TERMS AND CONDITIONS
This agreement is entered into as of the “Effective Date” noted below, by and between Rhinebeck Equine, L.L.P., 26 Losee Lane, Rhinebeck, NY 12572 (hereinafter “RE”), and the Owner identified on the cover page hereto (“Owner”).
1. RE hereby agrees to store or cause to be stored any and all frozen semen delivered to RE (hereinafter “goods”), subject to the terms of this agreement. Notwithstanding the foregoing, RE reserves the right to reject any goods delivered by Owner, in its sole and absolute discretion, in which case RE will notify Owner that the relevant goods have been rejected and that this agreement does not apply thereto.
2. RE’s shall exercise a reasonable degree of care with respect to the receipt, storage, and disposition of all goods delivered by Owner that are subject to this agreement, subject to the terms and condition set forth herein.
3. Owner acknowledges and agrees that any and all goods accepted by RE pursuant hereto are accepted, and will be stored, in their AS-IS state and condition, without inspection by RE of any kind or nature. Without limiting the generality of the foregoing, Owner acknowledges and agrees that RE DOES NOT GUARANTEE OR WARRANT THE QUALITY, CONDITION, ABILITY TO FERTILIZE, POST-THAW MOTILITY, MORPHOLOGY OR ANY OTHER CHARACTERISTIC OR ASPECT OF ANY GOODS SUBJECT TO THIS AGREEMENT. Rather, ALL WARRANTIES OF EVERY KIND AND NATURE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED, and RE shall not be liable therefor in any respect.
4. Owner agrees to pay the fees set forth on the cover page for each month or portion thereof that goods are stored by RE pursuant to this agreement. Such fees are subject to change in RE’s sole and absolute discretion, with or without advance notice to Owner, and the fee charged and due from Owner will be the fee in effect for each month or portion thereof that goods are stored by RE pursuant to this agreement. Any and all fees due in accordance with this Section are due and must be paid no later than the twenty-eighth (28th) day of each month during which goods are stored at RE. Monthly fees due in accordance herewith shall not be pro-rated for any reason, including on termination hereof prior to the end of any month.
5. In addition to the fees due from Owner pursuant to Section 3 above, Owner shall be responsible for and shall pay any and all fees and expenses incurred during the term of this agreement for the removal, shipment or relocation of the goods stored by Owner, which fees and expenses will be charged at RE’s usual and customary rate according to a fee schedule at the time of service. (Owner may request a copy of the fee schedule at any time.) Any and all such fees and expenses are due and must be paid no later than ten (10) days after an invoice therefor is sent to Owner.
6. OWNER GRANTS RE A LIEN ON, AND SECURITY INTEREST IN, ANY AND ALL GOODS SUBJECT TO THIS AGREEMENT AS SECURITY FOR PAYMENT OF ANY AND ALL AMOUNTS DUE FROM OWNER TO RE. If Owner defaults in payment of any amount due hereunder or with respect to any liability or obligation of Owner hereunder or in connection herewith, and such default continues for a period of sixty (60) days, RE shall be entitled to exercise any and all rights and remedies afforded to a (secured) credit under applicable law or in equity including, but not limited to, the right to: (a) remove and destroy any and all goods; (b) remove and transfer any and all goods; and (c) sell any and all goods at public or private sale, to one or more persons, upon no less than ten (10) days written notice of such sale to Owner mailed, postage prepaid, to the address of the Owner set forth on the cover page hereto. Should RE sell the goods, RE will provide an accounting of the sale to Owner, and if there is any surplus resulting from the sale after RE’s recovery of any and all amounts due hereunder plus the costs and expenses of enforcement, collection and/or sale, including, but not limited to, attorneys’ fees incurred in connection therewith, the same shall be paid over to Owner, but if said sale results in a deficiency after RE’s recovery of any and all amounts due hereunder plus the costs and expenses of enforcement, collection and/or sale, including, but not limited to, attorneys’ fees incurred in connection therewith, Owner shall remain and be fully liable for such deficiency.
7. Owner agrees to defend, indemnify, and hold harmless RE, its employees and agents against any and all claims, including third party claims for loss of goods collected under this contract. Owner agrees to assume all risk of loss of goods collected and stored under the terms of this contract and agrees that the Owner is solely responsible for maintaining any and all insurance on all goods delivered to RE in such amounts as the Owner shall deem appropriate and RE shall have no responsibility whatsoever to obtain any insurance on any of the Owner’s goods. All risks, exclusive of risks resulting from the gross negligence of RE, connected with the storage, transportation pursuant to storage, or other transportation at the request of the owner shall be born by the Owner.
8. RE shall employ the degree of care customarily employed by person/entities storing goods and otherwise collecting, freezing, and handling goods in the general location in which the goods is stored and shall not be liable for the loss of or damage to the goods stored unless it is established by the Owner that such degree of care was not provided by RE. Owner also agrees that RE will retain the right to a customary post-thaw evaluation of at least one unit of goods from each collection processed by RE and that collections not fulfilling minimum quality standards will not be commercially distributed without an evaluation statement claiming that RE does not recommend goods from this collection to be used for artificial insemination. RE reserves the right of judgment as to which collections are not worthy of freezing and/or storage.
9. Owner acknowledges that RE makes no guarantee or warranty with respect to the quality, condition, ability to fertilize, post-thaw motility, morphology or any other characteristic of the goods stored pursuant to this Agreement. RE makes no warranty of any kind whatsoever, expressed or implied, which extends beyond a description of the services agreed upon herein, and hereby disclaims all warranties, including warranties of merchantability or fitness for a particular purpose.
10. Jurisdiction and venue for any action to enforce this Contract, or for damages or any other relief arising from or in connection with it, shall originate exclusively in the District Court in and for the County of Columbia, State of New York.
11. This Agreement constitutes the entire agreement among the parties. It supersedes any prior Agreement, written or oral, or any understanding between them, and it may not be modified or amended in any manner other than by a written instrument signed by both parties.