Fluke terms and conditions of sale
1.1. All Fluke equipment and services are sold or supplied subject to these Conditions unless varied or modified in writing and signed by Fluke and notified to the Customer. Any variations or amendments will apply to orders placed after the notice date.
1.2. The Customer’s placement of an order for supply of equipment or performance of services shall constitute the Customer’s acceptance of these Conditions.
2. OTHER CONDITIONS
2.1. If the Customer’s order incorporates other conditions they shall not take effect unless Fluke expressly agrees to them in writing signed by Fluke.
3.1. Unless otherwise specified, quotations issued by Fluke are valid for 30 days, an invitation to treat only, and only valid if in writing.
4. ACCEPTANCE OF ORDER
4.1. The Customer’s orders will be accepted only after suitable credit arrangements have been made with Fluke’s Credit Manager. If this has not been obtained the terms are automatically cash on collection.
4.2. Notwithstanding clause 4.1, Fluke has absolute discretion to refuse to accept any offer.
5.1. Prices quoted are firm, unless subject to exchange rate variation (see clause 6), and are based on Fluke’s costs at date of quotation for freight, insurance and on rates of customs or other duties applying at that date.
5.2. Variations in such costs or duties and any other fiscal charges or taxes introduced by any government shall be payable by the Customer.
5.3. Prices quoted for supply of equipment and services include GST and any other taxes or duties imposed on or in relation to the equipment or services as applicable, unless otherwise stated.
5.4. Handling charges will apply to all orders. The applicable charge will be specified in the quotation.
6. EXCHANGE RATE
6.1. Prices quoted may be subject to exchange rate variation. Exchange rate variations will only apply if so stated in the quote. If so, Fluke may claim as an increase in the quoted list price any positive amount, or the Customer may claim as a reduction thereof any negative amount, which results from the application of: ((P x Q)/L) -P P = quoted price in AUD Q = quotation exchange rate in foreign currency L = actual exchange rate as established by the comptroller of customs for the date of customs valuation of the equipment.
7. TERMS OF PAYMENT
7.1. Conditions of payment are strictly 30 days from date of statement, or as otherwise agreed in writing, notwithstanding that equipment may not yet have been installed or commissioned.
7.2. Notwithstanding clause 7.1, Fluke reserves the right to require payment in full at the time of the Customer’s order or upon supply of the equipment or services to the Customer.
7.3. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
7.4. Payment terms may be revoked or amended at Fluke’s sole discretion upon giving the Customer written notice. The revised payment terms will apply to orders placed after the date of notice.
7.5. The time for payment is of the essence.
7.6. Invoices are issued when equipment is dispatched to Customers in Australia or New Zealand or upon completion of ordered services. If the Customer is not ready to accept delivery and has not indicated a delivery date, invoices may still be issued.
7.7. If the Customer defaults in payment by the due date of any amount payable to Fluke, then all money which would become payable by the Customer to Fluke at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Fluke may, without prejudice to any of its other accrued or contingent rights: (a) at its election, charge the Customer interest on any sum due:
i. at the prevailing overdraft interest rate of Commonwealth Bank of Australia; or
ii. a rate of 1.25% per month (or part thereof); for the period from the due date until the date of payment in full.
(b) charge the Customer for, and the Customer must indemnify Fluke from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any equipment;
(c) suspend or cancel its performance of the whole or any part of the Agreement without liability or penalty of any kind;
(d) by written notice to the Customer, terminate any uncompleted Agreement with the Customer.
7.8. Fluke reserves the right to vary or cancel any trade discounts agreed to where the Customer defaults in payment by the due date of any amount payable to Fluke.
8. PERFORMANCE OF AGREEMENT
8.1. Unless otherwise agreed in writing, Fluke will arrange for the delivery of equipment.
8.2. Unless otherwise agreed, the Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the equipment.
8.3. Fluke may make part supply of equipment and services and may invoice the Customer for the equipment or services so supplied.
8.4. Any period or date for supply of equipment or provision of services stated by Fluke is an estimate only and not a contractual commitment. Fluke will use reasonable endeavours to adhere to estimated times but, to the maximum extent permitted at law, will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date. If Fluke cannot supply the equipment or services by any estimated date, it will do so within a reasonable time.
9. CANCELLATION OF ORDERS
9.1. If Fluke is unable to supply the equipment or services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
9.2. No purported cancellation or suspension of an order or any part of it by the Customer is binding on Fluke once the order has been accepted and processed.
9.3. Notwithstanding clause 9.2, in exceptional cases, Fluke may at its sole discretion issue a written authorisation for:
(a) the return of equipment by the Customer on a change of mind basis; or
(b) cancellation of an order for equipment or services at the request of a Customer.
9.4. If Fluke exercises discretion and issues written authorisation under clause9.3, then to the maximum extent permitted at law: (a) Fluke reserves the right to charge a cancellation and/or re-stocking fee in accordance with Fluke’s applicable pricing and ordering policies.
9.5. Equipment sent back to Fluke on a change of mind basis without written authorisation from Fluke will not be accepted.
9.6. Equipment sent back to Fluke on a change of mind basis should be unused and in their original undamaged and unmarked packaging. Fluke reserves the right to charge the Customer a reasonable re-packaging charge should Products be returned in damaged or marked packaging;
10. SUSPENSION OR CANCELLATION
10.1. Subject to any applicable statutory stay of proceedings, Fluke reserves the right to suspend, delay or cancel the supply or delivery of some or all of the equipment or services or to require advance payment if:
(a) the Customer is insolvent or is unable to pay its debts, or seeks to effect any compromise with its creditors or compound any of its debts;
(b) any order is made or resolution passed for the winding up of a Customer or if the Customer is placed in receivership or under judicial/official management;
(c) any judgment is given against the Customer in any court of law and if appealable, is not appealed against within the period allowed for the lodging of such appeal, or if not subject to an appeal, remains unsatisfied for a period of 10 days; or
(d) the Customer is in breach of any of its obligations to Fluke.
10.2. No suspension, delay or cancellation as a result of any of the events identified in clause 10.1 shall affect any other rights which Fluke may have against the Customer in terms of the Agreement or otherwise.
11. INTELLECTUAL PROPERTY
11.1. The Customer acknowledges that it has no proprietary right or interest in the Intellectual Property.
11.2. The Customer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof nor any patents, inventions, trade marks or designs derived from or similar to it, nor aid or abet anyone else in doing so.
11.3. The Customer must not at any time create, sell, manufacture or process any products using or taking advantage of the Intellectual Property.
11.4. Any Intellectual Property provided to the Customer by Fluke in connection with the equipment or services remains the exclusive property of Fluke and must be returned to Fluke on demand. The Customer must not copy nor communicate the Intellectual Property to any third party without Fluke’s express prior written consent.
12. FORCE MAJEURE
12.1. Subject to this clause 12, neither Fluke nor the Customer is liable in any way howsoever arising under an Agreement to the extent that it is prevented from, or delayed in, acting by a Force Majeure Event.
12.2. Nothing in this clause 12 operates to excuse the Customer from any obligation to pay money to Fluke.
12.3. If a party is prevented from, or delayed in, acting by a Force Majeure Event, that party must:
(a) promptly notify the other party of the existence and expected duration of the Force Majeure Event;
(b) take all reasonable steps to alleviate or remedy the effect of the Force Majeure Event; and
(c) subject to clause 12.4, resume performance of the obligation prevented or delayed by the Force Majeure Event as soon as practicable after the Force Majeure Event ceases.
12.4. If a Force Majeure Event prevents performance of an obligation beyond a reasonable time, either party may suspend or terminate the Agreement by written notice.
13. MINOR VARIATION
13.1. To the maximum extent permitted at law:
(a) all sizes, weights and other Specifications made available by Fluke are approximate only, and Fluke does not guarantee or warranty their accuracy;
(b) the Customer acknowledges that it has not relied on sizes, weights or any other Specifications made available by Fluke in making its purchasing decision; and
(c) where Fluke is unable to supply equipment ordered by the Customer, Fluke reserves the right to supply different but equivalent equipment provided that any differences do not make the equipment unsuitable for the Customer’s declared purpose.
14. OWNERSHIP & RISK
14.1. Until Fluke receives full payment in cleared funds for all equipment and ancillary services (such as installation and training) supplied by it to the Customer, as well as all other amounts owing to Fluke by the Customer:
(a) title and property in all equipment remains vested in Fluke and does not pass to the Customer;
(b) the Customer must hold the equipment as fiduciary bailee and agent for Fluke;
(c) the Customer must keep the equipment separate from its own goods and maintain Fluke's labelling and packaging;
(d) the Customer must hold the proceeds of any sale of the equipment on trust for Fluke in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;
(e) the Customer irrevocably grants to Fluke the right to enter the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, including if Fluke has cause to exercise any of its rights under the PPSA, and the Customer must indemnify and hold Fluke harmless from any claims made by any such third party as a result of such exercise.
14.2. Fluke will exercise its right of entry (including the use and extent of force) in accordance with applicable laws.
14.3. Unless otherwise agreed in writing, the risk in the equipment and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately upon:
(a) where delivery is arranged by Fluke, the delivery of the equipment to a common carrier;
(b) where delivery is made through an agent, the delivery of the equipment to a common carrier; or
(c) where the equipment is collected by the Customer or its agent from Fluke’s despatch point, the time when the equipment has been loaded on the Customer’s truck or the agent’s truck. 14.4. The equipment is sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the equipment.
14.5. The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of the use, installation, storage or possession of any of the equipment sold by Fluke, unless recoverable from Fluke on the failure of any statutory guarantee under the ACL. 15.
15.1. Notwithstanding anything to the contrary contained in these Conditions, the PPSA applies to these Conditions and terms used in this clause 15 have the same meaning as in the PPSA.
FOR CUSTOMERS IN AUSTRALIA
15.2. For the purposes of the PPSA:
(a) these Conditions are a security agreement and Fluke has a PMSI in all present and future equipment supplied by Fluke to the Customer and the proceeds of the equipment;
(b) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(c) the Customer must do whatever is necessary in order to give a valid security interest over the equipment and its proceeds which is able to be registered by Fluke on the PPSR.
15.3. The security interest arising under this clause 15 attaches to the equipment when the equipment is collected or dispatched from Fluke’s premises and not at any later time.
15.4. Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95 (notice of removal of accession), 118 (enforcing security interests in accordance with land law decisions), 121(4) (notice to grantor in enforcement of security interests in liquid assets), 130 (notice of disposal of collateral), 132(3)(d) (statements of account following disposal), 132(4) (statements of account if no disposal), 135 (notice of retention of collateral) and 157 (verification statements) of the PPSA.
15.5. Fluke and the Customer agree to contract out of and nothing in the provisions of sections 96 (retention of accession when person has interest in the whole), 125 (obligation to dispose of or retain collateral), 129 (disposal by purchase), 142 (entitled persons’ redemption of collateral) and 143 (entitled persons’ reinstatement of security agreement) of the PPSA will apply to these Conditions.
15.6. To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 (enforcement of security interests) of the PPSA which are for the benefit of the Customer or which place obligations on Fluke will apply only to the extent that they are mandatory or Fluke agrees to their application in writing; and
(b) where Fluke has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
15.7. The Customer must immediately, upon Fluke’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by the Customer to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Fluke may at any time require.
15.8. Fluke may allocate amounts received from the Customer in any manner Fluke determines, including in any manner required to preserve any PMSI it has in the equipment. FOR
CUSTOMERS IN NEW ZEALAND
15.9. The Customer acknowledges that:
(a) the transactions contemplated by the Agreement give rise to a Security Interest in the equipment as Collateral under and for the purposes of the PPSA;
(b) Fluke has a PMSI in all present and future equipment supplied by Fluke and the proceeds of the equipment;
(c) Fluke may Register Fluke’s Security Interest on the PPSR and the Customer consents to such registration;
(d) Fluke may Register Fluke’s Security Interest prior to the Attachment of Fluke’s Security Interest to the equipment;
(e) the equipment is not consumer property;
(f) Fluke may from time to time, whether before or after the transactions contemplated herein, grant security interests (whether by mortgage, charge or otherwise) over its rights under the Agreement;
(g) the Security Interest is a continuing interest irrespective of whether there may be monies owing or obligations owing by the Customer at any particular time.
15.10. The Customer must execute documents and do further acts as Fluke may require to Register the Security Interest granted to Fluke under the Agreement under the PPSA.
15.11. Without limiting the generality of condition 15.11 of these Conditions, if Fluke determines that the PPSA applies, or will in the future apply, to an Agreement or the supply of any equipment, then the Customer must promptly upon Fluke’s request:
(a) do anything (including obtaining consents, making amendments to the relevant Agreement or executing a new Agreement) for the purposes of:
i. ensuring that any Security Interest created under, or provided for by, the relevant Agreement:
(A) attaches to the collateral that is intended to be covered by that Security Interest;
(B) is enforceable, perfected, maintained and otherwise effective; and
(C) any Security Interest created under, or provided for by, the relevant Agreement has the priority contemplated by that Agreement; or
ii. enabling Fluke on and from the registration commencement time within the meaning of the PPSA to prepare and register a financing statement or financing change statement; or
iii. enabling Fluke to exercise any of its powers in connection with any Security Interest created under, or provided by, the relevant Agreement; and
(b) do everything including signing all documents and giving all consents to enable Fluke to cure any defect in Registration of Fluke’s Security Interest and the Customer irrevocably appoints Fluke as the Customer’s attorney for this purpose.
15.12. Until ownership of the equipment passes, the Customer must not give to Fluke a written demand or allow any other person to give Fluke a written demand requiring Fluke to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR a financing change statement under the PPSA.
15.13. Anything that Fluke requires to be done under this clause 15 shall be done by the Customer at its own expense. The Customer agrees to reimburse Fluke’s costs in connection with action taken under or in connection with this clause 15.
15.14. The Customer acknowledges that it has received value as at the date of first delivery of the equipment and has not agreed to postpone the time for Attachment of Fluke’s Security Interest.
15.15. The Customer must immediately upon Fluke's request procure from any person considered by Fluke to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Fluke may at any time require.
15.16. Fluke may allocate amounts received from the Customer in any manner Fluke determines, including in any manner required to preserve any PMSI it has in the equipment.
15.17. The Customer waives any rights to receive a copy of the verification statement under section 148 of the PPSA and agrees, to the extent permitted by law, and in respect of any arrangement between the Customer and Fluke:
(a) the Customer shall have no rights under (or by reference to) section 114(1) (notice of sale of collateral) or 133 (reinstatement of security agreement) of the PPSA;
(b) the provisions of Part 9 (enforcement of security interests) of the PPSA which are for the benefit of the Customer or place obligations on Fluke shall apply only to the extent that they are mandatory or Fluke agrees to their application; and
(c) where Fluke has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply.
16.1. Except as the Conditions specifically state, or as contained in any express warranty provided in relation to the equipment or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the equipment or services or any contractual remedy for their failure.
16.2. The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation or information provided by Fluke in relation to the equipment or services; and
(b) it has the sole responsibility of satisfying itself that the equipment or services are suitable for the Customer’s use.
16.3. Nothing in the Conditions is to be interpreted as excluding, restricting or modifying the application of any legislation applicable to the sale of goods or supply of services which cannot be so excluded, restricted or modified.
16.4. If Fluke is to perform any services (including assembly or installation) at premises nominated by the Customer, the Customer will provide the following at the Customer’s expense:
(a) access to and the right to use facilities reasonably necessary for Fluke to perform those services;
(b) access to and sufficient time with the Customer’s personnel necessary for Fluke to provide those services; and
(c) a safe working environment to all Fluke officers, employees, contractors or agents in compliance with all relevant workplace and occupational health and safety legislation and regulations.
FOR CUSTOMERS IN AUSTRALIA:
16.5. If the Customer is a consumer, nothing in these Conditions restricts, limits or modifies the Customer’s rights or remedies against Fluke for failure of a statutory guarantee under the ACL.
16.6. If the Customer on-supplies the equipment to a consumer:
(a) if the equipment or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Fluke’s liability to the Customer;
(b) if the equipment or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, then payment of any amount required under section 274 of the ACL is the absolute limit of Fluke’s liability to the Customer, howsoever arising under or in connection with the sale, installation, use of, possession of, storage of, or any other dealings with the equipment or services by the Customer or any third party.
16.7. If clause 16.5 or 16.6 does not apply, then other than as stated in the Conditions or any written warranty statement, Fluke is not liable to the Customer in any way howsoever arising under or in connection with the sale, installation, use of, possession of, storage of, or any other dealings with the equipment or services by the Customer or any third party.
16.8. Fluke is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL .
FOR CUSTOMERS IN NEW ZEALAND:
16.9. Fluke is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the CGA.
16.10. The Customer accepts that:
(a) the equipment and services supplied to the Customer by Fluke under this Agreement are for the purpose of a business and that the CGA does not apply; and (
b) the purpose of the acknowledgements in this clause
16.2 is to expressly contract out of the Fair Trading Act 1986 (New Zealand) and that the parties agree it is fair and reasonable to do so.
17. CLAIMS FOR DAMAGE OR SHORTAGE
17.1. Subject to clause 17.2 and 17.3, Fluke shall not be liable for damage in transit or for shortages unless a claim in writing is received within 7 days with the full details, description and the Customer’s receipt of equipment. Otherwise, the Customer is deemed to have accepted the equipment.
17.2. When any shortages, claim for damaged equipment or non-compliance with the Agreement Specifications is accepted by Fluke, Fluke may, at its option, repair the equipment, replace the equipment, or refund the price of the equipment.
17.3. Subject to clause 17.4, Fluke will not under any circumstances accept equipment for return that:
(a) has been specifically produced, imported or acquired to fulfil the Agreement;
(b) is discontinued goods or no longer stocked by Fluke;
(c) has been altered in any way;
(d) has been used; or
(e) is not in its original condition and packaging.
17.4. If the Customer is a consumer, nothing in this clause 17 limits any remedy available for a failure of the statutory guarantees in sections 56 and 57 of the ACL.
18. SPECIAL PACKING AND SPECIAL (EXPRESS) DELIVERY
18.1. Should the Customer’s orders require abnormal/special packing or abnormal/ special/express delivery then this will be carried out at the Customer’s cost.
19.1. Fluke is at liberty to employ sub-contractors on all or any part of Customer’s order.
20.1. Although normally permission may be granted for the Customer’s representative to visit Fluke’s premises, such permission shall not be given automatically.
21. NO WAIVER OF BREACH
21.1. No breach by the Customer of any of these Conditions shall be taken to have been waived or released by Fluke unless such waiver is in writing and signed by Fluke.
21.2. Fluke’s failure to enforce any of these Conditions shall not be construed as a waiver of any of Fluke’s rights.
21.3. No waiver by Fluke of any breach hereunder will be deemed a waiver of any continuing or recurring breach.
22.1. If a clause is unenforceable it must be read down so as to be enforceable or, if it cannot be so read down, it must be severed from these Conditions without affecting the enforceability of the remaining terms.
23.1. Headings are for ease of reference only and shall not be used in any way in the interpretation of the terms and conditions.
24. GOVERNING LAW
24.1. These Conditions and all Agreements shall be governed and interpreted in accordance with the laws of the state of New South Wales, Australia, and the parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and courts entitled to hear appeals from those courts.
25.1. A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received upon confirmation of successful transmission.
26. EXPORT CONTROLS
26.1. Equipment supplied is intended for use only in the country of destination.
27.1. In these terms & conditions:
(a) ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended;
(b) Agreement means any agreement for the provision of equipment or services by Fluke to the Customer;
(c) CGA means the Consumer Guarantees Act 1993 (New Zealand);
(d) consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if the Customer is a consumer under the Agreement as per relevant laws;
(e) Customer shall mean either the corporate or incorporate contracting party to any supply, purchase or order from Fluke.
(f) equipment means any goods and spare parts sold by Fluke to a Customer;
(g) Fluke means Fluke Australia Pty Ltd (ABN 43 086 173 882);
(h) Force Majeure Event means an event beyond the reasonable control of a party including, without limitation, accident, acts of God, acts or threats of terrorism or war, breakdown, epidemic, pandemic, import or export or travel restrictions, industrial disputes, lockouts or strikes;
(i) GST means: i. for Customers in Australia, the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth); and ii. for Customers in New Zealand, the Goods and Services tax as defined in the Goods and Services Tax Act 1985 (New Zealand);
(j) Intellectual Property means all copyright, patents, trade marks, designs, names, formulae, Specifications, confidential information and all modifications, improvements and enhancements (whether registrable or not) owned by or licensed to Fluke in respect of the equipment or services;
(k) Managing Director means the managing director of Fluke Australia Pty Ltd;
(l) PPSA means: i. for Customers in Australia, the Personal Property Securities Act 2009 (Cth) and its associated regulations as amended; and ii. for Customers in New Zealand, the Personal Property Securities Act 1999 (New Zealand) and its associated regulations as amended from time to time;
(m) PPSR means the Personal Property Securities Register in Australia or New Zealand (as relevant);
(n) Specifications means all drawings, illustrations, descriptive matter and particulars contained in Fluke’s catalogues, price lists and marketing documents; and
(o) Conditions means these terms and conditions.