IDEXX AUSTRALIA & NEW ZEALAND TERMS AND CONDITIONS OF SALE
Unless otherwise expressly agreed in writing, all transactions by IDEXX Laboratories Pty Limited ABN 31 063 154 352 and any related body corporate identified on the front of this 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 under which we are the licensor) 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 to the extent of any conflict 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 replace 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 IDEXX Reference Laboratory customers, payment terms are net the 21st day of the month following the date of statement / invoice. For all other customers (Veterinary In-House Diagnostics, Pharmaceuticals, Telemedicine, Livestock/Poultry, Water Microbiology and Dairy testing), payment terms are net 21 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. All payments and interest are payable in Australian Dollars (or New Zealand Dollars, for New Zealand sales). 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.
GST. Notwithstanding any other provision of these terms and conditions, if we make any supply under or in connection with these terms and conditions in respect of which GST is payable, the amount otherwise payable by you will be increased by the GST payable for that supply (the "additional amount") and the additional amount shall be payable at the same time and in the same manner as the consideration for the relevant supply is otherwise payable under these terms and conditions. We will provide you with a tax invoice in respect of any supply referred to in this paragraph. For the purposes of this paragraph, "GST" means in respect of any supply made in Australia the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (C'th) and in respect of any supply made in New Zealand means the Goods and Services Tax Act 1985 (NZ), and other terms used in this clause have the meanings provided in the applicable statute.
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 authorisation. Authorised returns are for credit only. Some products are subject to restocking fees.
3. LIMITED WARRANTY. Notice Required by Law: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
The rights set forth in the preceding paragraph may be lawfully limited in respect of goods or services not ordinarily acquired for personal, domestic or household use or consumption. In that event our limited warranty set forth below applies.
Who is Covered:
The benefit of this limited warranty extends to you only if you are the 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 non software 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 unless otherwise agreed by us in writing. 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. We do 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.
Our Limited Warranty:
During the applicable limited warranty period we will, at no additional charge, (1) for non software 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, use reasonable commercial efforts to 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 non-conformity or 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 (minus depreciation for use, on the basis of straight-line depreciation for three years) upon your return of 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 Authorisation 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.
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 minimise 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, spyware, malware, 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 non infringement. We do not assume, nor do we authorise any employee, agent, distributor or other person to assume for us, any other liability in connection with our products.
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 but not limited to loss of revenue, loss of business, loss of or damage to goodwill, loss of expected profits or savings, loss of data or equipment or for business interruption or any expectation benefit, or liability to any third party, 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, equity or otherwise, even if we knew or should have known 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.
IMPORTANT NOTE: In the event that any supply of goods or services under or incidental to these terms and conditions constitutes a supply of goods or services to a consumer as defined in Schedule 2 to the Competition and Consumer Act 2010 (C’th) or the Consumer Guarantees Act 1993 (NZ), or any other national, State or Territory legislation (“the Acts”) nothing contained in these terms or conditions excludes, restricts or modifies any condition, warranty or other obligation in relation to these terms and conditions and the goods and services to be supplied hereunder which pursuant to the Acts or any of them is applicable or is conferred on you where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to: in relation to goods: the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or the repair of the goods or payment of the cost of having the goods repaired; and in relation to services the supplying of the services again or the payment of the cost of having the services supplied again, as in each case we may elect.
5. Software License.
Software that we provide is licensed to you, in object-code version only, 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. Our software license to you is subject to and conditioned upon your compliance with the terms of 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, enhancement or other modification 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 assignment and these Terms and Conditions (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 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 our software. 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.
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. We are not responsible for the installation of any wiring or connection between IDEXX equipment or software and your practice management system. You may be required to purchase additional hardware or software in order to share diagnostic results data from IDEXX equipment with your practice management system. The cost of such additional hardware or software is in addition to the cost of the IDEXX analyzers. We do not warrant connectivity with non-IDEXX practice management systems or performance of diagnostic results data sharing with non-IDEXX practice management systems.
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 tranship 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 the transactions contemplated hereby, and all related disputes between the parties under or relating to this agreement, whether in contract, tort or otherwise, shall be governed by the laws of the State of New South Wales (or New Zealand, for New Zealand sales), without giving effect to the principles of the conflict of laws thereof, and any related legal actions must be brought in the court of appropriate jurisdiction in the State of New South Wales (or in New Zealand, for New Zealand sales), which shall have exclusive jurisdiction (except that either of us may bring an action for an injunction or similar equitable relief against the other in any proper jurisdiction). You hereby waive any claim of lack of jurisdiction or inconvenient forum. 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 (Federal Acquisition Regulation) § 12.212(a) and/or DFARS (Defense Federal Acquisition Regulation Supplement) § 227.7202-1(a).
Rev 29th February 2012