GENERAL TERMS AND CONDITIONS FOR MULTI-BRAND COMMERCIAL CALIBRATION SERVICE
(United States and Canada)
As used in these terms and conditions:
- “Affiliate” means 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
- “Calibration” means calibration verification or functional verification, as determined by Tektronix, during the period of service and includes Certification. The interval of Calibration is determined by Tektronix based on the Tektronix recommended calibration cycle.
- “Certification of Calibration Verification” means a certificate attesting traceability to a national standards organization.
- “Certification of Functional Verification” means a non−traceable certificate of conformance.
- “Control” means, in respect of an entity, the ability to control, directly or indirectly, through ownership, by contract or otherwise, the composition of the board of directors or other governing body, the voting rights of the majority of voting securities, or the management of the affairs of that
- “Customer” means the legal or natural person who has purchased the Services or Plan.
- “Designated Service Center” means a Tektronix site or such other location as Tektronix may designate.
- “Equipment” means the Customer equipment covered by the Customer’s Tektronix Service Agreement, quotation or acknowledgement.
- “Service Agreement” means the Customer’s Tektronix Service Agreement, quotation or acknowledgement applicable to the Equipment.
- “Specifications” means the Equipment performance specifications determined by Tektronix.
- TERM OF AGREEMENT
The effective date and the term of the Agreement are shown on the applicable Service Agreement. Except as otherwise provided below in Section 11 (Suspension of Service; Termination), the services will expire at the end of the term unless both parties agree in writing to extend the Service Agreement.
- SERVICE AREA
Services will be managed within the United States. Some Services may be performed outside the United States except as prohibited by the Customer or applicable laws.
- SERVICE TERMS
Tektronix will provide the services referenced in the applicable Tektronix Service Agreement, quotation or acknowledgement. Where no such agreement, quotation or acknowledgement applies, Tektronix will perform its standard services ordered by the Customer. Tektronix will provide the services at a Designated Service Center during normal business hours (excluding Tektronix holidays), unless otherwise specified in the Service Agreement. Unless otherwise specified in the Service Agreement, Customer will be responsible for shipping Equipment both to and from the Designated Service Center. If Tektronix arranges for the shipping, Tektronix will invoice Customer for a shipping and handling charge for all Equipment shipped covering freight, insurance and packaging.
Customer will at all times allow Tektronix access to Equipment whenever service is required. Customer will ensure that the Equipment user cooperates with Tektronix to the extent necessary to allow service to be performed efficiently and without interruption. For on-site service, Customer will allow Tektronix to use any Customer equipment or facilities that Tektronix reasonably deems necessary for the performance of service.
RoHS 2 Notice for US Multi-Vendor Service Customers: Tektronix Multi-Vendor Services 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 Tektronix and Keithley-branded equipment). Customer must notify Tektronix 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. Tektronix will not be responsible or liable for failing to use RoHS 2, REACH or similar compliant parts and materials on products not manufactured by Tektronix or Keithley.
- COVERAGE ELIGIBILITY
Except for Equipment within the initial warranty period or which are already covered by a Service Agreement, Equipment is only eligible for coverage after the Equipment has been inspected and accepted by an authorized Tektronix service representative. Customer is responsible for identifying any performance deficiencies prior to or at the time of requesting service coverage. Any Equipment with performance deficiencies may be brought up to Specifications at then-current Tektronix per call rates, upon Customer’s request. If newly covered Equipment is subsequently determined by Tektronix not to meet Specifications due to a pre-existing, unidentified deficiency, Customer must request that Tektronix bring the Equipment up to Specifications at then-current Tektronix per call rates or Tektronix will remove the Equipment from the Service Agreement with no further obligation for such Equipment. Customer will not transfer any Equipment covered by a Service Agreement to another Customer site or other location without the prior written consent of Tektronix (such consent not to be unreasonably withheld).
- SERVICE CHARGES
The “Service Charges” are the fees stated in the Service Agreement and will apply only to Equipment specified in the Service Agreement. Service Charges will be increased to include Equipment added to a Service Agreement from time to time at the then-current rates. Where no Service Agreement applies, or if Service Charges are not specified in the Service Agreement, Tektronix will charge its standard fees. Service Charges are exclusive of taxes. Unless otherwise specified in the Service Agreement, Service Charges will be invoiced in advance. When the services are sold through a Tektronix authorized reseller, the Service Charges are designated by and payable to the reseller.
- PURCHASE ORDERS
Customer’s submission of a purchase order or acceptance of service in response to or in anticipation of Tektronix’ quotation or acknowledgement or the Tektronix Service Agreement will be deemed acceptance of these terms and conditions to the exclusion of any additional or different terms or conditions on Customer’s purchase order or other Customer documentation, even if such purchase order or documentation states otherwise.
Any and all state, provincial and local sales, use, excise, privilege and similar taxes imposed on Tektronix or which Tektronix has a duty to collect in connection with the services, supply, shipping or use of any Equipment will appear as separate items on the Tektronix invoice. If Customer is exempt from any such charges, it is the Customer’s responsibility to provide Tektronix with evidence of such exemption at the time Customer requests service.
- INVOICES AND PAYMENT
Customer will pay all amounts invoiced by Tektronix within thirty (30) days after the date of the invoice in U.S. funds. Tektronix may withhold service hereunder if Customer fails to make any payment when due. Tektronix will not adjust any service charges if Customer fails to utilize any services under the Service Agreement.
- REPLACEMENT PARTS, MODULES AND PRODUCTS
Parts, modules and replacement products used by Tektronix for services may be new or reconditioned to like-new performance. Customer will not be entitled to reject Equipment on the basis of the inclusion of reconditioned materials. All parts, modules and products replaced by Tektronix will become the property of Tektronix.
- SUSPENSION OF SERVICE; TERMINATION
Tektronix may suspend the services or terminate the Service Agreement by written notice to Customer if Customer fails to pay any amount when due, or if Customer breaches any other material provision of these terms and conditions and such breach continues for a period of thirty (30) days after Customer receives written notice from Tektronix describing the breach in reasonable detail.
- Tektronix agrees to indemnify, defend and hold harmless Customer, its Affiliates and their employees, officers, directors and agents from all third-party claims, demands, liabilities and expenses, to the extent arising out of or resulting from (a) the negligent or wrongful acts or omissions of Tektronix, or its employees in the performance of the services, including claims resulting from personal injury, death or property damage while on Customer’s premises, or (b) Tektronix’ material breach of any of its obligations under this Agreement.
- Customer agrees to indemnify, defend and hold harmless Tektronix, its Affiliates and their employees, officers, directors and agents from all third-party claims, demands, liabilities and expenses to the extent arising out of or resulting from (a) any acts or omissions of Customer or its employees in connection with the Services, including claims resulting from personal injury, death or property damage caused by Customer or its employees while on Tektronix premises, or (b) Customer’s material breach of any of its obligations under this Agreement.
- For purposes of this Section, references to third-party claims include claims by a party’s employees.
Tektronix warrants that the services will be performed in a workmanlike manner and that all parts installed in the performance of the services will be free from defects in materials and workmanship for a period of three (3) months from the date of service. If any service or any new or reconditioned part installed in the course of services proves defective within the three (3) month warranty period, Tektronix will correct the defective work and replace the defective part without charge for labor. Customer must notify Tektronix of the defect before the expiration of the three (3) month warranty period and make suitable arrangements for the re-performance of services. Further details of the Tektronix standard service warranty are available at www.Tektronix.com or from Tektronix local service representatives.
THIS WARRANTY IS GIVEN BY TEKTRONIX WITH RESPECT TO ITS SERVICES IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED. TEKTRONIX AND ITS VENDORS DISCLAIM ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THEIR EQUIVALENTS IN ANY JURISDICTION. TEKTRONIX’ RESPONSIBILITY TO REPLACE DEFECTIVE PARTS AND CORRECT ITS WORK IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO THE CUSTOMER FOR BREACH OF THIS WARRANTY.
Tektronix will not be obliged under these terms and conditions to:
- service any Equipment that has been damaged, abused, overused or misused as defined by Tektronix and through no fault of Tektronix;
- service any Equipment that has received unauthorized modification, repair or service that impairs performance or impedes normal service;
- paint or refinish any Equipment for cosmetic purposes;
- provide any application software support or any service involving application hardware; or
- repair or replace any accessories, unless otherwise provided in the Service Agreement.
Such services may be provided by Tektronix at Customer’s request and charged to Customer at the then current rates for parts and per call service.
- FORCE MAJEURE
Tektronix will not be liable or responsible to Customer, nor be deemed to have defaulted under these terms and conditions, for any failure or delay in fulfilling or performing any term of these terms and conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Tektronix.
- LIMITATION OF LIABILITY
IN NO EVENT WILL TEKTRONIX, 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 THIS AGREEMENT, OR ANY OTHER REASON WHATSOEVER, EVEN IF SUCH DAMAGES WERE FORESEEABLE BY TEKTRONIX OR TEKTRONIX WAS ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. THIS LIMITATION ON DAMAGES WILL NOT APPLY TO ANY GROSSLY NEGLIGENT OR FRAUDULENT ACT OR OMISSION.
In no event will Tektronix’ liability for all claims arising out of the provision of services under these terms and conditions exceed the charges paid by Customer for the services.
All notices required or authorized by these terms and conditions will be given in writing and will be deemed effective upon receipt. Notices to Customer will be sent to the address shown in Customer’s purchase order. Service notices to Tektronix will be sent to the office of Tektronix designated as responsible for the service. Legal notices to Tektronix must be sent to the Tektronix corporate headquarters (currently located in Beaverton, Oregon).
An amendment or waiver of any terms or conditions will not be effective unless agreed in writing and signed by an authorized representative of each party. No distributor, reseller or channel partner can amend these terms or conditions, and any such attempts are null, void and without any effect. This Agreement will not be deemed modified or amended through any course of trade, course of performance or similar concept.
- ASSIGNMENT; TRANSFER
Customer may not assign or otherwise transfer, subcontract or delegate its rights or obligations under these terms and conditions without the prior written consent of Tektronix. Any attempt by Customer to assign, subcontract or delegate any rights or obligations without written consent will be null and void and will grant Tektronix the right to terminate these terms and conditions.
The failure of either party to enforce at any time any provision of these terms and conditions will not be construed as a waiver of such provision or the right to subsequently 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 will be construed as a waiver of any other breach of such term or condition.
- GOVERNING LAW
The rights and obligations of the parties under these terms and conditions will be governed by and construed in accordance with the laws of the State of Oregon, USA, without application of the United Nations Convention on Contracts for the International Sale of Goods.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
The provisions of this Agreement that by their nature continue, including, but not limited to warranty and limitation of liability, will survive any expiration, cancelation or termination of this Agreement.
- ENTIRE AGREEMENT
These terms and conditions and the Service Agreement will comprise the entire agreement between the parties with regard to the services. Customer has not relied on any statement or representation of Tektronix or any person on behalf of Tektronix other than the representations, warranties and agreements expressly contained in this Agreement. All negotiations and prior agreements relating to the Agreement, and any terms or conditions included within Customer’s purchase orders, are superseded by this Agreement.
Rev. June 2017