Last Updated: March 9, 2017
These Terms apply to your access to, and use of, the websites and other services that are part of this Partner Portal Offering to our distribution partners (collectively, the "Services") of Fluke Corporation and certain subsidiaries and affiliates (collectively, "Fluke," "we" or "us"). These Terms do not alter in any way the terms or conditions of any other agreement you may have with Fluke for other products, services or otherwise. If you are using the Services on behalf of any entity: (a) you represent and warrant that you are authorized to accept these Terms on such entity's behalf and that such entity agrees to be responsible for your breach of any term or condition in these Terms; and (b) references to “you” in these Terms will refer to such entity.
Fluke reserves the right to change or modify these Terms at any time and in Fluke’s sole discretion. If Fluke makes changes to these Terms, we will provide notice of such changes, such as by sending you an email notification, by providing notice through the Services, or by updating the "Last Updated" date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure that you understand the terms and conditions that apply to your use of the Services. If you do not agree to any amended Terms, you must stop using the Services.
1. Use of Customer Information. By providing you with access to the Services, Fluke will supply you with information regarding Fluke’s current and prospective customers, including, but not limited to customer identifying information, personal information of its employees and agents (“Personal Data”), information relating to customers business affairs and financial information (collectively, “Customer Information”). Customer Information is provided to you solely for the purpose of your sales promotion and marketing activities for Fluke products and services as contemplated under your current Fluke distribution agreement (your “Distribution Agreement”) to these customers (the “Purpose”).
Customer Information also constitutes Fluke’s confidential information and is provided to you subject to any confidentiality obligations that you may have under your Distributor Agreement.
By accessing and using the Services, you agree (a) to use the Customer Information solely on our behalf and for the Purpose (or as otherwise instructed by us in writing); (b) not to disclose Customer Information to third parties, unless we have given prior written authorization and the third party has entered into an agreement containing the equivalent obligations in relation to Customer Information as applicable to you under these Terms; (c) to provide legally required information and opt-in or opt-out mechanism in your marketing communications to Fluke’s customers; (d) to notify us without undue delay of any request from a public body that could require you to disclose Customer Information; (e) to notify us without undue delay of any requests received from supervisory authorities or directly from individuals relating to your use of Personal Data or other types of Customer Information; (f) to implement appropriate technical and organizational measures to protect Customer Information against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access; and (g) to address promptly and properly all inquiries from us relating to processing of Customer Information and to submit yourself on request to any audit by us or on our behalf of your processes and procedures or overall compliance with these Terms.
Fluke shall take reasonable steps to inform you, where necessary and at a reasonable time, of (a) any inquiries made by individuals or any relevant supervisory authority with jurisdiction that relate to the use, storage and other processing activities carried out by you in relation to Customer Information and (b) about Customer Information that should be corrected, updated, deleted, blocked or whose use for determined purposes has been prohibited or restricted.
Upon termination of your Distributor Agreement or upon our request you shall destroy or return to us without undue delay all Customer Information which we have provided to you through the Services and certify such destruction or return in writing, unless legislation applicable to you prevents you from doing so. In the latter case, you shall preserve the confidentiality of the Customer Information and shall not actively use it anymore.
2. Registration and Account. In order to access and use certain areas or features of the Services, you may be required to register for an online account. When registering for an account, you cannot create an account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim account names, or to take other reasonable action as necessary, on behalf of any business or individual that holds legal claim, including trademark rights, in a name.
In consideration of your use of the Services, you agree to (a) provide accurate, current and complete account information; (b) maintain and promptly update your account information; (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us; (d) promptly notify us if you discover or otherwise suspect any security breaches related to the Services; and (e) take responsibility for all activities that occur under, and accept all risks of unauthorized access to, your account.
4. Copyright. Unless otherwise indicated on the Services or otherwise by Fluke, the Services and all content and other materials therein, including, without limitation, the Data, the Fluke logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Content") constitute the valuable and proprietary property of Fluke or our licensors or users and may be protected by U.S. and international copyright laws.
5. Limited License. You are hereby granted a limited, nonexclusive, non-sublicensable license to access and use the Services and Content; however, such license is subject to these Terms and does not include (a) any resale or commercial use of the Services or the Content therein except as expressly provided for above; (b) the collection and use of any product or service listings, pictures or descriptions; (c) the distribution, public performance or public display of any Content; (d) modifying or otherwise making any derivative uses of the Services or the Content, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Services, the Content or any information contained therein, except as expressly permitted under these Terms; and (g) any use of the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without the prior written permission of Fluke, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or otherwise by Fluke, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Services and Content may contain software components that are subject to separate license terms, in which case those license terms will apply to the access and use of such software components.
6. Trademarks. "Fluke," "Fluke Biomedical," "Fluke Calibration," "Fluke Networks", the Fluke logo and the Fluke yellow trade dress, and any other Fluke product or service names, logos or slogans that may appear on the Services or constitute Content are trademarks of Fluke in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Fluke. Third party marks appearing on the Services are owned by their respective companies and may not be used without permission of the applicable trademark holder. You may not use any metatags or other "hidden text" utilizing "Fluke" or any other name, trademark or product or service name of Fluke without our prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Fluke and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Fluke.
7. Repeat Infringer Policy; Copyright Complaints. In accordance with the US Digital Millennium Copyright Act ("DMCA") and other applicable laws, Fluke has adopted a policy of terminating, in appropriate circumstances and in Fluke's sole discretion, account holders or other users of the Services who are deemed to be repeat infringers. Fluke may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Services infringes any copyright which you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Designated Agent: Chief IP Counsel
Address: 6920 Seaway Blvd, MS203A, Everett WA 98203
Email: [email protected]
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
8. Indemnification. You shall defend, indemnify and hold harmless Fluke and our partners, independent contractors, service providers and consultants and their and our respective directors, officers, employees and agents (collectively, the "Fluke Parties") from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of the Services; (b) any content you post, upload, use, distribute, store or otherwise transmit on or through the Services; (c) any feedback you provide; (d) your violation of these Terms; or (e) your violation of the rights of another.
9. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FLUKE, THE SERVICES AND THE CONTENT CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FLUKE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SERVICES AND CONTENT CONTAINED THEREIN. FLUKE DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. FLUKE IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHILE FLUKE ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, FLUKE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Fluke reserves the right to change any and all content contained in the Services and to modify, suspend or discontinue the Services or any features or functionality of the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Fluke. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
10. Limitation of Liability. IN NO EVENT SHALL FLUKE OR THE FLUKE PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM FLUKE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FLUKE'S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FLUKE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR TO THESE TERMS EXCEED ONE HUNDRED DOLLARS ($100) OR ITS EQUIVALENT IN ANY OTHER CURRENCY.
11. Modification to the Services. Fluke reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof without prior notice to you. You agree that Fluke will not be liable for any modification, suspension or discontinuance of the Services or any part thereof.
12. Applicable Law. To the full extent permitted by applicable law, these Terms will be governed by the laws of the state of Washington, United States of America, without regard to its choice or conflicts of law principles that might refer the interpretation or enforcement of these Terms to the laws of any other jurisdiction. You hereby irrevocably consent, and irrevocably waive any right to object, to the jurisdiction of the courts located in King County, Washington with respect to any proceeding regarding these Terms or the Services. You will not prosecute any action, suit, proceeding or claim arising under or by reason of These Terms or the Services except in such courts. The parties expressly exclude the application of the UN Convention on Contracts for the International Sale of Goods to these Terms.
13. Termination. Notwithstanding any of these Terms, Fluke reserves the right, without notice and in our sole discretion, to terminate your right to use the Services, or any portion of thereof, and to block or prevent your future access to and use of the Services or any portion thereof. You may terminate these Terms at any time by discontinuing your use of the services.
Upon termination, at the option of Fluke, you shall return all Data and its copies to Fluke, or shall destroy all Data and certify to Fluke that you have done so, unless legal requirements applicable to you prevent destruction of all or any part of the Data. In that case, you represent and warrant that you shall maintain the confidentiality of the Data that may not be so destroyed with at least the same degree of care that you use to protect your own confidential, proprietary or non-public information, but in no event less than a reasonable degree of care, and shall not use such Data for any purpose, in each case at all times that you shall maintain any copies of any Data following such termination.
You further represent and warrant that upon request of Fluke or any supervisory authority with jurisdiction over you, that you shall submit your data processing facilities to audit to ensure compliance with these Terms.
14. Severability. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
15. Entire Agreement. These Terms constitute the entire agreement and understanding between you and Fluke relating to the subject matter hereof and supersedes all prior communications, agreements and understandings between you and Fluke relating to the subject matter hereof. In the event of any conflict or inconsistency between these Terms and your Distributor Agreement with respect to the subject matter hereof, these Terms shall control.
16. Survival. Sections 4, 6, 8, 9, 10, 12, 14, and 16 will survive any termination or expiration of these Terms.
17. Contact Us. If you have questions, complaints, or claims with respect to the Services, please contact us at:
Attn: General Counsel
P.O. Box 9090
Everett, Washington, 98206-9090
Email: [email protected]