IDEXX Laboratories (proprietary) Limited General Terms and Conditions of Sale for Sub-Saharah Africa ("Conditions") 2013 Edition
UNLESS OTHERWISE EXPRESSLY AGREED BY AN AUTHORIZED IDEXX REPRESENTATIVE IN WRITING, ALL SALES OF PRODUCTS BY IDEXX LABORATORIES (PROPRIETARY) LIMITED OR ANY SUB-SAHARAN AFRICAN AFFILIATED COMPANY IDENTIFIED ON AN INVOICE OR ORDER FORM (“IDEXX” or “we” or “us”), ARE SUBJECT TO THESE CONDITIONS. In these Conditions, “Buyer” means a buyer or licensee of products from IDEXX.
If IDEXX provides Buyer terms and conditions (including without limitation a warranty or a software license) with respect to a particular product or service in connection with Buyer’s initial product purchase (or license, in the case of software) in an order form/sales receipt, or in any user guide, instructions or other similar documentation that accompanies the 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 IDEXX provides with respect to a particular product or service shall control and replace these Conditions with respect to that product or service; otherwise, these Conditions (including without limitation the warranty and software license terms set forth below, as applicable) apply to products or services sold or licensed hereunder.
If Buyer does not accept these Conditions, Buyer must return the products in the package in which they were received within five (5) business days after receipt of the products. Failure to promptly return products, or any use of products, constitutes acceptance of these Conditions.
Article 1: Entire Agreement
These Conditions, together with any documents referenced herein, constitute the entire agreement between IDEXX and Buyer relating to the subject matter and supersede all prior oral statements or previous written terms and conditions of IDEXX. No term of Buyer’s purchase order or other document, which is in any way inconsistent with or in addition to these Conditions, will become a part of the contract between IDEXX and Buyer or these Conditions and IDEXX hereby explicitly rejects such terms. None of these Conditions may be altered, added to or superseded unless expressly agreed to in writing and signed by an authorized representative of IDEXX. Buyer acknowledges that it has not been induced to purchase IDEXX products or services by any representation or warranty other than those contained in these Conditions and agrees it shall have no remedy in respect of any such representation or warranty except in case of fraud.
Article 2: Quotations
No quotation by IDEXX shall be effective unless in writing. Quotations are valid for sixty (60) days from their date of issue unless terminated earlier by IDEXX upon notice to Buyer, or otherwise conditioned.
Article 3: Orders
|3.1||Buyer may place orders with IDEXX sales associates or IDEXX’s Customer Service Department via telephone, fax, mail or email where available. All orders are subject to IDEXX’s acceptance.|
|3.2||Any applicable minimum order quantity requirements are as noted on IDEXX’s sales order form or otherwise as published from time to time. Orders may be subject to shipping and handling charges; where applicable, we will add these charges at the time of invoicing.|
IDEXX will accept order cancellations in our sole discretion; but under no circumstances will IDEXX accept a cancellation after a shipping order has been generated. Charges may apply. After we generate a shipping order, any alteration of an order constitutes a new order and may be subject to separate shipping and handling charges.
Article 4: Pricing
|4.1||Prices are as set forth on IDEXX’s order form or otherwise as published from time to time. Current prices are also available by contacting IDEXX’s Customer Support department at+27 11 466 9270. Prices are subject to change without previous notice for orders not yet received at the time of increase. Prices are subject to the addition of any and all applicable taxes (e.g., Value-Added Tax (“VAT”)), import duties, levies, fees or other charges of any kind. Buyer undertakes to provide IDEXX with all information and documents required for VAT purposes, including without limitation VAT number and VAT exemption documents.|
|4.2||If an order specifies future requested delivery dates, delivery of a portion of the order on a requested delivery date does not constitute acceptance of pricing for future requested delivery dates, and IDEXX may adjust pricing accordingly.|
Prices are based on the cost of materials, transport, labour, insurance rates, exchange rates, import duties, surcharges, port dues, customs duty and railage at the date of acceptance of order. Should any of these rates vary between the date of acceptance of the order and the date in which the above costs are incurred, IDEXX reserves the right to vary the purchase price by the increase or decrease in such charges.
IDEXX reserves the right to charge for special packaging, e.g., for products containing biohazardous materials.
Article 5: Delivery and Storage Conditions
|5.1||Unless otherwise agreed between IDEXX and Buyer, products will be delivered Ex Works (International Chamber of Commerce Incoterms 2010) from IDEXX’s facilities. Title and risk of loss of products (other than software) pass to Buyer upon IDEXX’s delivery of ordered products to a carrier at IDEXX’s facilities. For avoidance of doubt, without limiting the generality of Ex Works terms, if Buyer does not instruct otherwise in its order, IDEXX will select and make arrangements with a carrier, at Buyer’s risk and expense. IDEXX does not obtain additional insurance over and above carrier standard terms, which depending on the shipment may be less than the value to Buyer of the shipment. If Buyer wishes to obtain additional carrier insurance for a shipment, IDEXX can, on Buyer’s instructions and at Buyer’s expense, obtain insurance to Buyer’s stated limits to the extent it is available from the carrier.|
|5.2||Times or dates quoted for delivery are estimates only and do not constitute a contract between IDEXX and the Buyer. Products with specific temperature requirements are shipped according to their applicable conditions. Upon receipt, products must be stored under the conditions indicated by the product documentation.|
Article 6: Acceptance; Claims
Buyer must inspect products promptly upon receipt and agrees, within twenty-four hours, or as soon as reasonably possible after receipt, to notify IDEXX’s Customer Service Department by phone, followed by writing, of any claims for shortages, discrepancies or defects. Buyer shall hold the products under their indicated storage conditions pending IDEXX’s written instructions concerning disposition. If Buyer fails to notify IDEXX within ten (10) days after receipt of the products, the products are conclusively deemed to conform to these Conditions, and the Buyer is deemed irrevocably to have accepted the products.
Article 7: Return Products and Credit Policy
|7.1||All sales of products are final. Except in cases of a proper rejection by Buyer under Article 6, or failure of the product to conform to IDEXX warranty under Article 9, IDEXX may refuse any return in our sole discretion. Except in cases of an IDEXX-initiated product recall, IDEXX must authorize any return by issuance of a Return Goods Authorization (“RGA”).|
|7.2||Buyer must make any request to return products to IDEXX’s Customer Service Department. Any request for an RGA must include applicable product information (such as catalog number, lot/batch number, and expiration date) and purchase information and/or invoice number, as well as the reason for return.|
No RGA will be given for the following (except in cases of a proper rejection by the Buyer under Article 6 or failure of the product to conform to IDEXX warranty under Article 9):
No credits will be issued for the following (except as otherwise provided in IDEXX’s warranty to Buyer under Article 9):
A restocking fee for a product return, in the amount of 25% of invoice price or 500 ZAR whichever is greater, shall apply. Buyer is also responsible for all shipping costs to and from Buyer’s premises. In cases of an IDEXX shipping error, or proper rejection by Buyer under Article 6 or failure of the product to conform to IDEXX warranty under Article 9, Buyer may return the product (once authorized by IDEXX) at IDEXX’s expense via specified carrier, and no restocking fee shall apply.
Article 8: Payment Terms
|8.1||Payment terms are cash, free of exchange, deduction or set off, against delivery, unless IDEXX has granted credit to Buyer under its credit application procedure, in which case the payment is due 30 days from the date of the invoice unless otherwise agreed in writing. IDEXX may change payment terms at any time or revoke any credit previously extended. If Buyer has not paid all amounts due, other than amounts disputed in good faith, or Buyer otherwise breaches any term of these Conditions, then without prejudice to any other rights, IDEXX may suspend performance under these Conditions, including order acceptance, product shipments and warranty service, and declare any outstanding amounts owed by Buyer immediately due and payable.|
|8.2||If Buyer fails to pay any invoice when due, IDEXX may charge Buyer monthly late payment charges calculated as the lesser of twelve (12%) percent per annum or the maximum permissible rate allowed by law on the outstanding balances. If IDEXX incurs banking fees due to rejection of payments initiated by Buyer, IDEXX may charge administrative fees to the Buyer.|
All payments that require a documentary letter of credit must be made by means of an irrevocable documentary credit equal to the total price of the order/contract, to be opened in favor of and at no cost to IDEXX within twenty (20) days from acceptance of an order by IDEXX, and to be confirmed by an international bank approved by IDEXX. This documentary credit shall be payable at sight with the confirming bank in the amount of one-third (1/3) thereof as advance payment upon acceptance of an order and two-thirds (2/3) thereof upon IDEXX putting the goods in possession of a carrier at IDEXX’s facility.
Article 9: Payment Terms
|9.1||Who is Covered: The benefit of IDEXX’s warranty extends only to the original Buyer and end-user of new products purchased or licensed directly by Buyer from IDEXX or from IDEXX’s authorized distributors or resellers. IDEXX products and services are for professional use only, by trained personnel. IDEXX’s warranty is not applicable to any person or entity, other than such Buyer and such end-user.|
|9.2||IDEXX Kit Warranty: IDEXX warrants IDEXX tests used on IDEXX instruments, IDEXX reagents and IDEXX kit products (collectively, “Kits”) to conform to IDEXX published specifications, when used and stored under conditions specified by IDEXX and given normal, proper and intended usage, until the expiration of their stated shelf life, or, if none is stated, for one year after delivery to Buyer. Buyer understands and acknowledges that no diagnostic product can warrant 100% accuracy. IDEXX does not warrant uninterrupted or error-free operation of Kits. During the applicable warranty period IDEXX will, at no additional charge, replace a nonconforming Kit with a new product, and IDEXX will return such product to Buyer, at IDEXX’s cost.|
IDEXX Equipment Warranty: IDEXX warrants IDEXX instruments, analyzers and spare parts (collectively, “Equipment”) to conform to IDEXX published specifications, when used and stored under conditions specified by IDEXX and given normal, proper and intended usage, for the greater of one year after delivery to Buyer, or completed installation if applicable, or as stated on IDEXX’s order form/sales receipt. Buyer understands and acknowledges that no diagnostic product can warrant 100% accuracy. IDEXX does not warrant uninterrupted or error-free operation of Equipment. IDEXX does not warrant expendable or incidental 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 IDEXX provides on an "as is" basis unless otherwise expressly agreed in writing by IDEXX. During the applicable warranty period IDEXX will, at no additional charge, at IDEXX’s option, either repair nonconforming Equipment with new parts or serviceable used parts that are equivalent or superior to new parts in performance, or replace nonconforming Equipment with a new product or with a serviceable used product that is functionally equivalent or superior to a new product in performance, and IDEXX will return such product to Buyer, at IDEXX’s cost. IDEXX’s warranty on replacement parts and product repairs extends for the remainder of the applicable warranty period.
IDEXX Software Warranty: IDEXX warrants the two most current release versions of IDEXX software licensed to Buyer (together with any related documentation, “Software”) to perform substantially in accordance with our published specifications for 90 days after delivery to Buyer. Buyer understands and acknowledges that no diagnostic product can warrant 100% accuracy. IDEXX does not warrant uninterrupted or error-free operation of its Software. IDEXX does not warrant third-party products, such as non-IDEXX software; all of which we provide on an "as is" basis unless otherwise expressly agreed in writing by IDEXX. IDEXX does not warrant any software patch, update, upgrade, modification or other enhancement provided by IDEXX beyond the original warranty period for the Software, which begins with Buyer’s initial license from IDEXX. IDEXX does not warrant connectivity of IDEXX Equipment or Software with non-IDEXX practice management systems or performance of diagnostic results data sharing with non-IDEXX practice management systems. During the applicable warranty period IDEXX will, at no additional charge, use reasonable commercial efforts (i) to provide modifications to any nonconforming Software to attempt to make it conforming, in a time frame reasonably proportionate, in our reasonable judgment, to the severity of the problem and (ii) to provide periodic modifications that IDEXX otherwise makes available to other supported customers free-of-charge. IDEXX shall provide this support only for the two most current release versions of the software. If Buyer has a network, and if a system malfunction occurs, Buyer is responsible for contacting Buyer’s network support provider first to determine that the issue is not due to network problems, before contacting IDEXX for Software support. IDEXX’s warranty on Software that IDEXX modifies in an attempt to make it conforming extends for the remainder of the warranty period applicable to the original Software.
How to Obtain Warranty Support: Warranty support is available during normal business hours at IDEXX’s service locations, except holidays in the country from which IDEXX provides such support. Buyer must make any claim within the applicable warranty period. In case of any product malfunction, Buyer must first contact IDEXX Customer Support by telephone at the number provided in IDEXX’s product documentation. IDEXX’s service personnel will guide Buyer to attempt to correct reported problems itself. If Buyer wishes to receive electronic support for Equipment or Software for which IDEXX offers such support, Buyer must maintain an electronic link-up with IDEXX as directed from time to time by IDEXX. IDEXX have no obligation to provide on-site service. If it is necessary to return the product for examination, Buyer must do so, at IDEXX’s cost, to IDEXX’s designated facility. Before Buyer returns any applicable Equipment or Software product, Buyer must perform a full system backup of his data. IDEXX must issue Buyer a Return Authorization Number before any return in accordance with Article 7. If the product is nonconforming, IDEXX will return the repaired/replaced product to Buyer, at IDEXX’s cost, in accordance with IDEXX’s warranty, as described above. If IDEXX determines that the reported problem is not covered by IDEXX’s warranty or any warranty rights granted to Buyer by applicable law, Buyer must reimburse IDEXX for the cost of returning the product to Buyer, and IDEXX will attempt to repair/replace the product at Buyer’s cost, at IDEXX’s then-standard rates for such work, or return it as Buyer instructs and at Buyer’s cost. All exchanged parts and products become property of IDEXX.
Buyer’s Remedies: To the maximum extent permitted by applicable law, IDEXX’s exclusive liability and Buyer’s sole remedy for non-conformity or breach of any warranty shall be replacement of a nonconforming Kit, repair or replacement of nonconforming Equipment, or modification of nonconforming Software that does not meet IDEXX’s warranty. To the maximum extent permitted by applicable law, if after reasonable efforts IDEXX is unable to repair or replace a nonconforming product (or to make software conforming), Buyer’s sole remedy and IDEXX’s exclusive liability is either a reduction of the purchase price or license fee paid to IDEXX for the product, or a refund of such purchase price or license fee (minus depreciation for use on the basis of straight line depreciation for three years) upon Buyer’s return (at IDEXX’s cost) of the subject product(s). Buyer may contact IDEXX’s customer service telephone number in IDEXX’s invoice or product instructions for further warranty information.
Buyer’s Obligations: Buyer must take reasonable care of products, maintain them in a clean and appropriate environment and in the case of Equipment carry out the routine maintenance recommended by IDEXX in the applicable user guide, instructions or other documentation or otherwise communicated to Buyer from time to time. Buyer must provide reasonable supporting data to help identify reported problems. Buyer must promptly install new release versions of Software that IDEXX may periodically send Buyer, and Buyer must upgrade Buyer’s operating system software as IDEXX may periodically recommend. IDEXX is not liable for loss of Buyer’s data; IDEXX strongly recommends that Buyer regularly performs a system backup on applicable Equipment and Software products and archives Buyer’s data to minimize loss in case of a malfunction.
Exclusions for Improper Use, Etc.: IDEXX does not warrant the performance of IDEXX's products if Buyer uses them other than in strict accordance with IDEXX's product instructions, if users are not trained, if Buyer uses them on or in conjunction with products or services not provided and configured by IDEXX, or if Buyer installs any software applications on Buyer’s products other than those applications that IDEXX provides Buyer. FAILURE TO USE ONLY IDEXX’S AUTHORIZED PRODUCTS OR SERVICES IN OR ON IDEXX PRODUCTS VOIDS IDEXX’S WARRANTY OBLIGATIONS TO BUYER. IDEXX's warranty does not cover damage resulting from any causes external to IDEXX's 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 IDEXX's products; computer viruses, spyware, malware, worms or other harmful programs; or repairs or modifications made by anyone other than IDEXX or IDEXX's authorized service providers. IDEXX will repair normal wear-and-tear damage to Equipment only to the extent required for proper functioning of Equipment and subject to payment for repair at IDEXX's then current rates; cosmetic damage is not covered.
Disclaimer of Additional Warranties: EXCEPT AS STATED IN THESE CONDITIONS, IDEXX AND IDEXX’S LICENSORS MAKE NO OTHER WARRANTY, REPRESENTATION OR CONDITION, AND NO OTHER TERM IS INCLUDED, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND IDEXX EXPRESSLY EXCLUDES WARRANTIES RELATING TO MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY WITH DESCRIPTION OR SAMPLE, CARE AND SKILL, OR NONINFRINGEMENT. IDEXX does not assume, nor does IDEXX authorize any employee, agent, distributor or other person to assume for IDEXX, any other liability in connection with IDEXX's products. If Buyer qualifies as a "consumer" under applicable law, then Buyer 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 warranty. Some jurisdictions do not allow limitations on how long an implied warranty lasts or a limitation on remedies, so the above limitations may not apply to Buyer.
Article 10: Limitation of Liability
|10.1||IDEXX IS NOT LIABLE FOR FAILURE TO PERFORM UNDER THESE CONDITIONS DUE TO CIRCUMSTANCES BEYOND IDEXX'S REASONABLE CONTROL. EXCEPT AS AND TO THE EXTENT PROVIDED UNDER APPLICABLE LAW FOR LIABILITY RESULTING FROM IDEXX’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR DEATH OR PERSONAL INJURY RESULTING FROM IDEXX’S NEGLIGENCE, UNDER NO CIRCUMSTANCES WILL IDEXX OR IDEXX’S LICENSORS BE LIABLE TO BUYER OR ANY OTHER PERSON FOR LOSS OF PROFIT, USE OR OPPORTUNITY, OR FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF GOODWILL, CONTRACTS, DATA OR EQUIPMENT OR FOR BUSINESS INTERRUPTION, ARISING OUT OF THE MANUFACTURE, SALE, SUPPLY OR USE OF IDEXX’S PRODUCTS OR SERVICES OR FAILURE OR DELAY IN DELIVERING SUCH PRODUCTS OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, DELICT OR OTHERWISE, EVEN IF IDEXX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.|
|10.2||EXCEPT AS AND TO THE EXTENT PROVIDED UNDER APPLICABLE LAW FOR LIABILITY RESULTING FROM IDEXX’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR DEATH OR PERSONAL INJURY RESULTING FROM IDEXX’S NEGLIGENCE, IDEXX’S ENTIRE LIABILITY FOR A PRODUCT OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, DELICT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT BUYER PAID FOR SUCH PRODUCT OR SERVICE.|
Some jurisdictions do not allow the exclusions or limitations set out in Articles 10.1 and 10.2, so the above exclusions or limitations may not apply to Buyer. IDEXX's warranty gives Buyer specific legal rights, and Buyer may also have other rights under law applicable to Buyer.
Article 11: Limitation of Liability
|11.1||If IDEXX provides Buyer a software license under which IDEXX is the licensor with respect to particular software with Buyer’s initial product license, or in any documentation accompanying such product or installation routine for such software, then the provisions of such software license shall control and supersede the licenses granted to Buyer by this Article 11 otherwise, this Article 11 applies to software products licensed hereunder. Software that IDEXX provides is licensed to Buyer, in object-code version only, on a nonexclusive basis for Buyer’s 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 these Conditions. Without prejudice to any other rights, IDEXX may terminate Buyer’s software license if Buyer fails to comply with the terms of these Conditions. IDEXX or IDEXX's licensors or suppliers own all title to and copyrights in software and any copies. Buyer agrees to treat any software patch, update, upgrade, enhancement or other modification that IDEXX may provide as “software” under these Conditions and to use them only as permitted by these Conditions. Buyer may use the software only on a single computer. Buyer may make one copy of the software solely for backup purposes. Buyer may permanently transfer Buyer’s copy of the software provided that Buyer promptly notifies IDEXX of the recipient’s name and address, Buyer retains no copies, and the recipient agrees in writing to the assignment and these Conditions (however, the benefit of IDEXX's warranty shall not extend to Buyer’s transferee).|
|11.2||Software is for Buyer’s internal purposes only, and Buyer agrees not to use it for the benefit of any other person or to permit any other person to use it (including on a time-sharing, service bureau or other basis), or for developing or modifying application programs, written materials or other products, or running any applications other than IDEXX's software. Buyer agrees not to modify, enhance, reverse engineer, decompile, disassemble, or otherwise change or supplement the software; provided, that if reproduction of the code and translation of its form are necessary to obtain the information required to achieve the interoperability of the software products with other programs in the sub-Saharan Africa Area, Buyer shall inform IDEXX in writing accordingly and IDEXX shall then notify Buyer within twenty (20) business days from receipt of Buyer’s request that: (i) IDEXX will perform the work in order to achieve such interoperability and charge Buyer a reasonable expense allowance for such work, or (ii) Buyer shall be entitled to undertake those actions, but only to the extent required to achieve the interoperability of the software products with other programs.|
|11.3||Except as provided in the first paragraph of this Article 11, Buyer agrees not to cause or permit disclosure, copying, display, loan, publication or other dissemination of such software, in whole or in part, to any third party without IDEXX's prior written consent; and Buyer shall limit use of and access to software to such of Buyer’s employees as are directly involved in its use. Buyer 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 these Conditions if Buyer took such action itself. Notwithstanding the foregoing, with respect to any “open source code” or “free software” that is incorporated in IDEXX software and which IDEXX has modified: (1) to the extent expressly required by IDEXX's licensors IDEXX permits reverse engineering of such code, for the limited purposes required by such licensors and for no other purpose; and (2) to the extent expressly required by IDEXX's licensors IDEXX will provide Buyer a machine readable copy of the source code to such software components upon Buyer’s written request.|
|11.4||Certain IDEXX Equipment and Software has a communication protocol that allows the sharing of diagnostic results data with many practice management systems offered by other providers. IDEXX is not responsible for the installation of any wiring or connection between Equipment or Software and Buyer’s practice management system. Buyer may be required to purchase additional hardware or software in order to share diagnostic results data from IDEXX Equipment with Buyer’s practice management system. The cost of such additional hardware or software is in addition to the cost of the IDEXX analyzers. IDEXX does not warrant connectivity with non-IDEXX practice management systems or performance of diagnostic results data sharing with non-IDEXX practice management systems.|
Article 12: Data Collection and Use
IDEXX collects Buyer’s personal information to provide Buyer with the equipment and accessories that Buyer has requested; to otherwise fulfill IDEXX's obligations under and administer orders and contracts made with IDEXX; to arrange for and process the payment of amounts owed by Buyer in connection with orders and contracts made with IDEXX (or refunds owed by IDEXX to Buyer); and to advance or defend IDEXX's legal rights. IDEXX does not share Buyer’s data with third parties unless required to do so by law, or as reasonably necessary to fulfill or administer orders or contracts made with IDEXX. In addition, if Buyer opts for direct debit as its payment method, IDEXX will share certain personal information with Buyer’s financial institution in order to arrange for payment. Because IDEXX is a multi-national company, IDEXX may process Buyer’s personal information in other countries, including the United States and other countries outside the sub-Saharan Africa Area which may not provide for a similar level of data protection as within the sub-Saharan Africa Area. IDEXX may also use Buyer’s information to send Buyer educational information, information about upcoming seminars, information about new tests that become available, and information about products and services offered by IDEXX and IDEXX's partners that IDEXX think may be of interest. If Buyer does not want to receive unsolicited commercial information please contact IDEXX by telephone at + 27 11 4669271 or email at [email protected].
Article 13: Indemnity
Without prejudice to IDEXX's other rights in terms of these Conditions, Buyer hereby indemnifies and holds IDEXX harmless from or against any loss, liability, damage, expense, cost, fine, penalty and/or any claims against IDEXX, which may be suffered or incurred by, imposed on or brought against IDEXX, as a result of or in connection with the products, to the extent to which such loss, liability, damage, expense, cost, fine, penalty and/or any claims arise directly as a result of a claim in accordance with the Consumer Protection Act No 68 of 2008, as amended from time to time.
Article 14: Compliance with Laws; Export Law Assurances
Buyer agrees to deal with the products in conformity with applicable laws of the United, States, of the Republic of South Africa and of the jurisdictions in which the products were obtained or are used. Buyer is required to obtain all permits, licenses and other documentation required in connection with the purchase, installation, sale, export, shipment or use of any products.
Buyer shall not divert or transship any products, or permit anyone else to do so, other than within the country of destination specified in IDEXX’s shipping order or member states of the sub-Saharan Africa Area. In particular, but without limitation, IDEXX products may not be exported or re-exported (a) into, or to a national, resident or entity of any U.S. embargoed countries or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s list or Entity list. By using IDEXX products, Buyer represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list.
Article 15: No Buyer Assignment
Except as provided in the Article 11 regarding Software, Buyer may not assign any duties, rights or claims under these Conditions without IDEXX’s prior written consent, and any such attempted assignment is void.
Article 16: Severability
If any of the provisions of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the validity and enforceability of the remaining provisions shall not be affected or impaired thereby, and Buyer and IDEXX agree to replace such invalid or unenforceable provision with an enforceable and valid arrangement that, in its economic effect, is as close as possible to the invalid or unenforceable provision.
Article 17: Governing law, Venue, Arbitration
THE RESPECTIVE RIGHTS AND DUTIES OF BUYER AND IDEXX, AND ALL RELATED DISPUTES BETWEEN THE PARTIES UNDER OR RELATING TO THESE CONDITIONS, WHETHER IN CONTRACT, DELICT OR OTHERWISE, ARE GOVERNED BY AND SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE NETHERLANDS, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF. IDEXX AND BUYER EXPRESSLY CONFIRM THE APPLICATION TO THESE CONDITIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
ANY DISPUTE ARISING IN CONNECTION WITH THESE CONDITIONS, OR ANY OTHER AGREEMENT RESULTING FROM THESE CONDITIONS, OR THE BREACH, TERMINATION OR INVALIDITY HEREOF OR THEREOF, SHALL BE FINALLY SETTLED IN ACCORDANCE WITH THE RULES OF ARBITRATION OF THE NETHERLANDS ARBITRATION INSTITUTE (NEDERLANDS ARBITRAGE INSTITUUT), AS AT PRESENT IN FORCE, BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH THE SAID RULES (EXCEPT THAT IDEXX MAY BRING AN ACTION FOR AN INJUNCTION OR SIMILAR EQUITABLE RELIEF AGAINST BUYER IN ANY PROPER JURISDICTION). THE ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN ENGLISH, AND ALL DOCUMENTS DELIVERED TO OR BY THE ARBITRATOR SHALL BE IN ENGLISH. THE ARBITRATOR SHALL DECIDE IN ACCORDANCE WITH THE RULES OF LAW. THE PLACE OF ARBITRATION SHALL BE AMSTERDAM, THE NETHERLANDS.
Both parties waive any claims against each other for multiple, punitive or exemplary damages in any legal actions relating to these Conditions. Under no circumstances shall the arbitrator be authorized to award multiple, punitive or exemplary damages, whether under statutes permitting such damage awards or otherwise, and any purported award of such damages shall be beyond the arbitrator’s authority, void, and unenforceable. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction, subject only to revocation on grounds of fraud or clear bias on the part of the arbitrator. The prevailing party in any such legal actions shall be entitled to an award of its reasonable legal fees and costs. Each party waives any objection that it may now or hereafter have to the venue of any such proceeding or that such proceeding is brought in an inconvenient forum.
Article 18: Governing Language
Any translation of these Conditions is made for local requirements only. In the event of a dispute between the English and any non-English versions, the original English version of these Conditions shall control all questions of interpretation with respect thereto. Any other documents delivered or given pursuant to these Conditions, including notices, may be in English.
Rev 2013 October 15