Gold Support Terms & Conditions

SERVICE AGREEMENT FOR THE GOLD SUPPORT PROGRAM

Fluke Networks and Gold Support member jointly agree that the terms and conditions under which Fluke Networks will provide products and services, as defined herein, to the Gold Support member and the responsibilities that will be undertaken by both parties are as follows:

1. PURPOSE

The Gold Support Program is a paid membership for Fluke Networks customers only, providing a range of services and entitlements not available to the regular customer base.  These services are established by purchase of an annual maintenance contract.  Gold Support Program member is given priority and immediate handling for any Entitlements.  The Entitlements will remain available for each applicable product for 12 months from the date of purchase and then for 12 months each subsequent year upon contract renewal (see sections 5.1 and 5.4 for renewal eligibility and restrictions).

2. RESPONSIBILITY OF PARTIES

Determination of duties and entitlements will be based upon information the customer provides to Fluke Networks.

2.1 - Gold Support Program member will: Maintain accurate and up-to-date records of the number and location of all hardware, serial numbers and copies of the Software supplied to member under the terms of the License Agreement and in relation to the numbers of users of such.  Cooperate with Fluke Networks personnel in the diagnosis of any error or defect in the Hardware, Mainframe, Software, Updates, or Upgrade reported by End User. Make available to Fluke Networks all reasonable information, facilities, services and access required by Fluke Networks in order to perform Gold Support Program entitlements.

2.2 - Fluke Networks will: Use its reasonable commercial efforts to ensure that the Gold Support Program will be performed with reasonable skill and care in such a way as to cause only minimal interruptions to member business processes.  There may be occasions when unavoidable interruption will be required in order to perform the program support in a proper and efficient manner.  The express terms of this Agreement are in lieu of all warranties, conditions, undertakings, terms of obligations implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.

2.3 - Gold Support Program members will receive unlimited access to Fluke Networks technical assistance and the knowledge base of application related articles and answers. They will also receive any software upgrades/updates, firmware upgrades to their hardware, or mainframe (not including options) released during the valid membership term of their agreement, as long as they are at the current revision. Any service repair/calibration/performance verification must be performed by a Fluke Networks authorized service representative. Requests for service must be submitted via the internet or by phone and will be pre-qualified by Fluke Networks’ Technical Assistance Center (TAC).

2.4 - Software customers are required to purchase one year of Gold Support Program services with their initial license purchase. This support provides remote installation technical support via the phone or email. Onsite technical assistance is available for purchase separately. Only software customers with valid Gold Software Support Program contracts will be provided with access to TAC, the knowledge base, and new releases. Additional information is available in “Software Terms and Conditions”.

2.5 - When hardware or a mainframe has been pre-qualified as defective or faulty, Fluke Networks will either exchange or repair the unit, at our discretion, at no charge to the Gold Support Program member. Exchange units will be new or refurbished (guaranteed good as new) at our option. The model exchanged will be the same unit covered by the agreement. Hardware covered by onsite repair agreements will be repaired or replaced at the discretion of the onsite technician. Faulty or defective accessories that were shipped with the product and are considered essential to the operation of the mainframe are covered provided a) the technical assistance center approves its return and b) the accessory is returned to Fluke Networks for evaluation.

While a hardware or mainframe unit is being repaired, the Gold Support Program member will be shipped a refurbished loaner or new unit of the same, or greater, model as that covered by the contract. Loaner equipment is the property of Fluke Networks and must be returned within five (5) business days of receipt of the repaired/serviced equipment. Gold Support Program members who fail to return the Fluke Networks loaner equipment within 5 business days after they received the repaired/serviced equipment will be invoiced for the replacement price (at local MSRP) of the delinquent items. Non-return of the unit is grounds for termination of the agreement. Loaner units are not provided during a voluntary enhancement or option to the product.

To receive a loaner unit during calibration (available in most regions), we recommend you schedule your appointment 6 weeks in advance of your required calibration date.  If a loaner is not required or calibration cannot be scheduled in advance, Gold customers may opt to instead receive a shipping waybill and calibrations will receive first-on-bench priority. Typical turnaround time for a calibration is 5 working days. 

2.6 - Fluke Networks pays for all shipping for loaner and exchange equipment, and for the customer equipment covered under a valid agreement. Shipping from Fluke Networks is by common carrier, “next day” unless circumstances require later shipment. Shipping back to Fluke Networks and any return shipping is always “second day”.

2.7 - Gold Support Program members are responsible for shipping to and from for performance evaluation of out of warranty equipment for support agreement assessment. Fluke Networks will pay shipping one way (return) during annual calibration or performance verification for products, which can be calibrated, or performance verified annually. A loaner unit is not available during this period, so it is recommended that the Gold Support Program member carefully schedule such support during a time that they can be without their mainframe.

2.8 - Repair/exchange and loaner units (with pre-paid shipping) for mainframes/accessories are not available in certain countries worldwide. For a list of countries these services are available, please see section 5.6.

2.9 - The Fluke Networks Gold Support program provides 24-hour, seven days a week coverage for technical support except United States observed holidays: President's Day (2/20/12), Memorial Day (5/28/12), Independence Day (7/4/12), Labor Day (9/3/12), Thanksgiving (11/22/12, 11/23/12), Christmas Eve (12/24/12), Christmas (12/25/12) and New Years (12/31/12, 01/01/13). Our worldwide technical assistance centers, staffed by trained technicians, are based at our corporate headquarters near Seattle, Washington (US)and Eindhoven (NL).. There may be times that technicians are busy helping other end users. Please do not hang up the phone. Leave a voice mail message, including your name, country and a phone number where we can return the call. We will do our best to respond within one hour. If you need language assistance, please indicate the language you prefer.

Trouble tickets are also given priority for Gold Support members. Trouble tickets can be initiated by the technical assistance center, or by the end users through email or by the internet.

3. GOLD SOFTWARE SUPPORT PROGRAM DESCRIPTION

Gold Software Support Program includes software updates and upgrades, live troubleshooting assistance with our TAC, escalation to engineering support as required and unrestricted knowledge base access. A Gold Software Support Program is required to receive TAC troubleshooting assistance and Engineering support for software products.

3.1 - First and Second Level Technical Support: In the case of Fluke Networks Software, products purchased through communications service provider channels, First and Second Level Technical Support is provided by the channel.  For all other products and customers, this support is provided by Fluke Networks.

First Level:  Answering basic installation, configuration and operation inquiries regarding the application, use and operation of the Software.

Second Level:  Answering and using reasonable commercial efforts to resolve problem inquiries; troubleshooting and isolating product problems vs. network, environmental or non-Fluke Networks supplied applications; assist customer with software upgrades and OS upgrades; assist customer with database activities such as upgrades, backup and restoration; providing existing workarounds; collecting all relevant information and attempting to simulate an end user problem, when practical, and sending all relevant information to Fluke Networks for further analysis.

3.2 - Third Level Technical Support Provided by Fluke Networks: If the communications service provider channel is providing First and Second level support, Third Level Technical Support will be provided only to that channel’s technical support personnel.  If Fluke Networks is providing all three levels of support, then this support will be provided as appropriate and as part of the support escalation process.

3.3 - Gold Software Support Program will provide an error correction and problem solving service as follows: If the member discovers that the then-current supported version of Software fails to conform with any part of the description of the Software provided to member by Fluke Networks, then Fluke Networks, upon receiving notification of the error, shall use its reasonable efforts to:

3.3.1 - Diagnose and resolve the reported error or problem; and provide the required solution to remedy or correct the error or problem.

3.3.2 - Provide member with all assistance reasonably required by member to enable member to implement the error correction supplied as soon as possible.

3.3.3 - Correct errors by “fix” where Fluke Networks, in its sole discretion, considers such to be appropriate.

3.3.4 - Remote connection support shall only be provided by Fluke Networks in the event that telephone, fax or email support does not resolve a problem.

3.4 - Error Priority Levels: Fluke Networks shall exercise commercially reasonable efforts to correct any Error in the Software and the two Previous Releases in accordance with the priority level reasonably assigned to such Error by Fluke Networks.

Critical Errors (Priority 1): A Priority 1 situation exists when a customer’s network is completely down or the Software performance is severely degraded, causing critical impact to the business operations if the Software is not restored quickly.  No work-around exists.

•  Call Back Time: 2 hours maximum
•  Response shall be as follows:
  •  Assign engineers to correct the Error;
  •  Notify Fluke Networks management that such Errors have been reported and of steps being taken to correct such Error(s);
  •  Provide periodic reports on the status of the corrections; and
  •  Use best commercially reasonable efforts to provide a work-around or Fix as quickly as possible.

Serious Errors (Priority 2):  A Priority 2 situation exists when a customer’s Software performance is degraded.  This degradation in Software performance is impacting significant aspects of the business operations.  A work-around exists to bring the Software back online and in accordance with technical specifications.

• Call Back Time: 4 hours
• Response shall be as follows: 
  • Provide existing fix, and
  • Exercise commercially reasonable efforts to include the Fix for the Error in the next regular Software Update release.

3.5 - The Gold Software Support Program described above shall not include service in respect to:

3.5.1 - Defects or errors resulting from any modifications of the Software, Updates, or Upgrades made by any person other than Fluke Networks.

3.5.2 - Incorrect use of the Software, Updates, Upgrades or operator error.

3.5.3 - Any fault in member hardware, computer equipment or in any programs used in conjunction with the Software or Updates or Upgrades.

3.5.4 - Defects or errors caused by the use of the Software or Updates or Upgrades on or with equipment or programs not approved by Fluke Networks.

3.5.5 - Fluke Networks shall have no obligation to support Software that is not either, (1) the then-current release or one of the two immediately previous Releases, or (2) a Release that was shipped by Fluke Networks within the last twenty-four (24) months.

4. PAYMENT TERMS AND TERM OF AGREEMENT

4.1 - Full payment for the Gold Support Program agreement is to be made at purchase, unless otherwise stipulated. No refunds will be granted for unused services. Customers who decide after purchase that the Gold Support Program is not for them, at Fluke Networks discretion, customers may receive a credit of the balance of the unused contract towards other GOLD Support Program contracts (whole months rounded), limited to a maximum of six (6) months of the agreement. This credit will also be debited the List Price of any services rendered. Customers that have utilized repair, accessory replacement, calibration services or had a firmware release made available via the Program during the term of the contract being cancelled are ineligible for cancellation credit. All Gold Software Support Program contracts are ineligible for cancellation credit.

4.2 - An account is considered delinquent under the following circumstances: a) Fluke Networks loaner or customer’s replaced (exchange) equipment is overdue to the Fluke Networks designated return location b) The customer has failed to complete the purchase process with specified terms.

4.3 - Grounds for termination include: a) Customer is delinquent with equipment b) Non-payment for membership c) Customer resides in a country on the US Department of Commerce embargo list d) Customer is found to be falsifying any claims on mainframes or accessories e) Customer knowingly used agreement to take advantage of services and entitlements for products not covered.

4.4 - The Gold Support Program is non-transferable to a new owner if the mainframe or hardware is resold.  Fluke Networks software license agreements and accompanying Gold Software Support are non-transferable.

5. GENERAL INFORMATION

5.1 - Fluke Networks Standard Warranty is twelve months on hardware products, accessories are covered for 90 days, and personality modules carry no time-based warranty once out of the original packaging unless determined to be defective. Standard warranty coverage requires return of products to Fluke Networks for repair or replacement.  There are no guarantees under standard warranty coverage as to how quickly a repair can be completed and how soon a functioning product can be returned to the customer.  If you require a committed response time, Fluke Networks offers Gold Support Program services coverage. 

5.2 - Any product, mainframe or accessory, either abused or simply “worn out” due to normal usage does not qualify for Gold Support Program services. Fluke Networks reserves the right to determine if the cause of failure or out of specification performance is due to abuse of the product. Should we determine that the product failure is due to abuse, any applicable warranty or Gold Support Program coverage will be immediately voided for that product. Abuse includes damage resulting from dropping the instrument. Future coverage will be denied to this product unless it has undergone repair and is deemed suitable for coverage by an authorized Fluke Networks service repair facility. In the case of personality modules, permanent link adapters and fiber launch leads, customers will be entitled to a maximum of one set per year per the terms of this agreement.

5.3 - Hardware must have been continuously covered by the standard warranty or Gold Support Program coverage to be eligible for Gold Support repair services.  An out of warranty mainframe must be judged “warranty supportable” by a Fluke Networks authorized service center to be eligible for initiation or re-installment into the program. There is a nominal charge for this service; however, the customer may forego the charge, but they must wait a minimum of thirty (30) days before using any repair/exchange or loaner entitlements of the program.

5.4 - In order to be eligible for Gold Software Support Program renewal, the Software must have been continuously covered by a Gold Software Support Program contract.   Gold Software Support Program coverage that has lapsed can be brought to current status by purchasing sufficient months of service to cover the lapsed period plus 12 months.  In such an instance, the Gold Software Support Program start date will be back-dated to the next day after original service expiration.

5.5 - Calibration is the precision adjustment of electronic measurement characteristics, traceable to officially recognized standards. Certificates are not available in all countries free of charge due to local government regulations. This service is offered once annually, free of charge to Gold Support Program members. Traceable calibration data can be provided upon request for an additional fee. In certain countries, these services are performed by authorized service partners.  In certain situations Fluke Networks is unable to pay for return shipping/VAT/duties/ insurance/handling.

5.6 - Fluke Networks strives to provide Gold Support within as many countries as possible. The repair/loaner exchange, extended accessory warranty and calibration benefits are currently available within the following countries only. Countries not mentioned are not currently part of Gold Support Program – speak with your Sales representative for other support options:
 

5.7 - Priority access to the “Reconditioned” Equipment list for Fluke Networks is one of the entitlements that the Gold Support Program offers. All products purchased through the reconditioned equipment inventory at Fluke Networks offer our standard one-year warranty beginning on the date of purchase. Please see our limited warranty and limitation of liability for more details.

Reconditioned used equipment, as the term implies, has been previously used and as such presents the possibility of having extremely minor cosmetic wear. Any noticeable aesthetic damage to the product has either been replaced or repaired prior to being placed on the list. Additionally, the product is placed through a rigorous QA audit to ensure that it functions to specification. In relatively few cases, the product will contain accessories or appearances that have since been revised. This will in no way alter the performance of the product.

6. LIMITATIONS OF LIABILITY

6.1 - THESE TERMS AND CONDITIONS DO NOT CONSTITUTE A PRODUCT WARRANTY. THE PRODUCT AND ALL MATERIALS RELATED TO THE PRODUCT ARE SUBJECT EXCLUSIVELY TO THE WARRANTY ACCOMPANYING THE PRODUCT AT TIME OF PURCHASE.

6.2 - IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF FLUKE NETWORKS OR THIRD PARTY PROVIDERS UNDER THESE TERMS OR IN CONNECTION WITH THE GOLD SUPPORT PROGRAM, UNDER ANY THEORIES OF ACTION WHATSOEVER OR IN ANY FORUMS, EXCEED THE ORIGINAL PURCHASE PRICE PAID FOR THE PRODUCT COVERED BY THE GOLD SUPPORT PROGRAM.  IN NO EVENT SHALL FLUKE NETWORKS OR THIRD PARTY PROVIDERS BE LIABLE UNDER THESE TERMS OR IN CONNECTION WITH THE GOLD SUPPORT PROGRAM FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA AND INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. DEFINITIONS

What follows are broad definitions of terms used in this Agreement. They are further defined by Fluke Networks normal business practices and procedures.

ACCESSORIES:  Accessories are any products that accompany the mainframe product. They include, but are not limited to, battery packs, channel adapters, link adapters, cables, leads, clips, personality modules, cases and connectors. Accessories covered within the Gold Support Program do NOT include individually purchased or ancillary accessories.

CRITICAL ERROR (Priority 1):  A Priority 1 situation exists when a customer’s network is completely down or the Software performance is severely degraded, causing critical impact to the business operations if the Software is not restored quickly.  No work-around exists.

END USER: End user is defined as the party authorized to contact and access the Gold Support Program. The end user may or may not be the purchaser or contact for the agreement.

ENHANCEMENTS: Enhancements are defined as a modification that changes the product form, fit or function. Software and firmware upgrades to a product are not considered enhancements.

ENTITLEMENTS: Entitlements are the benefits and products to which the purchased support provides. Members may access their benefits immediately upon purchase (unless their unit is out of warranty in which case they will be required to have the unit performance verified or to wait 30 days before using any repair/exchange or loaner features of the program). For security reasons, proof of purchase may be required in certain instances if we are unable to identify the user.

ERROR: An error in the Software that degrades the Software as compared to published performance specifications.

ERROR CORRECTION: Use of reasonable commercial efforts to correct Errors.

FIX:  Repair or replacement of object or executable code versions of Software to remedy an Error.

HARDWARE: Hardware refers to physical equipment that is covered by the contract.

MAINFRAME: The mainframe is the primary piece of equipment (hardware and software) that is covered by the contract.

OPTIONS: Options are new software or firmware functionality (not upgrades) that can be purchased after owning a hardware mainframe. Options are not included with the original mainframe purchase and are not provided free of charge to Gold Support members.

PREVIOUS RELEASE: The release of Software that has been replaced by the then-current release of the same Software.

PRODUCT: Fluke Networks hardware, software, mainframe or accessory, which is covered by a valid Gold Support Program annual service contract.

SERIOUS ERROR (Priority 2):  A Priority 2 situation exists when a customer’s Software performance is degraded.  This degradation in Software performance is impacting significant aspects of the business operations.  A work-around exists to bring the Software back online and in accordance with technical specifications.

SOFTWARE: The software program(s) licensed by Fluke Networks to the licensee that is covered by a Gold Software Support Program subject to these Terms and Conditions.  It may also refer to a program that was sold with a mainframe or hardware appliance. In no case shall Gold Software Support Program coverage be construed to cover ‘Operating System Software’. For additional terms and conditions relating specifically to software, see “Gold Software Program Terms and Conditions”

TECHNICAL SUPPORT: Support services as described in these Gold Software Support Program Terms and Conditions.

UPDATE:  A modification to the software product within the current version.  Typically, these are known as ‘dot releases’, i.e.: 3.1, 3.2 and 3.3 are dot releases to base software program release 3.0.  Updates are provided to Gold Software Support Program customers at no additional charge.

UPGRADES: A major revision to existing Software that augments current functionality.   These are typically referred to as major version releases, and are accompanied by a new leading digit in the software version identification i.e.: 3.x to 4.x Software Upgrades are also provided to Gold Software Support Program customers at no additional charge.

WORK AROUND: A change in the procedures followed or data supplied by Fluke Networks to avoid an Error without substantially impairing the end-user customer’s use of Software.