’s movements which constitutes the raw, unprocessed data of the animal’s movements, excluding any personal data as defined under the Privacy Policy;
“Warranty”	has the meaning given in Section 8.1; and
“Warranty Period”	means the period of time starting on the date the Device is installed at the Location established by warranty documents provided by the Company.