SmartFlow Terms and Conditions of Sale

(Revision February 2019)

These Terms and Conditions ("Terms") govern the use and delivery of the SmartFlow Services (as defined below) made available by the IDEXX entity that invoices you and its affiliates (“IDEXX”) (“Customer”) pursuant to any IDEXX order form or subscription (an “Order”), or as part of any free trial, each such Order incorporating these Terms and the One IDEXX Master Terms and Schedules (for North American Customers) or the IDEXX General Terms and Conditions of Sale for Europe, Middle East and Africa (for EU Customers) (each, the “Master Terms”), and together with the Terms and Master Terms creating one integrated agreement.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. USE OF THE SERVICES

1.1 Services and Users. IDEXX will provide to Customer access to the services listed in the Order (the “Services”) in accordance with the terms and conditions of these Terms and the Order. Subject to Customer’s compliance with the Terms and the Order, IDEXX grants the Customer during the Services Period a non-exclusive, limited right for the Users to use the Services solely for Customer’s internal business operations. Customer will be responsible for the Users’ compliance with these Terms and the Order. “Services Period” means the service period defined in the Order unless the Order is terminated earlier in accordance with these Terms and the Order. “Users” means those employees, consultants, agents or contractors of Customers that are authorized by Customer to use the Services, as further defined in the Order, and have received proper training and supervision from the Customer in using the Services.

1.2 Subscription and Facilities. IDEXX will provide SmartFlow services through a registered account(s)/subscription(s). The Service is limited to one account per facility. A facility is defined as an entity that functions primarily separate from others even if part of a centralized business. Separate physical locations are considered separate facilities. If Customer has multiple locations, it will require additional registered accounts for each facility. If Customer operates multiple facilities at the same physical location but they function separately, (i.e. check-in, patient management, most staffing, record-keeping, financials, etc., are handled independently) then it is required to have separate accounts/subscriptions for each facility.

1.3 Specifications. The Order will describe the specifications for the Services. IDEXX will have the right, at its sole discretion, to make changes to these specifications during the Services Period provided that any such changes do not materially reduce the level of performance, functionality or availability of the Services during the applicable Services Period. Customer will be responsible for ensuring that Customer meets the hardware and software specifications required for the use of the Services which will be set out in the Order.

1.4 Onboarding and Implementation. IDEXX will provide the Customer with various resources to setup and prepare to “Go Live” and begin using the Services in their facility(s). This service is called “Onboarding”. IDEXX will assist the Customer and their employees to understand and complete this Onboarding process and all the required tasks. The Customer is responsible to complete these tasks in the agreed upon time frame. Onboarding is comprised of remote meetings between IDEXX staff and the Customer’s staff as well as online training, email notifications and other means. IDEXX may also offer an “Onsite Implementation” in which IDEXX staff visit the Customer’s facility to assist with the final Onboarding processes. The Customer understands that these processes require compliance on its part. These required expectations include:

  1. The Customer must assure that a minimum of 90% or its staff that will use the Services will complete the provided online training before their facility can “Go Live” and gain full access to the Services.
  2. Online Onboarding meetings – The Customer must perform all required tasks prior to these scheduled meetings. The list of these required tasks will be available to Customer via an online checklist. This checklist must be completed 100% before any remote or Onsite Implementation can take place.
  3. All hardware (e.g. computers, iPads and television/monitors, etc.) must be onsite, setup (i.e. computers and iPads configured, and televisions connected and mounted, etc.) and functional no less than 2-weeks before the agreed upon “Go Live” date.
  4. The Customer will provide a way to communicate directly with all staff that will be using the Services to give updates, training, reminders, surveys and other communications so that all employees of the Customer are well informed and prepared.
  5. The Customer will be fully responsible for the compliance of its Users with all required processes, training, and tasks of the Onboarding process.
  6. Included in the cost of Onboarding, IDEXX staff will assist the Customer with the basic set up and troubleshooting of the Customer’s IT infrastructure for compatibility with the Service. Should any circumstance require specialized IT knowledge to overcome barriers or difficulties, the Customer will be responsible for the hourly cost of a 3rd party IT specialist outsourced by IDEXX and/or provide this service with their own IT support. Failure to do so may limit IDEXX’s ability to provide all product functionality and will be the sole responsibility of the Customer.
  7. In the event that the Customer has arranged an Onsite Implementation, once the dates are agreed upon, failure by the Customer to complete any of the above requirements will result in the need to reschedule IDEXX staff’s visit to the Customer’s facility. If such a cancellation occurs:
    1. No refund will be available for the cost of the Onsite Implementation.
    2. The Customer will have to reschedule the Onsite Implementation to the next available time and may not be able to utilize the service until that time. This will not alter the term of this agreement.
    3. The Customer will be responsible for paying the cost of any cancelled travel or accommodations expenses incurred by IDEXX. The Customer will be invoiced for any such. In such cases, IDEXX must provide the Customer with receipts and an invoice documenting these expenses. The invoice for cancelled travel and accommodations must be paid in full prior to rescheduled the Onsite Implementation.
    4. Failure of the Customer to complete the required tasks prior to a rescheduled Onsite Implementation will result in the same process described above.
    5. In the event of three (3) cancellations due to the Customer’s failure to complete the required Onboarding tasks, they shall forfeit the full Onsite Implementation fee.

1.5 Use Limitations. The Customer will not, and will ensure that the Users will not: (a) reverse engineer, modify, disassemble, decompile, reproduce, publish, adapt, or make derivative works of, the Services or any part thereof, (b) license, rent, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, or commercially exploit the Services; (c) make available the Services to any third party except as permitted by these Terms and the Order; (d) use the Services other than in compliance with applicable laws; (e) violate applicable laws; (f) use the Services to cause damages or injury to anyone (including patients) or any property, or harass anyone; (g) publish any material that is harassing, defamatory, obscene, unlawful or that violates the rights of any third party (including privacy rights and intellectual property rights); (h) use the Services to send unsolicited commercial communications (including bulk emails); (i) introduce in the Services or any IDEXX system used in connection with the Services any virus, Trojan horse, malware, worm or any other harmful programming routine or code; (j) engage in any vulnerability scanning, penetration test of the Services or password cracking; and (k) access or use the Services to build or support products or services directly or indirectly competitive to IDEXX. The Customer will only have the right to access the Services in accordance with Section 1.1.

1.6 Customer Security. The Customer will be responsible for: (a) the security of all passwords associated with its accounts; and (b) any security vulnerabilities, and the consequences of such vulnerabilities, arising from the Customer’s Content, (including any viruses, Trojan horses, malware, worms or other harmful programming routines or codes contained in the Customer’s Content), or from the Customer’s use of the Services.

1.7 Service for Informational Purposes. General information relating to various medical conditions and their treatment may be included in portions of the Services. Such information is provided for informational purposes and for your general interest only. It is not intended to be a substitute for advice provided by a qualified professional. You should not use the information contained herein for diagnosing or treating a health problem or disease. Nothing included in the Services should be construed as the giving of advice or the making of a recommendation and the Services should not be relied on, in any manner whatsoever, as the basis for any decision or action.

1.8 Hardware Warranty. Any SmartFlow Hardware identified on any Order (“Hardware”) may be subject to third party manufacturer warranties. IDEXX hereby transfers to the Customer any such Hardware warranty.

1.9 Support. IDEXX will provide the support services as set forth in Schedule A.

2. OWNERSHIP RIGHTS AND RESTRICTIONS

2.1. As between the parties, the Customer retains all ownership and intellectual property rights in and to the Customer Content (defined below). In no event will IDEXX be liable for any issues that arise directly or indirectly from the Customer Content. The Customer hereby grants IDEXX the right to (a) host, use, extract, process, display and transmit the Customer Content to provide the Services pursuant to and in accordance with these Terms and the Order; (b) to use Customer Content for IDEXX’s internal business purposes, (c) for such other purposes as the Customer may consent to in writing from time to time; provided that in no event will IDEXX share or disclose any personally identifiable information of Customer or User with third parties without Customer’s prior written consent. The Customer will have sole responsibility for the reliability, accuracy, integrity, legality, quality, and appropriateness of the Customer Content, and for obtaining all rights and consents from any third party related to the Customer Content required by IDEXX to perform the Services.

Customer Content” means any data, text, audio, video, photograph, tool and any other content whatsoever, in any format, provided by Customer or any User that is run on or through the Services, or stored in or using the Services.

2.2. Subject to the limited access rights granted in these Terms to the Customer, IDEXX and its licensors own and will continue to own all right, title and interest, including all intellectual property rights, in and to the Services, and any modification, enhancement or improvements thereof, and anything made available, developed or delivered by or on behalf of IDEXX

2.3. Notwithstanding any other provision of this Agreement, IDEXX will have the right to compile statistical data and other information related to the performance, operation and use of the Services, and use any data from the Services in aggregated form for operations management, security, or research or development purposes or to perform statistical analysis (collectively the “Services Data”). IDEXX will have the right to make such Services Data publicly available provided that it does not incorporate any of the Customer Content. IDEXX will own all right, title and interest, including all intellectual property rights in such Services Data.

2.4. Third party materials and/or services provided by third parties may be made available through the Services. In no event will IDEXX be liable for any issues that arise directly or indirectly from such third party materials or services.

3. USE OF DATA AND DATA PROTECTION

3.1 “Personal Data”. “Personal Data” means any data relating to an identified or identifiable living natural person. IDEXX considers proper processing of Personal Data to be highly important and has adopted the privacy policy which can be found at www.idexx.com. We do not share your Personal Data with third parties except in an aggregated and/or anonymized format, and except as provided in our Privacy Policy and, with respect to EU Personal Data, the Data Protection Agreement, or otherwise with your express consent.

3.2 EU Data Protection Agreement. The arrangements between the parties relating the processing and protection of EU Personal Data are set forth in the Data Protection Agreement found at www.idexx.eu/gdpr. As described in the Data Protection Agreement, IDEXX will use aggregated anonymized Personal Data provided through the Service to perform market analysis in order to anticipate our customers’ needs, gain know-how which will benefit veterinary practices in general, and to provide professional services and medical education to the veterinary industry. You agree that such aggregated anonymized Personal Data and any non-Personal Data stored, exchanged or processed by IDEXX through the Service may be provided to third parties without your prior consent.

4. MISCELLANEOUS

4.1. If there are conflicts between the provisions of these Terms, the Master Terms and any Order, the following order of precedence shall apply: (i) these Terms, (ii) the Master Terms, and (iii) any Order. This Agreement may be modified only by an amendment provided to you by IDEXX, or upon the mutual written consent of both parties. When we make modifications, we will notify you in advance, and your further use of the Services will indicate your acceptance of the modifications.

Schedule A

SUPPORT

IDEXX will provide the Client:

The support provided under these Terms does not include services provided with respect to the following matters:

(i)    any problem resulting from the misuse, improper use, alteration, or damage of the Services;

(ii)    any problem caused by modifications in any version of the Services not made or authorized by IDEXX; or

(iii)    any problem resulting from the Client combining or merging the Services with any hardware or software not supplied by IDEXX, or not identified by IDEXX as compatible with the Platform Services, Systems.

IDEXX may occasionally have to interrupt services, including for purposes of upgrades and maintenance to the Services, in which case IDEXX will attempt to announce the scheduled downtime via e-mail to the Client's designated e-mail address.