IDEXX Latin America Terms and Conditions of Sale
Effective as of December 12, 2018
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL TRANSACTIONS BY IDEXX BRASIL LABORATORIOS LTDA OR ITS AFFILIATE COMPANY IDENTIFIED ON THE FRONT OF AN INVOICE, PACKING SLIP, ORDER CONFIRMATION OR SIMILAR DOCUMENT (COLLECTIVELY, WE, US OR OUR) ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS.
If we provide you terms and conditions (including without limitation a limited warranty or a software license) with respect to a particular product or service in connection with your initial product purchase (or license, in the case of software) in your order form/sales receipt, or in any user guide, instructions or other documentation accompanying such product, or in any directory of services or similar document, then those terms and conditions (including without limitation any limited warranty or software license, as applicable) that we provide with respect to a particular product or service shall control and supersede these terms and conditions with respect to that product or service; otherwise, these terms and conditions (including without limitation the limited warranty and software license terms set forth below, as applicable) apply to products or services sold or licensed hereunder.
1. Prices; Payment. Prices are as set forth on our order form or otherwise as published from time to time. Prices are exclusive of all taxes and duties of any kind, all of which you must pay. Orders are subject to our written acceptance at our corporate offices. For Companion Animal Group customers (veterinary in-house diagnostics, pharmaceuticals, reference laboratories and telemedicine), payment terms are net the 25th day of the month following the date of invoice. For all other customers (Livestock/Poultry, Water Microbiology, Dairy Testing, OPTI Medical Systems, Inc.), payment terms are net 30 days from date of invoice. We may change payment terms at any time or revoke any credit previously extended. Overdue payments are subject to finance charges of the lower of 1 1/2% per month or the maximum interest rate allowed by law. If at any time you have not paid all amounts due, other than amounts disputed in good faith, then without prejudice to any other rights we may suspend our performance under this Agreement, including our warranty service.
2. Delivery; Returns. Sales are Ex works (per Incoterms 2000) our premises wherever located; the delivery date is the date that products are ready for pickup at that location by you or a carrier for delivery to you. Title to and risk of loss of products (other than software) passes to you on the delivery date. All sales are final. You may not return products to us without our prior written authorization. Authorized returns are for credit only. Some products are subject to restocking fees.
3. LIMITED WARRANTY. Who is Covered: The benefit of this limited warranty extends to you only if you are the original end-user of new products purchased or licensed directly by you from us or from our authorized distributors. Our products and services are for professional use only, by trained personnel. Our limited warranty is not applicable to any person or entity, other than you.
What is Covered/Duration: We warrant our nonsoftware products to conform to our published specifications, when stored and used under conditions specified by us and otherwise given normal, proper and intended usage, until the expiration of their stated shelf life, or, if none is stated, for the greater of one year after delivery to you or as stated on your order form/sales receipt. We warrant the two most current release versions of our software licensed to you (together with any related documentation, "software") to perform substantially in accordance with our published specifications for 90 days after delivery to you. You understand that no diagnostic product can warrant 100% accuracy. We do not warrant uninterrupted or error-free operation of our products. We do not warrant expendable or consumable parts, such as fuses, batteries, bulbs, cables, power cords, adapters, pipettors, calibrators, print heads, keyboards, mice, ribbons, tapes, CDs or other supplies or media, or third-party products, such as printers or non-IDEXX software; all of which we provide on an "AS IS" basis. Third-party product suppliers may provide their own warranties. We do not warrant any software patch, update, upgrade, modification or other enhancement provided by us beyond the original warranty period for the software, which begins with your initial license from us.
Our Limited Warranty: During the applicable limited warranty period we will, at no additional charge, (1) for nonsoftware products, at our option either repair a nonconforming product with new parts or serviceable used parts that are equivalent or superior to new parts in performance, or replace a nonconforming product with a new product or at our option with a serviceable used product that is functionally equivalent or superior to a new product in performance, and will return such product to you, transportation and insurance prepaid and (2) for software, provide modifications to any nonconforming software to attempt to make it conforming. Our warranty on replacement parts and product repairs extends for the remainder of the applicable warranty period. Our exclusive liability and your sole remedy for breach of any limited warranty shall be repair or replacement (or modification, in the case of software) of a nonconforming product that does not meet our limited warranty. If after reasonable efforts we are unable to repair or replace a nonconforming product (or to make software conforming), your sole remedy and our exclusive liability is a refund of the purchase price or license fee paid to us for the product. You may contact our customer service telephone number in your invoice or product instructions for further warranty information.
Warranty support is available during our normal business hours at our service locations, except holidays. You must make any claim within the applicable warranty period. In case of malfunction, you must first contact IDEXX Customer Service by telephone at our number provided in your product documentation. Our service personnel will guide you to attempt to correct reported problems yourself. If you wish to receive electronic support, you must maintain an electronic link-up with us as we may direct from time to time. If telephone or electronic support is not successful, we will give you further instructions. We have no obligation to provide on-site service. If it is necessary to return the product, you must do so, transportation and insurance prepaid, to our designated facility for examination. Before you return any applicable product, you must perform a full system back-up of your data. We must issue you a Return Authorization Number before any return. If the product is nonconforming, we will return the repaired/replaced product to you, transportation and insurance prepaid, in accordance with our limited warranty, as described above. If we determine that the reported problem is not covered by our warranty, we will attempt to repair/replace the product at your cost, at our then-standard rates for such work, or return it as you instruct and at your expense. All exchanged parts and products become our property.
For software products, we shall use reasonable commercial efforts to attempt to resolve nonconformities in a time frame reasonably proportionate, in our judgment, to the severity of the problem, and to provide periodic modifications that we otherwise make available to other supported customers free-of-charge. We shall provide this support only for the two most current release versions of the software. If you have a networked installation, and if a system malfunction occurs, you are responsible for contacting your network support provider first to determine that the issue is not due to network problems, before contacting us for IDEXX product support.
Your Obligations: You must take reasonable care of the products, maintain them in a clean and appropriate environment and carry out the routine maintenance recommended by us in the applicable user guide, instructions or other documentation or otherwise communicated to you from time to time. You must provide reasonable supporting data to help identify reported problems. You must promptly install new release versions of software that we may periodically send you, and you must upgrade your operating system software as we may periodically recommend. We are not liable for loss of your data; we strongly recommend that you regularly perform a system back-up on applicable products and archive your data to minimize loss in case of a malfunction.
Exclusions for Improper Use, Etc.: We do not warrant the performance of our products if you use them other than in strict accordance with our product instructions, if you use them on or in conjunction with products or services not provided and configured by us, or if you install any software applications on your products, other than those applications that we provide you. FAILURE TO USE ONLY OUR AUTHORIZED PRODUCTS OR SERVICES IN OR ON YOUR PRODUCTS VOIDS OUR WARRANTY OBLIGATIONS TO YOU. Our warranty does not cover damage resulting from any causes external to our products, such as negligence or improper use or handling; casualty; external electrical fault; failure to follow packing or shipping instructions; use of unauthorized products in conjunction with our products; computer viruses, worms or other harmful programs; or repairs or modifications made by anyone other than us or our authorized service providers. We will repair normal wear-and-tear damage only to the extent required for proper functioning of equipment; cosmetic damage is not covered.
Disclaimer of Additional Warranties: EXCEPT AS STATED IN THIS LIMITED WARRANTY, WE MAKE NO OTHER WARRANTY, REPRESENTATION OR CONDITION, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND THERE IS NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. We do not assume, nor do we authorize any employee, agent, distributor or other person to assume for us, any other liability in connection with our products. If you qualify as a "consumer" under applicable law, then you may be entitled to any implied warranties allowed by law, limited to the period of the express warranties and the remedies set forth in this limited warranty. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
4. Limitation of Liability. We are not liable for failure to perform under this Agreement due to circumstances beyond our reasonable control. UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR LOSS OF PROFIT OR USE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF GOODWILL, DATA OR EQUIPMENT, OR FOR BUSINESS INTERRUPTION, ARISING OUT OF THE MANUFACTURE, SALE, SUPPLY OR USE OF OUR PRODUCTS OR SERVICES OR FAILURE OR DELAY IN DELIVERING SUCH PRODUCTS OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. OUR ENTIRE LIABILITY FOR A PRODUCT OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT YOU PAID FOR SUCH PRODUCT OR SERVICE. Some jurisdictions do not allow the exclusions or limitation of special, incidental, consequential, indirect, exemplary, punitive or multiple damages or the limitation of liability to the actual price paid for the product or service, so the above limitations may not apply to you. Our limited warranty gives you specific legal rights, and you may also have other rights that vary from jurisdiction to jurisdiction.
5. Software License. Software that we provide is licensed to you on a nonexclusive basis for your installation and use only on the instrument product for which it is intended, and is not sold; and the words “purchase,” “sold” or similar words mean “license,” as used in this Agreement. Without prejudice to any other rights, we may terminate your software license if you fail to comply with the terms of this Agreement. We or our suppliers own all title to and copyrights in software and any copies. You agree to treat any software patch, update, upgrade, modification or other enhancement that we may provide as “software” under this Agreement and to use them only as permitted by this Agreement. You may make one copy of the software solely for back-up purposes. You may permanently transfer your copy of the software, provided that you promptly notify us of the name and address of the recipient, you retain no copies, and the recipient agrees in writing to the terms of this Agreement (however, the benefit of our limited warranty shall not extend to your transferee).
Software is for your internal purposes only, and you agree not to use it for the benefit of any other person (including on a time-sharing, service bureau or other basis), or for developing application programs, written materials or other products. You agree not to modify, enhance, reverse engineer, decompile, disassemble, or otherwise change or supplement the software.
Except as provided in the first paragraph of this Section 5, you agree not to cause or permit disclosure, copying, display, loan, publication, transfer of possession (whether by sale, exchange, gift, operation of law or otherwise) or other dissemination of such software, in whole or in part, to any third party without our prior written consent; and you shall limit use of and access to software to such of your employees as are directly involved in its use. You shall take reasonable steps to safeguard the software and to ensure that no unauthorized persons have access to it and that no persons authorized to have access take any action that would violate this Agreement if you took such action yourself.
6. Compliance with Laws. You shall deal with the products in conformity with applicable laws of all government authorities, including without limitation the U.S. Export Administration Act. You shall obtain all permits, licenses and other documentation required in connection with the purchase, installation, sale, export, shipment or use of any products. You shall not divert or transship any products other than within the country of destination specified in our shipping order or permit anyone else to do so.
7. No Additional or Inconsistent Terms. Any term of any purchase order or other document that you provide us that is in any way inconsistent with or in addition to the terms set forth herein will not become a part of the contract between us and you or be binding on us.
8. No Assignment. Except as provided in Section 5, you may not assign any duties, rights or claims hereunder without our prior written consent, and any such attempted assignment is void.
9. Governing Law; Venue; Waiver of Jury Trial. This Agreement and our respective rights and duties are governed by and shall be interpreted and enforced in accordance with the laws of Brazil, without giving effect to the principles of the conflict of laws thereof. Any legal actions relating to this Agreement shall be exclusively settled by arbitration in accordance with the rules of the International Chamber of Commerce (except that we may bring an action for an injunction or similar equitable relief against you in any proper jurisdiction), and you hereby waive any claim of lack of jurisdiction or inconvenient forum. In that connection the following applies: (i) the arbitral tribunal shall comprise of three arbitrators, (ii) the place of arbitration shall be Sao Paulo, Brazil, (iii) the proceedings shall be conducted in the English language, (iv) the arbitral tribunal shall decide in accordance with the rules of law and shall not act as amiable compositeur, (v) the International Chamber of Commerce may not publish or have the arbitration award published. YOU AND WE WAIVE TRIAL BY JURY IN ANY LEGAL ACTION BY OR AGAINST US IN SUCH LEGAL ACTIONS. We each further waive any claims against the other for multiple, punitive or exemplary damages in any legal actions relating to this Agreement. The prevailing party in any such legal actions shall be entitled to an award of its reasonable legal fees and costs.
10. Government Contract Provisions. Any software or documentation supplied hereunder that is acquired by or on behalf of the U.S. Government or other national government, is "commercial computer software" or "commercial computer software documentation," and absent a written agreement to the contrary, the government’s rights with respect to such software or documentation are limited by the terms of this document, pursuant to FAR ‘ 12.212(a) and/or DFARS ‘ 227.7202-1(a).
11. English Language. The parties confirm that it is their wish that this Agreement and any other documents delivered or given pursuant to this Agreement, including notices, have been and shall be in the English language only.