IDEXX Limited Warranty and Limitations on Liability

• Distributor is permitted to provide a warranty only to end-users of Products sold or sub-licensed directly by Distributor pursuant to this Agreement (or by any sales agent or sub-distributor of Distributor authorized by IDEXX). Distributor will not make any warranty, representation or guaranty with respect to the Products that is in addition to the limited warranty specified in this Section.
• Distributor will take all possible and necessary actions permitted or required by the laws of the Territory to ensure that IDEXX's limits of responsibility as set forth in this Section 6 are valid and enforceable against whomever they are applicable. Distributor will immediately inform IDEXX as soon as Distributor becomes aware of any liability or quality claims by anybody with respect to the Products.
• IDEXX products and services are for professional use only, by trained personnel. IDEXX’s limited warranty is not applicable to any person or entity, other than as set forth in this Section 6.
• IDEXX warrants to Distributor that nonsoftware Products shall conform to IDEXX’s published specifications, when 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 Distributor's end-user customers, unless a shorter warranty or shelf-life period is specified in any limited warranty or on any packaging accompanying any such Product; and that the two most current release versions of IDEXX software Products (together with any related documentation, "Software") sub-licensed by Distributor to an authorized end-user customer shall perform substantially in accordance with IDEXX’s published specifications for 90 days after delivery to Distributor's customers. Distributor, for itself and its customers, acknowledges that no diagnostic product can warrant 100% accuracy. IDEXX does not warrant uninterrupted or error-free operation of Products.
  IDEXX does 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 are provided on an "AS IS" basis. Third-party product suppliers may provide their own warranties. 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 the initial sub-license by distributor to an authorized end-user. Distributor represents and warrants that whenever it sells Products to a customer, such customer shall have agreed in writing that all legal and contractual defenses that Distributor may invoke may equally be invoked by IDEXX.

During the applicable limited warranty period IDEXX will

• for nonsoftware Products, at IDEXX’s 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 IDEXX’s option with a serviceable used Product that is functionally equivalent or superior to a new Product in performance.
• for Software Products, use commercially reasonable efforts to provide modifications to any nonconforming Software to attempt to make it conforming. IDEXX’s warranty on replacement parts and product repairs extends for the remainder of the applicable warranty period. IDEXX’s exclusive liability and Distributor’s 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 IDEXX’s limited warranty.
  To the extent permitted by applicable law, if after reasonable efforts IDEXX is unable to replace or restore a nonconforming Product to good working order (or modify a Software Product to make it conforming), Distributor’s sole remedy and IDEXX’s exclusive liability is a refund of the purchase price or license fee paid to IDEXX for the Product.

• Warranty support is available during IDEXX’s normal business hours at IDEXX’s service locations, except holidays. Distributor must make any claim within the applicable warranty period. IDEXX has no obligation to provide on-site service. Before accepting any return from a customer, Distributor shall advise its customer to perform a full system back-up of the customer’s data. At IDEXX’s option, Distributor must return the Product, transportation and insurance prepaid, to IDEXX’s designated facility for examination. IDEXX must issue Distributor a Return Authorization Number before any return. If the Product is nonconforming, IDEXX will return the repaired/replaced (or modified, in the case of Software) Product to Distributor, transportation and insurance prepaid, in accordance with IDEXX’s limited warranty, as described above. If IDEXX determines that the reported problem is not covered by IDEXX’s warranty, IDEXX will advise Distributor and attempt to repair/replace the Product at Distributor’s cost, at IDEXX’s then-standard rates for such work, or return it as Distributor instructs and at Distributor’s sole expense. All exchanged parts and Products become IDEXX’s property.
• For Software Products, IDEXX shall use reasonable commercial efforts to attempt to resolve nonconformities in a time frame reasonably proportionate, in IDEXX’s judgment, to the severity of the problem, and to provide periodic modifications that IDEXX otherwise makes available to supported end-user customers free-of-charge. IDEXX shall provide this support only for the two most current release versions of the Software. If Distributor’s customer has a networked installation, and if a system malfunction occurs, Distributor should advise its customer to contact the customer’s network support provider first to determine that the issue is not due to network problems, before contacting Distributor for IDEXX product support.
• Distributor’s customers must take reasonable care of the Products, maintain them in a clean and appropriate environment and carry out the routine maintenance recommended by IDEXX in the applicable user guide, instructions or other documentation or otherwise communicated from time to time. Distributor must provide reasonable supporting data to help identify reported problems. Distributor’s customers must promptly install new release versions of Software that IDEXX may periodically send to Distributor or such customer, and Distributor’s customers must upgrade their operating system software as IDEXX may periodically recommend. Without limiting the generality of Section 6(k) below, IDEXX is not liable to Distributor or its customers for loss of data; IDEXX strongly recommends that Distributor’s customers regularly perform a system back-up on applicable Products and archive their data to minimize loss in case of a malfunction.
• IDEXX does not warrant the performance of Products if they are used other than in strict accordance with IDEXX product instructions, if they are used on or in conjunction with products or services not provided and configured by IDEXX, or if any software applications are installed on Products, other than those applications that IDEXX provides. FAILURE TO USE ONLY IDEXX AUTHORIZED PRODUCTS OR SERVICES IN OR ON IDEXX PRODUCTS VOIDS IDEXX’S WARRANTY OBLIGATIONS. IDEXX’s limited warranty does not cover damage to Products resulting from any causes external to the Products (which, if reparable, will be repaired at Distributor’s expense), such as negligence or improper storage, handling, shipping or use; casualty; external electrical fault; failure to follow packing or shipping instructions; use of unauthorized products in conjunction with Products; computer viruses, worms or other harmful programs; or repairs or modifications made by anyone other than IDEXX or its authorized service providers. IDEXX will repair normal wear-and-tear damage only to the extent required for proper functioning of equipment; cosmetic damage is not covered.
• EXCEPT AS STATED IN THIS SECTION 6, AND TO THE FULLEST EXTENT PERMITTED BY LAW, IDEXX MAKES 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. IDEXX does not assume, nor does IDEXX authorize any employee, agent, distributor, including without limitation the Distributor, or other person or entity to assume for IDEXX, any other liability in connection with the Products.
• IDEXX is not liable for failure to perform under IDEXX’s limited warranty due to circumstances beyond IDEXX’s reasonable control. UNDER NO CIRCUMSTANCES WILL IDEXX BE LIABLE TO DISTRIBUTOR OR ANY OTHER PERSON FOR DAMAGES DUE TO DETERIORATION DURING PERIODS OF STORAGE OR DUE TO NEGLIGENT HANDLING, BY DISTRIBUTOR OR DISTRIBUTOR’S CUSTOMERS. UNDER NO CIRCUMSTANCES WILL IDEXX BE LIABLE TO DISTRIBUTOR 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, CONTRACTS, DATA OR EQUIPMENT OR FOR BUSINESS INTERRUPTION, ARISING OUT OF THE MANUFACTURE, SALE, SUPPLY OR USE OF IDEXX PRODUCTS OR SERVICES OR FAILURE OR DELAY IN DELIVERING SUCH PRODUCTS OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, EVEN IF IDEXX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
• TO THE FULLEST EXTENT PERMITTED BY LAW, IDEXX’S ENTIRE LIABILITY ARISING OUT OF THE MANUFACTURE, SALE, SUPPLY, USE OR DISPOSITION OF THE PRODUCTS, OR THE SUPPLY OF ANY SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PRICE PAID BY DISTRIBUTOR FOR SUCH PRODUCT OR SERVICE.