Fluke terms and conditions of sale

  1. AGREEMENT. This invoice and Fluke’s Quote Form contain all of the terms and conditions with respect to the sale and purchase of the goods specified herein, except that if this order is also covered by another written contract signed by both Fluke and Buyer, then the terms and conditions set forth in this invoice apply to the extent that they are not in conflict with such other written contract. No modification of the terms and conditions set forth in this invoice shall be of any force unless such modification shall be signed by the party claimed to be bound thereby.
  2. DELIVERY AND RISK OF LOSS. Delivery shall be F.O.B. point of origin unless otherwise agreed to in writing by Fluke. Upon request by the buyer, Fluke shall prepay insurance and freight and invoice buyer for such costs. The buyer will inspect the product delivered to it by Fluke and shall advise Fluke of any damage or defect in material or workmanship within 10 days of receipt of product.
  3. PAYMENT. Fluke payment terms, condition on approved credit are Net 30 days from date of invoice unless otherwise stated in writing by Fluke. Fluke specifically reserves the right to modify the payment terms provided herein if, in Fluke’s opinion, the payment record or financial condition of the Buyer so warrants. Late payments shall be subject to a charge of 10/0 interest per month on the unpaid balance. Fluke shall retain title to and ownership of the product until payment in full in accordance with Paragraph 3 hereof has been made. In the event payment is not so made Fluke shall be entitled in its discretion to dissolve the sale and retake possession of the product and retain all monies received on account from purchaser in part as liquidated damages.
  4. TAXES
    1. Unless shown as a separate line item, taxes or duties imposed upon the production, storage, sale, transportation or use of the products are not included.
    2. If included on the reverse side hereof, “import duties, sale taxes and currency exchange” have been calculated at rates prevailing on the date of the Quotation. In accepting the Quotation that buyer agrees that if prior to delivery such duty, tax or currency exchange rates have been changed substantially or other charges are imposed by any governmental authority, Fluke may requote and include the then prevailing rates and at the buyer’s option enter the order at the revised prices. Buyer must accept or reject the new Quotation within 5 days of its date.
  5. CANCELLATION. It is understood that orders placed pursuant to this agreement may not be cancelled or rescheduled without Fluke’s written consent and shall be subject to cancellation charges determined by Fluke. The products shall not be returnable to Fluke except with prior authorization of Fluke, which authorization shall specify the terms on which the products are to be returned. Fluke agrees to grant such authorization in respect of products which have a defect in material or workmanship or have been damaged in transit before delivery where buyer has complied with the inspection required by paragraph 2 and has notified the carrier.
  6. EXECUSABLE DELAYS. Time of delivery is based upon a corresponding promise of delivery by Fluke’s suppliers and Fluke shall not be responsible in case of delays or failure to deliver on the part of Fluke’s suppliers. Fluke shall not be liable for non-delivery, or delay in performance of this order when such delay is directly or indirectly caused by or in any manner arises from fires, floods, accidents, riots, war, governmental interference or embargoes, strikes or shortage of labour, or other difficulties (whether or not similar in nature to any of those specified) beyond its control. Delivery on this order shall be deemed to be suspended so long as any such causes delay performance. Fluke agrees to make, and the Buyer to accept, deliveries whenever such causes have been remedied. All orders shown as being “stock” are subject to prior sale.
  7. DESIGN CHANGES. Fluke reserves the right to make changes in product design or specifications at any time without providing prior notice to Buyer.
  8. INDEMNITY. At its expense, Fluke will settle or defend and pay all damages and costs finally awarded in any action brought against Buyer to the extent that it is based on a claim that Fluke product infringes any patent or copyright provided Buyer promptly gives Fluke the notice, authority and assistance necessary to defend or settle the claim and the infringement does not arise out of compliance with Buyer’s specifications, or a combination with or an addition to products not supplied by Fluke, or from a modification after shipment. If any product is in Fluke’s opinion likely to cause a claim of infringement, Fluke at its option and expense may procure for Buyer the right to continue using the Product, or modify it to make it non-infringing, or may grant buyer a credit for the depreciated value of the product after it is returned to Fluke.
  9. SOFTWARE. Title to the ordered software shall always be in Fluke. Fluke grants a perpetual non-exclusive license to use such software on one unit of product. It may terminate the license if licensee (Buyer) discloses the software to others without Fluke’s consent. Back-up copies of the software may be made and licensee may sublicense the software along with the transfer of said one unit of product.
  10. WARRANTY AND LIMITATION OF LIABILITY. Fluke warrants each product it manufacturers to be free from defects in material and workmanship under normal use and service. Software is warranted to operate in accordance with its programmed instructions or appropriate Fluke products. It is not warranted to be error free. The warranty period shall be controlled by the warranty document furnished with each product. Generally, the warranty period is one year from the date of purchase, however, on some individual products the warranty period may be different. Product repairs are warranted for sixty days. This warranty extends only to the original purchaser and shall not apply to fuses, disposable batteries, computer media, or any product or parts which have been subject to misuse, neglect, accident or abnormal conditions of operation. Fluke’s obligation under this warranty is limited to repairing or replacing a product which is returned to an authorized Service Centre within the applicable warranty period and which upon examination, Fluke determines to be defective. If Fluke determines the failure has been caused by misuse, neglect, accident or abnormal condition of operation, repairs will be made and Buyer shall be billed for the reasonable costs of repair. If a failure occurs, ship the product, transportation prepaid, to the nearest Fluke Service Centre. After repairs are made, the product will be returned, transportation prepaid. Fluke assumes no risk for in-transit damage. THE FOREGOING WARRANTY AND INDEMNITY ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHERS, EXPRESS OR IMPLED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. FLUKE SHALL NOT BE LAIBLE FOR ANY DIRECT, INDIRECT, SPECIAL INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE.
  11. COMPLIANCE WITH CANADIAN EXPORT LAW. If the ultimate destination of the goods is outside Canada, purchaser states that is has a valid export permit from the Department of Regional and Industrial Expansion permitting its export, that the permit is in full force and effect, and that purchaser shall comply in all respect with the Export and Import Permits Act (Canada). Purchaser states that it knows of nothing which may result in the permit’s revocation. Purchaser further states that it has made due inquiry and believes that the goods will not be shipped, transshipped or diverted from the ultimate destination, whether as noted on the reverse side and designated in purchaser’s export permit, or within Canada.
  12. GENERAL. This agreement is not assignable without prior written approval of Fluke. If any of the terms or provisions of this agreement shall be declared in violation of law, the remaining terms and provision shall remain in full force and effect. This agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
  13. DISPUTE RESOLUTION. The parties agree to work together in good faith to resolve any dispute in connection with this transaction and to explore resolution through methods of alternative dispute resolution. If the parties are unable to resolve a dispute, it will be finally settled by a single arbitrator in arbitration conducted in accordance with Canadian Commercial Arbitration Rules. Judgment upon any award may be entered in any court having jurisdiction over the disputed subject matter. If both parties agree that neither arbitration, nor any other method of alternative dispute resolution is suitable to resolve the dispute, they may proceed with litigation. Unless the parties agree otherwise in writing, resolution of the dispute by whatever process, will occur in Toronto, Ontario, Canada.
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