Fluke General Terms and Conditions for Repair and Calibration Services (International)
These terms and conditions comprise the general terms and conditions under which Fluke Europe B.V. and its Affiliates provide repair and calibration services.
In these terms and conditions:
"Affiliate" means, in respect of a person, any entity that directly or indirectly through one or more intermediaries Controls or is Controlled by such person or is under direct or indirect common Control with such person.
"Control" means, in respect of an entity, the ability (whether it is legally enforceable or not) to control, whether directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, the composition of the board of directors (or other governing body) of that entity, the voting rights of the majority of voting securities of the entity, or the management of the affairs of that entity.
"Customer" means the legal or natural person who has raised a purchase order or has otherwise requested the provision of Services.
"Fluke’s Designated Service Centre" means Fluke’s premises or such other location as Fluke may designate for the provision of the Services.
"Fluke" means the Fluke legal entity which has accepted Customer’s purchase order or has otherwise agreed to deliver the Services to Customer.
"Services" means repair and/or calibration services (as applicable to Customer).
1. SERVICE PERIOD
The Services, unless provided on ad hoc basis, shall be provided during the period set out in Fluke’s service contract, unless cancelled or terminated earlier in accordance with clause 10 (CANCELLATION) or 11 (TERMINATION) of these terms and conditions.
2. SERVICE PROVISION
Save where specified otherwise in any support documentation, the Services will be provided and managed within the country or region supported by Fluke. Services in other countries and regions may be available on a limited basis and by special arrangement. Services shall be carried our at Fluke’s Designated Service Centre or at Customer’s site.
Customer shall bear the cost and risk of shipping products to and from Fluke’s Designated Service Centre. If Fluke arranges for the shipping, Fluke will invoice Customer for shipping and handling charges for each product shipped. Customer shall also pay all other costs of shipping products to and from Fluke’s Designated Service Centre where Customer is not able to provide Fluke with the necessary paperwork confirming that the products were properly imported into the country where they are located and all applicable taxes and duties have been paid.
Customer shall permit Fluke access to the relevant products at all times whenever Services are required. Customer shall ensure that user co-operates with Fluke to the extent necessary to permit the Services to be performed efficiently and without interruption. For on-site Services, Customer shall permit Fluke to use any Customer equipment or facilities that Fluke reasonably deems necessary for the performance of the Services.
Accredited and/or traceable calibrations will be performed in line with any specific requests for testing ranges or points of the Customer. If there are no such requests, then they will be performed in line with performance tests made available by the relevant manufacturer to Fluke or, if these are not made available – in line with Euramet and/or Fluke’s internal guidelines.
3. SERVICE COVERAGE
Save for products which are still within their initial warranty period or which are already covered by a Fluke service contract, products are only eligible for Services coverage when they have been inspected by an authorised Fluke service representative. Customer is responsible for identifying any performance deficiencies prior to or at the time of requesting Services coverage. The performance will, at Customer’s request, be brought up to the manufacturer’s specifications at Fluke’s then current per call rates. If a newly covered product is subsequently determined by Fluke not to meet the manufacturer’s specifications due to a pre-existing, unidentified deficiency, Customer shall either (a) cancel further Services cover for the product, or (b) request that Fluke bring the product up to the manufacturer’s specifications at the then current per call rates. Customer shall not transfer any product covered by a Fluke service contract to another site without Fluke’s prior written consent (such consent not to be unreasonably withheld).
4. SERVICE LEVELS
Fluke shall provide the Services at the service levels (if any) stated in the applicable Fluke service contract. Where no such contract applies, Fluke will provide the Services during normal business hours (excluding public holidays) for Fluke’s Designated Service Centre.
5. SERVICE CHARGES AND DISCOUNTS
The initial charges for the Services will be the charges shown on Fluke’s quotation or order acknowledgement or in the Fluke service contract and shall apply only to products specified therein. Charges for products added to the Services coverage at a later date will be those in effect at the time of addition. Where no such agreement, quotation or order acknowledgement applies, or if the charges are not specified in such document, Fluke will charge its standard charges for the service coverage or other services to be provided. Fluke Services charges are exclusive of taxes. Unless otherwise specified on Fluke’s quotation or order acknowledgement or in the Fluke service contract, the charges will be invoiced in advance. Discounts, if any, granted to Customer by Fluke for the relevant Services period may be decreased by Fluke if products are removed from Services coverage during the Services period. However no adjustments to discounts (whether upwards or downwards) shall be retroactive.
Customer’s submission of a purchase order or acceptance of Services, in response to Fluke’s quotation or order acknowledgement or the Fluke service contract, shall be deemed acceptance of these terms and conditions to the exclusion of any additional or different terms or conditions on Customer’s purchase order even if such order is expressly made conditional on Fluke’s assent to such additional or different terms.
Any taxes imposed on Fluke or which Fluke has a duty to collect in connection with the Services will appear as separate items on Fluke’s invoice. If Customer is exempt from any such charges, it is the responsibility of Customer to supply Fluke with evidence of such exemption at the time Customer places its order for Services.
Customer shall pay all amounts invoiced by Fluke in writing within thirty (30) days of the date of invoice. Unless otherwise agreed between the parties payment shall be made in the currency of the Fluke invoice. Fluke may withhold service hereunder if Customer fails to make any payment when due. Fluke will not adjust any charges for the Services if Customer fails to utilise Services coverage purchased.
Subject to any legal bars or mandatory legal limitations on interest payable for late payments, Fluke reserves the right to charge a late payment interest on overdue amounts at the monthly rate of five percent (5%) above the monthly EURIBOR (Euro Inter-Bank Offered Rate) from the date when the payment became due until the date when it was paid to Fluke.
9. REPLACEMENT PARTS, MODULES AND PRODUCTS
Parts, modules and replacement products used by Fluke for the provision of Service may be new or reconditioned to like new performance. All parts, modules and products replaced by Fluke shall become the property of Fluke.
For annual or multi-year service contracts, Customer may cancel the Services for a particular product upon ninety (90) days’ advance written notice to Fluke. No refund, credit or other adjustment in Services charges paid previously by Customer shall be made for any product which was under Services coverage up to and including the effective date of cancellation. In addition, discounts, if any, granted to Customer by Fluke for the relevant Services period will become immediately repayable to Fluke. Subject to the foregoing, Customer shall be entitled to receive, at Fluke’s option, a refund or credit for Services charges which it has prepaid.
Fluke may terminate the provision of the Services by written notice to Customer if Customer fails to pay any amount due or breaches any other material provision of these terms and conditions, provided that Customer is given written notice of such non-payment or other material breach and the non-payment or other material breach persists or is not remedied within thirty (30) days after receipt of such notice. Save where an applicable Fluke service contract provides otherwise, Fluke may also terminate the provision of the Services for convenience by giving ninety (90) days prior written notice to Customer.
Fluke warrants that the Services will be performed in a workmanlike manner and that all parts installed in the course of repair will be free from defects in materials and workmanship for a period of three (3) months from the date of Services provision. If any repair or any new or reconditioned part installed in the course of repair proves defective within the three (3) month warranty period, Fluke will correct the defective work and replace the defective part, if applicable, without charge for parts and labour. Customer must notify Fluke of the defect before the expiration of the three (3) month warranty period and make suitable arrangements for the performance of Services, failing which Customer is deemed have waived any claim. Further details of Fluke’s standard service warranty are available from Fluke’s local service representatives.
The express warranty set forth above is in lieu (to the fullest extent permitted by law) of all other warranties, express, implied, statutory of otherwise with respect to the Services and Fluke and its vendors disclaim all implied warranties of merchantability or satisfactory quality, fitness for a particular purpose or non-infringement. Fluke’s responsibility to correct its work and/or replace defective parts (as relevant) is the sole and exclusive remedy provided to Customer for breach of this warranty.
Fluke recognises that during the performance of the Services Fluke, its agents or employees, may be exposed to information of a confidential nature relating to the business or developments of Customer. Fluke agrees to hold such information in confidence for Customer to the same extent to which Fluke provides for its own information and not to disclose such information to any other person or organisation without the prior written consent of Customer.
Fluke shall not be obliged under these terms and conditions to:
(1) service any product that has been damaged, abused, overused or misused as defined by Fluke and through no fault of Fluke;
(2) service any product that has received unauthorised modification repair or service that impairs performance or impedes normal service;
(3) paint or refinish any product for cosmetic purposes;
(4) provide any application software support or any service involving application hardware;
(5) repair or replace any accessories.
At Customer’s request, such Services may be provided by Fluke but will be invoiced by Fluke at its then current rates for parts and per call service.
15. LIMITATION OF LIABILITY
Save where prescriptive laws provide otherwise, in no event shall Fluke or its vendors be liable for any indirect, special, incidental or consequential damages arising out of the Service provided hereunder, even if Fluke or the vendor had advance notice of the possibility of such damages arising.
Further, save where prescriptive laws provide for a higher minimum figure, Fluke’s liability for all claims arising out of the provision of the Services in any given calendar year shall not exceed the charges paid by Customer for the Services in that calendar year.
The foregoing limitations and exclusions of liability apply irrespective of whether damages arise in breach of contract, negligence or otherwise.
All notices required or authorised by these terms and conditions shall be given in writing and shall be deemed effective upon receipt. Notices to Customers shall be sent to the address shown in Customer’s order for Services. Notices to Fluke shall be sent at the address of Fluke’s Designated Service Centre.
17. GOVERNING LAW
This Agreement shall be governed in accordance with the laws of the country in which Fluke is incorporated.
18. ENTIRE AGREEMENT
These terms and conditions shall contain the entire agreement between the parties with regard to its subject matter. All prior agreements and all prior negotiations relating to the same subject are superseded by these terms and conditions. These terms and conditions may not be modified except by written amendment signed by an authorised representative of each party.
The failure of either party to enforce at any time any provision of these terms and conditions shall not be construed as a waiver of such provision or the right thereafter to enforce each and every provision. No waiver by either party, either express or implied, of any other breach of any of these terms and conditions shall be construed as a waiver of any other breach of such term or condition.
Customer may not assign or otherwise transfer its rights or obligations hereunder without the prior written consent of Fluke. No attempt to assign or transfer in contravention of this provision shall be binding upon Fluke.
21. BINDING LANGUAGE
The binding language of these terms and conditions is English.
Rev. 2 Mar. 2016