Software Offering General Terms
(Revision May 18, 2023)
These Software Offering General Terms apply to IDEXX Software Offerings and are in addition to the General Terms and the Offering Specific Terms applicable to the IDEXX Software that you use. Your order form will contain all the details about your purchase, including the Software Offering and support and maintenance levels purchased, your subscription or license term, and your fees.
If any capitalized term used in these Software Offering General Terms is not defined below, then it is defined in the General Terms. If there is a conflict between a definition in these Software Offering General Terms and the General Terms, the definition in these Software Offering General Terms will apply.
Cloud Software means Software that is provided by IDEXX via the Internet.
Customer Data means all electronic data that you submit, post or transmit via the Software.
Licensed Software means Software that is licensed to you perpetually or on a subscription basis, as identified on your order form.
Open Source Components means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
Software means the Licensed Software or the Cloud Software, as applicable. '
Software Services means implementation or other services related to your Software provided by IDEXX, as described in Offering Specific Terms or an order form.
User shall mean any end user you’ve authorized to access the Software.
2. Your Use of the Software
2.1 Access and Use of the Software. IDEXX grants you the right to access and use the Cloud Software or the Licensed Software set forth in your order form, subject to these Software Offering General Terms and the General Terms. If you purchased Licensed Software, your license to install and use the Software is subject to any license terms set forth in your order form. You may use the Software solely for your veterinary practice’s internal business purposes, and you shall not use the Software for any purpose that is to IDEXX’s detriment or commercial disadvantage. 2.2. Suspension. IDEXX may suspend your or any of your User’s access to any or all Software without notice: (a) if you use the Software in a way that violates applicable local, state, federal, or foreign laws or regulations these Software General Terms or the General Terms; (b) for your non-payment of fees; or (c) if the Software, or your use thereof, is a security risk or under attack or threat of attack.
2.3 Authorized Users. As a Customer, (a) you are responsible for your Users’ activity and use of the Software and Software Services; (b) you must maintain a written, up-to-date list of current Users and provide such list to us within 10 days of our written request; (c) you must keep, and ensure your Users’ shall keep, secure logins and passwords for access and use of the Software and Documentation, and keep such logins and passwords confidential; (d) you must notify Users, and ensure that Users understand and agree, that their use of the Software is subject to these Software Offering General Terms, the General Terms and any applicable Offering Specific Terms; and (e) you must promptly disable any login account, or enable IDEXX to do so, if you or we discover that any login details have been provided to any unauthorized third party.
You must ensure that the number of Users that you authorize to access and use the Software does not exceed the maximum number of Users allocated to your account, if applicable, as specified in an order form or the Offering Specific Terms. You are responsible for determining the level of access that each User has to access and use the Software, and you acknowledge that we will not be responsible for your use, or inability to use, the Software arising out of or in connection with any act or omission of your Users. Authorized Users must be limited to employees, contractors, officers or agents of your business who are expressly authorized by you to use the Software and receive the Software Services. If you wish to add an external third- party supplier of services to your business as a User, then you must obtain our prior written approval. To the extent the relevant third-party supplier provides benchmarking services or provides services to multiple IDEXX subscribers then IDEXX may require that third party to enter into a separate API integration agreement directly with IDEXX.
2.4 Change in Number of Users. If your subscription designates a maximum number of Users, you may request an increase or decrease to the maximum number of Users who can access and use the Software on written notice to us. If agreed by IDEXX, we will make the change to the number of Users on your account as soon as practicable. If you decrease the number of Users, no refunds will be paid in respect of any unused portion of any fees that have been pre-paid in the prior month (if applicable). If you increase the number of Users, we will charge you for any net amount due for the additional Users in a following invoice.
2.5 Acceptable Use Policy. You and your Users may not use Software or the network or services on or with which they are delivered or made available for any of the following activities: (a) any activity which is prohibited by or would violate any applicable law or legal obligation; (b) uses that are defamatory, deceptive, obscene, or otherwise inappropriate; (c) uses that violate or infringe upon the rights of any other person, including but not limited to any IDEXX or third- party Intellectual property; (d) threats to or harassment of another; (e) impersonating another person or other misrepresentation of source; (f) allowing the introduction of viruses, or any other destructive material; (g) monitoring, crawling, caching, or scraping a system without authorization, or do so in a manner that impairs or disrupts the system being so utilized; (h) performing denial of service attacks or otherwise interfering with the proper functioning of a system including any deliberate attempt to overload a system by mail, broadcast attacks, or otherwise; (i) transmitting unsolicited or unauthorized advertising, promotional material, “junk mail”, or spam”; (j) otherwise interfering with another user’s enjoyment of the offerings; (k) attempting to undermine the integrity or security of the Software, or IDEXX or third party systems, networks or data used in the provision of the Software; (l) make the Software and/or Documentation available to any third party except your Users in accordance with these terms; or (m) attempting to modify, copy, duplicate, frame, mirror, reproduce, resell the Software or Documentation in any form. IDEXX reserves the right to delete, move or edit any of your data that we determine, in our sole discretion, violates the Software Offering General Terms or is otherwise inappropriate. Please report any violations of the section to firstname.lastname@example.org.
2.6 Your Responsibilities. (a) You acknowledge that IDEXX regularly upgrades and updates the Software, that the Software is continually evolving, and in some cases IDEXX may discontinue existing features of the Software. Some of these changes will occur automatically, while others may require you to schedule or implement the changes. You agree, where required, to upgrade your software and/or devices in order to make efficient use of the Software. (b) You will provide accurate and complete information when registering for any Software. IDEXX has the right to suspend or terminate your Software if we have reasonable grounds to suspect your information is not accurate. (c) You will provide IDEXX with all necessary co- operation and information as we may require to provide the Software and the Software Services (if any) to you, or any warranty, maintenance or trouble shooting services for the Software, including but not limited to, security access information, configuration services and server access. (d) You will use all reasonable efforts to prevent any unauthorized access to, or use of, the Software and, in the event of any such unauthorized access or use, promptly notify us. (e) You allow us at any time to audit your use of the Software in order to establish whether such use is in accordance with these terms; and you must on demand, pay to us an amount of any underpayment of fees discovered from such audit. (f) You acknowledge that, in order to use any Cloud Software, you must be connected to the Internet and that you are responsible for equipment and fees required for such connection, and any all problems, delays or damages arising from or relating to your network connections. (g) You will ensure that your network and systems comply with the relevant specifications as may be specified by IDEXX from time to time.
3. Term and Termination
3.1 Cloud Software. If the Cloud Software is subscription based, your initial subscription period will be specified in your order form or Specific Agreement, and, unless otherwise specified in your order form, Specific Agreement or the applicable Offering Specific Term, your subscription will automatically renew for the shorter of the subscription period, or one year.
3.2 Licensed Software. The term of your license will be specified in your order form. If you’ve purchased a subscription license, unless otherwise specified in your order form or the applicable Offering Specific Terms, your subscription will automatically renew for the shorter of the subscription period, or one year.
3.3 Maintenance and Support. The term for maintenance and support, if any, will be set forth in your order form.
3.4 Subscription Non-Renewal. Unless otherwise specified in your order form or the applicable Offering Specific Terms, to prevent renewal of your subscription, you must give written notice of non-renewal by in the manner set forth in the Offering Specific Terms, no less than thirty (30) days prior to the end of your then-current subscription period.
3.5 Early Cancellation of Subscription. You may choose to cancel a Software subscription early at your convenience, provided that we will not provide any refunds of prepaid fees or unused subscription fees, and you will promptly pay all unpaid fees due through the end of the subscription term. For Software that is not subscription based or otherwise provided without charge, IDEXX may cease providing access to such Software with 30 days prior notice.
3.6 Termination of License. Upon cancellation, termination or non-renewal of a Software subscription, all licenses granted hereunder will immediately terminate and you must cease using the Software and Documentation.
4. Customer Data
4.1 Security Measures for Cloud Software. IDEXX shall implement and maintain reasonable controls designed to: (a) protect against any anticipated threats or hazards to the confidentiality or integrity of Customer Data on the Cloud Software and to (b) protect against unauthorized access, disclosure, or use of Customer Data on the Cloud Software.
4.3 Backing up Data. You acknowledge that if there is any loss or damage to your Customer Data, your sole and exclusive remedy will be for IDEXX to use reasonable commercial efforts to restore such lost or damaged data from the latest backup of Customer Data maintained by IDEXX; however, such restoration by IDEXX is not guaranteed. You are responsible for keeping your own up-to-date backup copies of Customer Data. IDEXX will not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party.
4.4 Reports Data. Information, analyses, calculations, or reports may be provided through the use of the Software (together referred to as Reports). IDEXX does not warrant the accuracy, correctness, reliability or completeness of any Reports. You acknowledge the Reports are for informational purposes only, and that the assumptions used and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been taken into account at the time the Reports were created. To the maximum extent permitted by law, IDEXX will not be liable for any form of loss or damage, arising out of or in connection with your reliance on and use of the Reports. You agree that you will not rely solely on the Reports and will carry out your own analysis (other than by using the Software) to verify the accuracy, correctness, reliability and completeness of the Reports.
5. IDEXX Services and Third Party Services
5.1 IDEXX Services. Where IDEXX provides Software Services to you: (a) You will, within the agreed timeline, carry out all necessary required responsibilities including (without limitation) gathering and providing information, setting up of templates, attending online meetings and webinars, and configuration in a timely fashion. In the event of any delays in carrying out such responsibilities IDEXX may adjust any agreed timetable or delivery schedule as reasonably necessary; (b) During an onsite implementation, you will make available at least one staff member with decision-making authority at each site to accompany and assist IDEXX personnel at all times.
5.2 Integrated Third Party Services. Along with the use of the Offerings, IDEXX also may make applications, services and links to websites operated by Third Parties (each, a “Third Party Service”) available to you, which are subject to the applicable Third Party terms and conditions. Your use of these Third-Party Services may result in further charges being payable by you to the relevant Third Party. By using a Third Party Service, you accept the terms of that application or service. If you do not agree to those terms, do not use that particular application or service. IDEXX does not accept any responsibility for any Third-Party Service. If you authorize a Third Party to access or write back data into your Software, IDEXX will not responsible or liable for such Third Party’s use of or updates to your Customer Data. Some Third Party Service providers may pay IDEXX a support fee that may, without limitation, be related to the data that the Third Party Service provider accesses through our IDEXX APIs. Such access is always subject to you granting your consent to the relevant Third-Party Service provider to obtain that data through our IDEXX APIs.
If you use the Software in connection with Third Party services or applications that were not made available by IDEXX (“Unsanctioned Services”), IDEXX is not responsible for such Unsanctioned Services, or liable for any damage to the Software or your Customer Data arising from the Unsanctioned Services or its use with the Software.
5.3 Third Party Providers. You acknowledge that IDEXX may rely on the provision of services by Third Party providers, including without limitation Third Party cloud platform providers, and that the Software may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party providers. IDEXX will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or is in connection with any services provided by Third Party providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. IDEXX uses Third Party cloud platform providers for our Cloud Software, including Amazon Web Services, Inc. (“AWS”). You will be responsible for any acts or omissions that violate our Third Party providers' terms, including the AWS Customer Agreement and the AWS Service Terms, each of which AWS may update periodically.
6. Warranty and Support
6.1 Standard Warranty. IDEXX represents that the Software will substantially conform in all material respects to the specifications available in the Documentation when installed, operated, and/or used as recommended in the Documentation and in accordance with these Software Offering General Terms and the applicable Offering Specific Terms. IDEXX will, as the sole remedy and liability for a breach of the foregoing warranty, make commercially reasonable efforts to fix any non-conformity within a reasonable timeframe after you notify IDEXX in writing of the non-conformity. IDEXX also represents that Services will be performed in a professional and workman like manner. IDEXX will, as the sole remedy and liability for the breach of the foregoing warranty, reperform such Services within a reasonable timeframe after you notify IDEXX in writing of the failure to perform in a professional and workmanlike manner.
6.2 In addition, IDEXX will use reasonable commercial efforts to: (a) report, track and monitor problems via the Internet, if available, (b) determine, verify and resolve problems by telephone on a callback basis during normal business hours at our service locations, Monday- Friday, except holidays, and (c) provide periodic modifications that we otherwise make generally available to other supported customers free of charge. IDEXX provides support only for the two most current release versions of Licensed Software. At our option, you may be required to upgrade to the then-current version of Licensed 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 product support. On-site support is not included. Additional support services and maintenance coverage, if any, is specified in your order form and subject to additional Software Offering Terms.
6.3 Disclaimer of Additional Warranties. EXCEPT AS PROVIDED IN SECTION 6.1, ALL SOFTWARE OFFERINGS AND SERVICES PROVIDED BY IDEXX ARE PROVIDED "AS IS." IDEXX AND OUR LICENSORS MAKE NO OTHER REPRESENTATIONS OR CONDITIONS, EXPRESS OF IMPLIED, WRITTEN OR ORAL, REGARDING OUR SOFTWARE OFFERINGS. WE SPECIFICALLY DISCLAIM ALL THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.WITHOUT LIMITING THE FOREGOING, IDEXX MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, SERVICES OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
7.1 Indemnification by You. You shall indemnify, defend, and hold IDEXX harmless from and against any and all Losses resulting from any Action (each as defined below) that arises from (a) use of the Software outside the purpose or manner of use authorized by these Software Terms or otherwise in breach of these Software Specific Terms or the General Terms; (b) unauthorized or illegal use of the Software by you, your Users or your Affiliates, (c) the Customer Data. IDEXX will notify you in writing within thirty (30) days of our becoming aware of any such Action; give you sole control of the defense or settlement of such Action; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the Action. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent. "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise. "Losses" means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification.
7.2 Indemnification by IDEXX. IDEXX shall indemnify, defend, and hold you harmless from and against any and all Losses resulting from any Third Party Action that the Software or any use of the Software in accordance with these Software Specific Terms, infringes such third party’s valid patents, copyrights, or trade secrets. IDEXX will have no obligation under this section if the alleged infringement arises from: (a) the combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by IDEXX or specified for use in applicable documentation; (b) modification of the Software by you that were not authorized in writing; (c) use of the Software outside the purpose or manner of use authorized by these Software Terms. If the Software, or any part of the Software, is, or in IDEXX’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual property right, or if your use of the Software is enjoined or threatened to be enjoined, IDEXX may, at its option and sole cost and expense; (x) obtain the right for you to continue to use the Software as contemplated herein; (y) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software; or (z) if none of the remedies set forth are available, IDEXX may terminate your order form and shall promptly refund to you, on a pro rata basis, the share of any fees prepaid by you for the future portion of the term that would have remained but for such termination. You will notify us in writing within thirty (30) days of our becoming aware of any such Action; give us sole control of the defense or settlement of such an Action; and provide us (at your expense) with any and all information and assistance reasonably requested to handle the defense or settlement of the Action. You will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without our prior written consent.
7.2.1 SECTION 7.2 SETS FORTH YOUR SOLE REMEDIES AND IDEXX’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE INFRINGES OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8. Limitations of Liability
EXCEPT FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS. IN NO EVENT WILL IDEXX, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, (i) FOR ANY USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (ii) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (iii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9. Service Level Commitment
IDEXX will use commercially reasonable efforts to make the Cloud Software available for access and use by you at least 99.8% of each calendar month, excluding unavailability caused by (i) factors outside of our reasonable control, including any force majeure event or Internet-access or related problems beyond the IDEXX network demarcation point, (ii) your actions or inactions or those of a third party (such as server or software maintenance) that affect availability of IDEXX Software or Services, (iii) our suspension or termination of your right to use the service, or (iv) planned maintenance windows determined by us. We reserve the right to apply any necessary security or application updates as needed without notification. We will inform you of planned maintenance at least five days in advance which may be by an announcement within the Software.
10. Copyrights and Copyright Agent
IDEXX respects the Intellectual Property of others, and we ask Users of our Offerings to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the site; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
IDEXX’s copyright agent for notice of claims of copyright infringement on websites controlled by us can be reached as follows:
Office of General Counsel
IDEXX Laboratories, Inc.
One IDEXX Drive
United States of America