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 outside North and South America 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” means the Fluke legal entity which has accepted Customer’s purchase order or has otherwise agreed to deliver the Services to Customer.
“Fluke’s Designated Service Centre” means Fluke’s premises or such other location as Fluke may designate for the provision of the Services.
“Fluke Service Contract” means the agreement, statement of work, quotation, acknowledgement or plan describing the Service to be performed by Fluke.
“Services” means repair (including repair by replacement) and/or calibration services (as applicable to Customer).
The Services, unless provided on ad hoc basis, shall be provided during the period set out in Fluke Service Contract, unless cancelled or terminated earlier in accordance with clause 11 (CANCELLATION) or 12 (TERMINATION) of these terms and conditions.
Save where specified otherwise in the Fluke Service Contract, 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 out at Fluke’s Designated Service Centre or at Customer’s site.
Unless otherwise specified in the Fluke Service Contract, Customer shall bear the cost and risk of shipping products to and from Fluke’s Designated Service Centre and, 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 agreed between Customer and Fluke (additional service charges may apply for specific requests). 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 Fluke’s internal guidelines.
Equipment which has been sent to Fluke can be calibrated in one of the labs of the Fluke and Tektronix groups of companies, but, if necessary, also outside of it. If a calibration cannot be performed within the aforementioned labs, use will be made of a Fluke authorised service provider or an external supplier which has been approved by the Fluke quality manager.
RoHS 2 Notice for Multi-Vendor Service Customers: Fluke may be unable to perform repairs on certain equipment that is manufactured to be compliant with the EU RoHS 2 Directive, REACH or substantially similar product compliance requirements (other than equipment manufactured by Fluke or its Affiliates, such as Fluke, Fluke Networks, Beha-Amprobe, Tektronix and Keithley-branded equipment). Customer must notify Fluke in writing when requesting repair services for any such equipment. Customer’s notice must include specific model numbers of all such equipment in the service order. Fluke will not be responsible or liable for failing to use RoHS 2, REACH or similar compliant parts and materials on products not manufactured by Fluke or its Affiliates.
Hazardous substances for Multi-Vendor Service Customers: If Services are to be provided in the European Economic Area, the Customer shall also provide information on the hazard classification of the products to be serviced by Fluke (other than products manufactured by Fluke and its Affiliates, such as Fluke, Fluke Networks, Beha-Amprobe, Tektronix and Keithley-branded equipment) and shall ship such products to Fluke in accordance with the latest European Union dangerous goods regulations. In the event of the Customer failing to disclose the hazardous nature of any such product, or in the event of any such product becoming a danger to persons or property, Fluke shall be entitled, immediately, and without prior notice to the Customer, to discharge or dispose of any such product in any manner, and Fluke shall not be liable for any loss or damage arising from such discharge or disposal whatsoever. Fluke shall furthermore be entitled to recover from the Customer charges in respect of any carriage, notwithstanding the non-delivery of such product, together with any expenses incurred in discharging or disposing thereof. The Customer shall be liable for all loss and/or damages suffered by Fluke or any other person caused by such products, irrespectively of whether the hazardous nature thereof has been disclosed by the Customer or not and hereby agrees to defend and indemnify Fluke against all liability and all claims by any person arising from such products.
Export Control: Fluke products (commodities, software and technology) and Services are subject to U.S., EU and other country export control/sanctions laws and regulations. Customer shall not export, re-export or transfer, directly or indirectly, any Fluke products or technology to any country or user to which such export, re-export or transfer is restricted by U.S., EU or other country law or regulation without first obtaining any required government license, authorization, certification or approval. The use, sale, re-export, delivery or retransfer, directly or indirectly, of Fluke's products and technology in any activities related to the design, production, use, or stockpiling of chemical, biological or nuclear weapons or missiles is strictly prohibited. Any Fluke products sold in violation of export control laws or regulations cannot be serviced or supported by Fluke. Warranty for any such products is therefore void.
Customer must notify Fluke in advance of shipment if products or related technical information (e.g. calibration specifications) provided to Fluke are controlled by the US International Traffic in Arms Regulations (ITAR). All technical information must be marked as ITAR controlled, and Customer should mark all technical data with any applicable US Department of Defense distribution statement.
If Customer’s product requires an export license for return shipment or if a party to the transaction, including Customer, is named on a US, EU or other applicable country restricted party list or is located in a country subject to US, EU or other applicable country’s sanctions or embargoes, Customer agrees to participate in applicable licensing procedures. When required, Customer undertakes to provide to Fluke appropriate and complete information about the end use of products to be serviced by Fluke and any other required documentation. Fluke will have no liability for delayed delivery or non-delivery resulting from denial, revocation, suspension or governmental delay in issuance of any necessary export license or authority.
Fluke may, in its sole discretion, cancel all or part of any order, refuse to perform any Services (including, but not limited to, any repair or replacement under a service plan) if the Customer, a beneficiary of the Service or another party related to the transaction, is named on a US, EU or other applicable country restricted party lists or is located in a country subject to sanctions and embargoes.
All use of the CalWeb.tek.com site and the CalWeb Service shall be governed by the CalWeb® Terms and Conditions of Use, available at https://www.tek.com/en/calweb-terms-and-conditions-use.
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 under a Service plan or on-going contract 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).
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.
The initial charges for the Services will be the charges shown on 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 Fluke Service Contract 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 Service charges are exclusive of taxes. Unless otherwise specified 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 another Fluke Service Contract document, 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.
Unless otherwise indicated in the Fluke Service Contract, Customer shall pay all amounts invoiced by Fluke in writing within thirty (30) days of the date of invoice 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. Customer will not be entitled to make any deduction for set-off or counterclaim.
Fluke reserves the right to charge a late payment interest or late payment fee at the lesser of 1.5% per month or the maximum amount allowed by applicable law on any balance outstanding after the payment due date, such interest accruing on a daily basis. Fluke may change its credit terms or suspend its performance when, in the opinion of Fluke, Customer's financial condition or record of payment so warrants. Customer agrees to pay any third-party collection expenses, including attorney's fees, incurred by Fluke to collect any past-due amounts.
Parts, modules and replacement products used by Fluke for the provision of Service may be new or reconditioned to like new performance. Customer will not be entitled to reject Services or seek any diminution in Service charges on the basis of the use of reconditioned materials. 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 Service 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 Service charges which it has prepaid.
Fluke may terminate the Fluke Service Contract 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. Termination of the Fluke Service Contract will not relieve Customer of its obligation to pay Service charges for any Services provided. 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 and that testing environments will meet the specification in the Fluke Service Contract. 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. In the event Fluke is unable to correct the defective work and/or replace the defective part, in Fluke’s sole opinion, Fluke shall refund the Service charge for the specific Service. 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 to have waived any claim. Further details of Fluke’s standard service warranty are available from Fluke’s local service representatives. Fluke is not responsible for equipment damaged after return to Customer due to causes unrelated to the Service performed.
To the maximum extent permitted by law, The express warranty set forth above is in lieu 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. To the maximum extent permitted by law, 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:
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.
Fluke shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including acts of terrorism, nature or governments, pandemics, interruptions of telecommunications, power or transportation, failure of contractors or suppliers, export control sanctions or embargoes, or inability to obtain necessary labour or materials. If any such event occurs, Fluke reserves the right to cancel the applicable order.
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL FLUKE, ITS REPRESENTATIVES, AFFILIATES OR VENDORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF USE, LOST TIME, LOST DATA RESULTING FROM THE DAMAGE OR FAILURE OF A SERVICED PRODUCT OR FROM DELAYS IN SERVICING A PRODUCT, THE INABILITY TO RENDER SERVICE ON A PRODUCT OR DIMINUTION IN VALUE ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THESE TERMS AND CONDITIONS, OR ANY OTHER REASON WHATSOEVER, EVEN IF SUCH DAMAGES WERE FORESEEABLE BY FLUKE OR FLUKE WAS ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED.
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL FLUKE’S LIABILITY FOR CLAIMS ARISING OUT OF THE PROVISION OF SERVICES UNDER these terms and conditions EXCEED THE LESSER OF THE FEES PAID BY CUSTOMER FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM OR THE TOTAL FEES PAID BY THE CUSTOMER OVER THE PREVIOUS SIX MONTHS UNDER THE SPECIFIC fluke SERVICE cONTRACT GIVING RISE TO THE CLAIM.
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.
These terms and conditions shall be governed in accordance with the laws of the country in which Fluke is incorporated.
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.
Rev. 8 June 2022