SONARDYNE INTERNATIONAL LIMITED
HIRE TERMS FOR PRODUCTS AND SERVICES
THIS AGREEMENT (“Agreement”) is made on (“Commencement Date”)
(1) SONARDYNE INTERNATIONAL LIMITED (registered number 01299452) a company incorporated in England and Wales whose registered office is at Ocean House, Blackbushe Business Park, Saxony Way, Yateley, Hampshire GU46 6GD, UK (“Sonardyne”); and
(2) [CUSTOMER’S FULL TITLE] (registered number [INSERT]) a company incorporated in [INSERT] whose [registered office/[principal place of business] is at [INSERT] (“Customer”).
1.1 Sonardyne is a global subsea engineering company specialising in the design, manufacture and supply of acoustic positioning, inertial navigation, acoustic and optical communications, sonar imaging, wireless control and autonomous data acquisition products for a diverse range of underwater applications.
1.2 Customer is [INSERT].
1.3 Sonardyne agrees to supply and Customer agrees to take on hire the Products for the Hire Period and Sonardyne agrees to supply the Services, all in consideration of payment by the Customer to Sonardyne of the Charges and subject to the terms of this Agreement.
2.1 In this Agreement, the following definitions and rules of interpretation shall apply:
“Affiliate” of Sonardyne or the Customer means, respectively, any corporation, company, firm, partnership or other entity that, directly or indirectly, controls, is controlled by, or is under common control with the relevant party. For the purposes of this definition, “control” shall mean the ownership of at least 50 percent (50%) of the voting share capital of such entity or any comparable equity or ownership interest and /or the ability to appoint or replace the majority of the board of directors;
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Charges” means the amounts to be paid by the Customer to Sonardyne for the hire of the Products and provision of the Services as specified in the Schedules of this Agreement, subject to the provisions of this Agreement;
“Commencement Date” means the date of this Agreement;
“Confidential Information” means any confidential information disclosed by one party concerning the business or affairs of that party or its Affiliates, including but not limited to information relating to that party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers but excludes confidential information that is already in the public domain other than by breach of a confidentiality agreement between the parties or is already known to the other party without restriction;
“Customer Materials” means all and any information, specifications, plans, concepts, drawings, designs and other materials supplied by or on behalf of the Customer, in any format;
“Delivery” means the making available of the Products to the Customer for hire which shall unless otherwise stated in this Agreement be at Sonardyne’s or its stated third party’s premises in accordance with clause 8.1;
“Delivery Date” means the date that Delivery is made as defined in clause 8.1;
“Due Date” shall have the meaning in clause 12.3;
“Equipment” means tangible deliverables supplied for hire by Sonardyne under this Agreement as specified in Schedule 1, excluding Software and documentation;
“Expected Period” has the meaning stated in Schedule 2;
“Force Majeure Event” means an event beyond the reasonable control of a party (or any person acting on its behalf), and includes, without limitation, acts of God, storms, floods, fires, sabotage, strikes, lockouts, other industrial disputes, vandalism, riots, civil commotion or other civil unrest, the effects of legislation, regulation, refusal of export licence or any other government refusal, embargo or intervention, or other legal intervention, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources or severe transport disruption;
“Hire Term” means the period for which Sonardyne agrees to hire and the Customer agrees to take on hire the Products as stated in Schedule 2, subject to the provisions of that Schedule;
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world and “Intellectual Property Right” means any one of the Intellectual Property Rights;
“Minimum Period” has the meaning stated in Schedule 2;
“Month” means a calendar month;
“Personnel” means all officers, directors, employees and other persons hired as consultants, workers, agency personnel or in any other capacity or under any form of contract;
“Products” means the Equipment and/or Software and/or documentation to be supplied for hire by Sonardyne to the Customer under this Agreement as specified in Schedule 1;
“Representatives” means employees, officers, agents, consultants or sub-contractors of a party;
“Services” means the services listed in Schedule 3 or otherwise identified in this Agreement;
“Shipment” means as defined in clause 8.2;
“Shipment Charges” means the charges specified in clause 11.3;
“Software” means deliverables comprising computer code supplied as either Sonardyne Software, or Third Party Software in object code, whether embedded within Equipment, or supplied with Equipment, or supplied separately from Equipment, by Sonardyne under or in connection with this Agreement;
“Sonardyne Software” means any Software, the Intellectual Property Rights to which are owned by Sonardyne or its Affiliates;
“Specification/s” means the Sonardyne agreed specification/s of the Products and/or Services;
“Terms” means the general terms and conditions set out in this document;
“Third Party Software” means any Software the Intellectual Property Rights to which are owned by a third party other than Sonardyne or its Affiliates;
“Warranties” has the meanings stated in clause 5 and “Warranty” and “Warrants” shall be interpreted accordingly;
“Warranty Period” means the period stated as such in this Agreement, or if none is stated, then for the Hire Term, provided that for the Warranty Period, the Customer complies with the maintenance provisions of this Agreement or as stated in a separate maintenance agreement agreed between the parties;
“Year” means a calendar year.
2.2 In this Agreement:
2.2.1 references to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision;
2.2.2 words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, company, body corporate and unincorporated association and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
2.2.3 the words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible;
2.2.4 clause, schedule and paragraph headings shall not affect the interpretation of any provision of this Agreement;
2.2.5 a reference to or references to:
188.8.131.52 a “party” or the “parties” means as the context requires, Sonardyne, the Customer, or both of them;
184.108.40.206 “writing” or “written” includes faxes and e-mail;
220.127.116.11 a “document” is a reference to that document as varied in accordance with this Agreement or by agreement between the parties;
18.104.22.168 “clauses” and “schedules” are to the clauses and schedules of this Agreement;
22.214.171.124 any obligation on a person not to do something includes an obligation not to agree or allow that thing to be done.
3 SUPPLY OF THE PRODUCTS AND SERVICES
3.1 Sonardyne shall supply and the Customer shall hire the Equipment and/or receive the Services and/or licence the Software in accordance with this Agreement for the Hire Term.
3.2 Unless specifically stated herein, Sonardyne will not supply and is not responsible for any installation, commissioning, decommissioning or training services in relation to the Products supplied.
4 ORDERS AND CONTRACTS
4.1 Sonardyne may assign an order number to each delivery of the Products and shall notify such order numbers to the Customer together with the estimated date by which the Products will be ready for Delivery. Each party shall use the relevant order number in all subsequent correspondence relating to the Products.
4.2 No terms of the Customer shall be incorporated into or otherwise form part of this Agreement, whether appearing on a purchase order, acceptance note or any other document.
5.1 Provided that the Customer complies with the maintenance provisions of this Agreement or as stated in a separate maintenance agreement agreed between the parties, the following Warranties (each a “Warranty”) are given by Sonardyne with regard to the quality and performance of Products supplied by it to the Customer under this Agreement:
5.1.1 Equipment shall be free in all material respects from defects in materials and workmanship discovered during the Warranty Period;
5.1.2 Sonardyne Software shall comply in all material respects with the applicable Specification during the Warranty Period;
5.1.3 Sonardyne shall pass on the benefit of any remaining warranty regarding the performance andcorrection of Third Party Software enforceable by it and which it can pass to the Customer;
5.1.4 Products shall at the date of Delivery, comply with all applicable UK statutory and regulatory requirements except as excluded by clause 5.4 below.
5.2 Sonardyne Warrants that the Services supplied to the Customer by Sonardyne under this Agreement will be performed by appropriately qualified and trained personnel, with reasonable skill and care and materially in accordance with the applicable Specification.
5.3 Claims with regard to the above Warranties shall be made in accordance with and are subject to the terms of clause 9.
5.4 THE ABOVE WARRANTIES ARE GIVEN IN LIEU OF STATUTORY AND OTHER IMPLIED CONDITIONS AND WARRANTIES. ALL WARRANTIES, CONDITIONS, TERMS AND LIABILITIES EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ON THE PART OF SONARDYNE, IN RESPECT OF COMPLIANCE WITH DESCRIPTIONS, MERCHANTABILITY, THE QUALITY, WORKMANLIKE PERFORMANCE OR THE FITNESS FOR PURPOSE OF THE PRODUCTS AND THE SERVICES WHICH ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT ARE EXCLUDED EXCEPT TO THE EXTENT SUCH EXCLUSION IS PROHIBITED OR LIMITED BY LAW AND ARE SUBJECT TO THE LIMITATIONS SET FORTH IN CLAUSES 9 AND 14.
6 TERMS RELATING TO SERVICES
6.1 The scope of any Services will be as set out in this Agreement or any separate contract referred to in this Agreement.
6.2 Where any Services are purchased under this Agreement:
6.2.1 the Customer must provide to Sonardyne all information, facilities, instructions and responses relating to the required Services and/or associated Products or otherwise, required by Sonardyne, within a sufficient time to enable Sonardyne to perform its obligations;
6.2.2 the Customer is responsible for obtaining all necessary consents, licences and permits relating to, and for the accuracy and legality of, all information provided, including all Customer Materials.
6.2.3 on completion of the Services, the Customer will either be required to participate in any Sonardyne acceptance testing and to sign a Sonardyne acceptance certificate or will be provided with an engineer’s visit report;
6.2.4 the Services will be treated as accepted and satisfactorily completed on the signing of such certificate, the delivery of the engineer’s visit report, and in any event will be treated as accepted if seven or more days has elapsed since the date that Sonardyne notified the Customer that the Services were complete.
6.2.5 any support services provided by Sonardyne with regard to Products shall be subject to the support terms provided or otherwise stated on Sonardyne’s website for such support.
7 CUSTOMER OBLIGATIONS
7.1 Except to the extent that Sonardyne has agreed to provide specified consultancy Services regarding Product selection, the Customer shall be responsible for its own Product selection and for ensuring the suitability of the Products for the required purpose.
7.2 The Customer is responsible for obtaining all necessary consents, licences and permits relating to its use of the Products and/or Services.
7.3 The Customer shall accept delivery and shipment of the Products in accordance with the provisions of clause 8 below.
7.4 The Customer shall indemnify, defend, hold harmless and release Sonardyne at all times against all claims, demands, costs (including legal costs on a full indemnity basis), expenses, losses and liabilities incurred by Sonardyne as a result of:
7.4.1 Sonardyne following any designs, specifications, instructions or other reliance on Customer Material;
7.4.2 any claim that the Customer Materials, or any part of them infringe any rights of any third parties, including any Intellectual Property Rights;
7.4.3 the Customer having failed to install, commission or use the Products using suitably experienced and trained personnel or in accordance with instructions and licences supplied by Sonardyne and/or the manufacturer of the Products.
7.5 The Customer shall inspect the Products upon receipt and notify any defect in them to Sonardyne in writing within 48 hours of Shipment. If no such notification is received it shall be conclusively presumed that they are complete and in good order, and condition and fit for the purpose for which they are required and in every way satisfactory to the Customer.
7.6 The Customer shall allow Sonardyne or its duly authorised representative, upon reasonable notice given at any time, access to inspect the Products. The Customer shall keep an accurate list of the details of all Products including their location and shall provide an up to date copy to Sonardyne upon request.
7.7 The Customer shall use and maintain the Products in a skilful and proper manner and in accordance with any operating instructions issued for them, and to ensure that the Products are operated and used by properly skilled and trained personnel.
7.8 The Customer shall clean and keep the Products at its own expense at all times in good condition (fair wear and tear excepted) making available to Sonardyne full records thereof.
7.9 The Customer shall make no alteration to the Products and not remove any existing components or identification markings from the Products, unless it is removed in the ordinary course of repair and maintenance (including the removal and replacement of batteries and other consumables, which shall be the responsibility of the Customer) in which case as soon as practicable, a replacement shall be fitted.
7.10 The Customer shall be responsible for the safe usage of the Products and shall comply with all statutory and other obligations of all kinds in relation to the Products and the use of them and at its own expense add to or install with the Products any safety or other equipment required by any applicable law or regulation to be so added or installed for the safe use of the Products.
7.11 The Customer shall protect the Products against distress, execution or seizure.
7.12 The Customer shall operate the Products in accordance with UK Government and other applicable export licencing and permit regulations and shall notify Sonardyne of any breach of the same immediately.
7.13 The Customer shall be liable for any loss, theft, damage or destruction of or to the Products, howsoever caused, (inclusive of whilst in transit), fair wear and tear excepted.
7.14 The Customer shall be liable for the provision of insurances against all liability to third persons for death, personal injury and damage to, or loss of property arising directly or indirectly, out of the use, possession, or operation of the Products for such amount as is prudent in all the circumstances.
7.15 The Customer shall not sell or offer for sale, assign, mortgage or pledge, any of the Products or allow the creation of any charge, encumbrance, lien, or other interest to arise over them.
7.16 The Customer shall be responsible for all losses and liabilities (including legal expenses on a full indemnity basis) arising from the Customer’s breach of this Agreement, or from the possession or use by the Customer of the Products or their repossession.
7.17 The Customer shall on or before the expiration or termination of the Hire Term return the Products to Sonardyne at the Customer’s cost, to such address as Sonardyne shall reasonably require (or otherwise to Sonardyne’s head office). In the event of failure to so do, the Customer shall allow Sonardyne and its representatives (and shall ensure that any third parties also allow) access to any premises where the Products are located for the purpose of performing such return at the cost and expense of the Customer. The Customer shall accurately notify Sonardyne in writing of the location/s of the Products upon request.
7.18 The Customer shall continue to pay the Charges for the hire of the Products until returned to Sonardyne.
7.19 In the event that the Products are lost during the Hire Term the Customer shall pay to Sonardyne on demand the full replacement price of any lost item unless otherwise agreed between the parties.
8 DELIVERY AND SHIPMENT
8.1 Place and means of Delivery. Unless otherwise agreed in writing, delivery of Products shall be made at Sonardyne’s, and/or its specified Affiliate’s or third party’s premises, when Sonardyne, or its specified Affiliate or third party, advises the Customer by email, fax, or if necessary verbally by telephone followed up by email or fax, that the Products are ready for shipment (“Delivery” and “Delivery Date” respectively).
8.2 Shipment. Following Delivery in accordance with clause 8.1, shipment shall be made as follows:
8.2.1 Where the Customer has notified Sonardyne in advance of or at the time of Delivery, that it has chosen to arrange for collection of the Products, the Customer shall collect the Products from Sonardyne’s and/or its specified Affiliate’s or third party’s premises within five Business Days of the Delivery Date; or
8.2.2 If the Customer has not notified Sonardyne in advance of or at the time of Delivery that it wishes to arrange for collection of the Products, or has advised Sonardyne that it wishes Sonardyne to arrange for shipment, then Sonardyne shall proceed to arrange shipment to the Customer as agent for the Customer and in accordance with clause 11.3.
8.2.3 At its discretion, Software may be shipped by Sonardyne integrated with the Equipment, by supply of the Software on a disk, or by download over the internet whether or not subject to activation by the Customer.
8.3 Any dates quoted or estimated for the Delivery Date, or date of shipment or receipt of the Products or performance of the Services are approximate only and the time for Delivery, shipment or receipt of the Products, or completion of the Services shall not be of the essence. The Products may be delivered or shipped by Sonardyne in advance of any quoted or estimated delivery or shipping date upon giving reasonable notice to the Customer.
8.4 The Customer acknowledges that Sonardyne is not responsible for procuring or securing delivery to the end destination required by the Customer, where the Products will be installed or otherwise used.
8.5 Sonardyne may deliver the Products by instalments. Where the Products are delivered in instalments, each Delivery and shipment failure by Sonardyne to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalment shall not entitle the Customer to treat the Agreement as a whole as repudiated.
8.6 Notwithstanding clause 8.3, if Delivery by Sonardyne of any Products or performance of the Services has not been made within a reasonable period after the advised estimated date for Delivery of the Products or performance of the Services, the Customer shall be entitled to terminate the Agreement in respect of those Products or Services by written notice to Sonardyne provided that:
8.6.1 the Customer has previously notified Sonardyne in writing that the affected Product or Service has not been Delivered or provided on or before the expected Delivery date, or date for provision of the Services; and
8.6.2 a revised Delivery Date or performance date or period has been mutually agreed; and
8.6.3 Sonardyne has failed to Deliver or otherwise perform within that revised period.
Any liability of Sonardyne however arising in respect of delays in Delivery or performance, shall be limited to a credit of the price due or a refund of sums paid by the Customer for those Products or Services not Delivered or provided. In no circumstances shall Sonardyne have any further liability to the Customer in damages or otherwise for non-delivery or non-performance or late delivery or performance of any of the Products or Services.
8.7 Sonardyne shall have no liability for any failure or delay in delivery to the extent that such failure or delay is caused by the Customer’s failure to comply with its obligations under this Agreement.
8.8 If the Customer fails to take possession of the Products in accordance with clause 8.2 (or otherwise if some other delivery or shipment method is agreed) otherwise than due to breach by Sonardyne, then, in relation to the uncollected or refused Products, Sonardyne shall be entitled (without prejudice to its other rights under this Agreement or at law) to:
8.8.1 require the Customer to pay any costs of storage, or a reasonable charge for storage; and/or
8.8.2 require the Customer to pay any Shipment Charges; and /or
8.8.3 sell or hire the Products to a third party after giving reasonable period of notice (as determined by Sonardyne) to the Customer; and/or
8.8.4 retain any sums paid as deposit for the Products.
8.9 Each shipment shall be accompanied by a delivery note or commercial invoice, from Sonardyne showing the Order number, or other reference, the date of the delivery note and the type or part number and quantity of Products.
8.10 Where a delivery note, commercial invoice, or certificate of conformity is provided, this shall be conclusive evidence that the Products were in a satisfactory condition on leaving the custody of Sonardyne.
8.11 Sonardyne shall use all reasonable endeavours to obtain export licences to enable shipment of the Products to the Customer and the Customer shall provide all necessary information and assistance to Sonardyne to enable the same, in a timely manner. The Customer shall otherwise be responsible for obtaining all required export and import licences, clearances and any other documentation necessary for the despatch of the Products and their delivery to their end destination, except for any matters agreed in this Agreement to be the responsibility of Sonardyne.
8.12 Without affecting the obligation of the Customer under clause 8.11, the Customer will, if requested, notify Sonardyne, and if required provide such further evidence as Sonardyne may require, of the location of the expected end destination for each shipment of Products.
8.13 The Customer shall provide Sonardyne with such documentation and information as Sonardyne may require for taxation, regulatory or reporting purposes, including as required in order to answer or respond to the queries or investigations of any regulatory authority, wherever located
9 WARRANTY CLAIMS
9.1 The provisions of this clause 9 shall apply if the Customer makes any claim that Sonardyne is in breach of Warranty.
9.2 Any claim under a Warranty must be notified in writing to Sonardyne before the expiry of the Warranty Period by email addressed for the attention of the Quality Manager at [email protected]
9.3 In the event of any claim under the Warranty:
9.3.1 the Customer must promptly notify Sonardyne in accordance with clause 9.2, of the claim and in any event within 14 days of the alleged fault first arising;
9.3.2 unless otherwise agreed by Sonardyne in writing, the Customer must immediately cease use of the alleged defective Product, and confirm to Sonardyne that this has been adhered to;
9.3.3 the Customer must return the affected Product to the location notified by Sonardyne at its own cost;
9.3.4 Sonardyne will investigate the claim and the Customer shall provide all information and assistance that may be required by Sonardyne;
9.3.5 Sonardyne shall determine whether or not the Product is defective under the Warranty and if it does determine that there has been a breach of the Warranty, shall decide at its discretion to either repair or replace the defective Products or part of the defective Products;
9.3.6 the Customer shall in any event be responsible for the return of the repaired or replaced Product to the Customer and for all costs associated with the detachment, decommissioning, removal, replacement and re-attachment, re-installation and re-commissioning of the repaired or replaced Products;
9.3.7 risk of loss of or damage to Products shall be with the Customer at all times other than when they are in the custody of Sonardyne.
9.4 Sonardyne’s only liability in respect of any Product supplied in breach of the Warranty or otherwise relating to any allegation of any defect in Products supplied shall be the repair or replacement of the defective Products or part of the defective Products (or in the case of Sonardyne Software, the provision of a workaround; and in the case of Third Party Software, its obligations under clause 5.1.3) in accordance with this clause 9.
9.5 Sonardyne shall not be liable for Products’ failure to comply with the Warranty if any of the following events or circumstances applies:
9.5.1 the Customer makes any further use of such Products after giving notice in accordance with clause 9.3.1 unless otherwise agreed by Sonardyne in accordance with clause 9.3.2;
9.5.2 the defect arises because the Customer has failed to follow Sonardyne’s or a manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good industry practice regarding the same;
9.5.3 the defect arises as a result of Sonardyne following information contained in any Customer Materials or any other instructions or requirements of the Customer;
9.5.4 the Customer or a third party alters or repairs such Products without the written consent of Sonardyne;
9.5.5 the defect arises as a result of fair wear and tear, any externally caused damage, whether by the Customer or otherwise (whether wilful, malicious, accidental or otherwise) negligence of the Customer or any third party, or abnormal or otherwise inappropriate storage or working conditions;
9.5.6 the Customer has failed to install the latest version or release of Software as recommended by Sonardyne in writing if using such version or release would avoid such defect; or
9.5.7 failure by the Customer to comply with the provisions for maintenance of the Products itself or by Sonardyne.
10 TITLE AND RISK
10.1 Risk of loss of or damage to Products shall pass to the Customer:
10.1.1in the case of Products to be delivered under clause 8.1, on Delivery;
10.1.2 where it is agreed in this Agreement that Products are to be delivered otherwise than under clause 8.1, then at the time and place agreed in writing.
10.2 Title to Equipment shall not pass to the Customer and shall at all times remain with Sonardyne.
10.3 If the Customer becomes subject to any of the events in clause 23.1.2 then without limiting any other right or remedy Sonardyne may have, Sonardyne may at any time require the Customer to deliver up such Equipment and associated Software and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are situated in order to recover them and the Customer shall provide all reasonable assistance to Sonardyne.
11.1 The Charges are exclusive of amounts in respect of applicable taxes and levies and any charges or imposts of any kind including VAT, sales taxes, excise duties and import or export duties or fees. The Customer shall, on receipt of a valid invoice from Sonardyne, pay to Sonardyne such additional amounts in respect of any such amounts as are chargeable on the hire of Products and the supply of Services.
11.2 The Customer shall make all payments without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to Sonardyne such additional amount as will ensure that Sonardyne receives the same total amount that it would have received if no such withholding or deduction had been required unless required by law to pay the net amount, in which case the Customer shall fully co-operate with Sonardyne and shall provide such assistance and documentary evidence as requested in order for Sonardyne to re-claim the withheld tax from the relevant tax authority.
11.3 Charges exclude special packaging, insurance and freight/transport charges (“Shipment Charges”). Where Sonardyne arranges for shipment, it does so as agent for, and at the risk, of the Customer and Shipment Charges shall be levied in addition to the Charges at cost plus 15% unless otherwise expressly agreed by Sonardyne in writing in this Agreement.
12 TERMS OF PAYMENT
12.1 Sonardyne shall invoice the Customer for the hire of the Products as stated in Schedule 1.
12.2 In respect of Services, Sonardyne shall invoice the Customer in accordance with Schedule 3, and if no terms are specified, then at any time after performance of the relevant Services.
12.3 The Customer shall pay invoices in full and in cleared funds within 30 days of date of invoice (referred to as the “Due Date”). Payment shall be made to the bank account nominated in writing by Sonardyne.
12.4 If the Customer fails to make any payment due to Sonardyne under this Agreement by the Due Date, then, without limiting Sonardyne’s remedies including under clause 23.1:
12.4.1 the Customer shall pay statutory interest and compensation under the Late Payments of Commercial Debts (Interest) Act 1998 (as amended), or if Sonardyne elects, pay interest on the overdue amount at the rate of 3% per annum above Lloyds Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay all interest together with the overdue amount;
12.4.2 Sonardyne may suspend or cancel the hire of the Products and where relevant, suspend provision of the Services;
12.4.3 Sonardyne may require the Customer to pay any costs of storage, or a reasonable charge for storage, of undelivered Products;
12.4.4 Sonardyne may sell or hire to a third party any Products not yet delivered to the Customer;
12.4.5 Sonardyne may retain any sums paid as a deposit or advance payment for the hire of the Products.
12.5 Sonardyne shall have an action for the price and other sums due.
12.6 If the Customer disputes any invoice or other statement of monies due, the Customer shall immediately notify Sonardyne in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. Where only part of an invoice is disputed, the undisputed amount shall be paid on the Due Date as set out in clause 12.3.
12.7 Sonardyne, without limiting any other rights or remedies it may have, may set off any amounts owed to it by the Customer against any amounts payable by it to the Customer. The Customer shall not have any right of set off.
12.8 All payments payable to Sonardyne or the Customer under this Agreement shall become due immediately on its termination. This clause 12.8 is without prejudice to any right to claim for damages or interest under the law or under this Agreement.
13.1 Without affecting or increasing the liability of Sonardyne, during the Term, Sonardyne shall maintain in force the following insurance policies with reputable insurance companies:
13.1.1 public liability insurance with a limit of up to £1,000,000 (one million pounds sterling) for claims arising from a single event or series of related events in a year;
13.1.2 product liability insurance with a limit of up to £1,000,000 (one million pounds sterling) for claims arising from a single event or series of related events and for all events in total whether related or not in a year; and
13.1.3 employer’s liability insurance with a limit of at least £5,000,000 (five million pounds sterling) for claims arising from a single event or series of related events in a year.
13.2 The Customer shall ensure that it has in place adequate insurance in view of its obligations and risks under this Agreement and the use of the Products by it.
14.1 Sonardyne shall only be liable to the Customer in respect of claims notified to Sonardyne in accordance with this Agreement and in particular clauses 8 and 9 of these terms.
14.2 Sonardyne and Sonardyne Personnel shall have no liability:
14.2.1 for any advice given by Sonardyne Personnel free of charge which is not contracted to be provided under this Agreement, or;
14.2.2 for any defects or problems in the Products or Services in so far as caused by Sonardyne following the Customer’s specification, design or other instructions; or
14.2.3 for any defects or problems in so far as caused by the Customer not following Sonardyne’s specification, design or other instructions; or failing to install the latest version or release of Software as recommended by Sonardyne in writing if using such version or release would avoid such defects or problems.
14.3 Any liability Sonardyne may have for claims concerning damage to the physical property (excluding the Products) of the Customer or the Customer’s Personnel arising out of or in connection with this Agreement, the Products and Services, however arising, shall be limited to £5,000,000 (five million pounds sterling) in total, in respect of all claims.
14.4 Without prejudice to the other limitations on Sonardyne’s liability in this Agreement but subject to clauses 14.3 (physical damage) and 14.7, the liability of Sonardyne for any claims arising out of or in connection with this Agreement, the Products and the Services, however arising, shall be limited in respect of all claims in aggregate to a sum equal to 100% of the Charges payable (exclusive of VAT) by the Customer for the hire of the relevant Products and/or provision of the relevant Services under this Agreement giving rise to the claim, or £1 million, whichever is the lesser.
14.5 Without prejudice to clause 14.7, Sonardyne shall not, under any circumstances whatever, be liable, however arising for any:
14.5.1 direct or indirect loss of or damage to:
126.96.36.199 profit or revenues; or
188.8.131.52 goodwill or damage to reputation; or
184.108.40.206 business; or
220.127.116.11 production; or
18.104.22.168 business opportunity; or
22.214.171.124 bargain; or
126.96.36.199 anticipated saving; or
188.8.131.52 data, or for corruption of data or information; or
184.108.40.206 the cost of detachment, decommissioning or retrieval of any defective Products and the reattachment or commissioning of any repaired or replaced Products or items; or
220.127.116.11 any costs and liabilities arising from pollution or environmental damage caused directly or indirectly by the Products; or
14.5.2indirect or consequential loss or damage.
14.6 The term “however arising” when used or referred to in this clause 14 shall cover all causes and actions giving rise to liability of Sonardyne arising out of or in connection with this Agreement or the Products or Services:
14.6.1 whether arising by reason of any misrepresentation (whether made after, prior to and/or in the Agreement) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise;
14.6.2 whether arising under any indemnity and hold harmless provision;
14.6.3 whether caused by any total or partial failure or delay in supply of the Products or by any defect in hardware, software or materials; and
14.6.4 whether deliberate (but not with malicious intent) or otherwise, however fundamental the result.
14.7 The exclusions and limitations of liability contained in these Terms shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies Sonardyne of the possibility of any greater loss or damage but all such exclusions shall only apply so far as permitted by law and in particular nothing herein shall affect liability:
14.7.1 for death or personal injury caused by negligence to the extent prohibited by the Unfair Contract Terms Act 1977;
14.7.2 for fraudulent misrepresentation or other fraud; or
14.7.3 for any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
14.8 The Customer shall indemnify, defend, hold harmless and release Sonardyne and all Sonardyne Personnel at all times against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities incurred by Sonardyne and Sonardyne Personnel:
14.8.1 to the extent caused by following the Customer’s specification, design or other instructions; and
14.8.2 in relation to any claims by third parties arising in connection with this Agreement, or as a result of Sonardyne providing the Products or Services.
14.9 The Customer acknowledges:
14.9.1 the potential losses, damages or claims which the Customer may suffer as a result of any breach of this Agreement or other default by Sonardyne are more readily ascertainable by the Customer than by Sonardyne;
14.9.2 such losses, damages and claims may greatly exceed the sums paid under this Agreement and Sonardyne has agreed to the Charges only on the basis that it limits its liability in the manner stated in these terms;
14.9.3 that the Charges for the hire of the Products and the provision of the Services provided for under this Agreement reflect the exclusions and limitations on Sonardyne’s liability, and that the Customer had the opportunity to negotiate variations to the exclusions and limitations upon the agreement of a higher price;
14.9.4 the Customer must consider insuring any liability not accepted by Sonardyne under this Agreement and agrees that it is responsible for taking legal advice on the limits on Sonardyne’s liability;
14.9.5 the parties agree that such limits are fair and reasonable in all of the circumstances; and
14.9.6 nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under an indemnity and hold harmless provision or otherwise.
15 ASSIGNMENT AND SUB-CONTRACTING
The Customer may not assign or transfer or sub-contract any of its rights, benefits or obligations under this Agreement without the prior written consent of Sonardyne. Sonardyne may subcontract the performance of any of its obligations to an Affiliate.
16 INTELLECTUAL PROPERTY RIGHTS
16.1 All Intellectual Property Rights in the Products shall at all times remain vested in Sonardyne or the owner thereof. All Intellectual Property Rights arising out of Services shall at all times remain vested in Sonardyne. The hire of the Products by the Customer does not transfer any rights whatsoever to the design of or Intellectual Property Rights in the Products, nor does the Customer have any licence to duplicate, manufacture or copy the Products or any of the supporting documentation supplied by Sonardyne other than strictly as stated in this clause 16 or, with regard to Software, in clause 18.
16.2 All drawings, designs, samples and technical and other Confidential Information and materials whatsoever supplied by Sonardyne at any time remain Sonardyne’s exclusive property, must be returned upon demand, must be treated as confidential, and must not be loaned, copied or otherwise used without the consent in writing of Sonardyne except that any obligations contained in this clause shall not prevent any disclosure of Confidential Information which is required by law or court order.
17 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
17.1 Subject to the provisions of clause 17.2, Sonardyne undertakes at its own expense to defend the Customer or, at Sonardyne’s option, settle, any claim or action brought against the Customer during the Hire Term alleging that the possession or use of any Equipment or Sonardyne Software, (or any part thereof) in accordance with these Terms infringes any Intellectual Property Rights of a third party which exist in the United Kingdom and shall be responsible for any damages, costs (including legal fees) and expenses awarded against the Customer as a result of or in connection with such claim.
17.2 The provisions of clause 17.1 above shall not apply to an infringement claim which is attributable to:
17.2.1 possession, use, development, modification or maintenance of the Equipment or the Sonardyne Software (or any part thereof) by the Customer other than in accordance with these Terms;
17.2.2 use of a non-current release or version of the Sonardyne Software (including a failure to use or accept any modification or update or upgrade made available by Sonardyne);
17.2.3 use of Equipment or the Sonardyne Software in combination with any product not provided by Sonardyne;
17.2.4 reliance on any specification, information or coding provided by or on behalf of the Customer; or
17.2.5 use of the Equipment or Sonardyne Software other than for its normal use as envisaged by the applicable Specification.
17.3 The provisions of clause 17.1 shall not apply to an infringement claim unless the Customer:
17.3.1 promptly informs Sonardyne of any actual, potential, threatened or alleged infringement or claim;
17.3.2 allows Sonardyne to conduct and/or settle all negotiations, proceedings and litigation (including Alternative Dispute Resolution) and does not make any admission as to liability or compromise or agree to any settlement of any infringement claim without the prior written consent of Sonardyne; and
17.3.3 provides all assistance and information reasonably required by Sonardyne in connection with any potential or actual claim and shall, if Sonardyne so requests, join in any court or other proceedings relating to such infringement.
17.4 If any infringement claim is made, or in Sonardyne’s reasonable opinion is likely to be made, against the Customer, Sonardyne may at its sole option and expense:
17.4.1 procure for the Customer the right to continue using the affected Equipment or Sonardyne Software (or any part thereof) in accordance with these Terms; or
17.4.2 modify the Equipment or Sonardyne Software so that it ceases to be infringing; or
17.4.3 replace the Equipment or Sonardyne Software with non-infringing Equipment or Sonardyne Software; or
17.4.4 accept a return of the affected Equipment or Sonardyne Software whereupon the Charges in respect of the hire of the same shall cease.
18 USE OF SOFTWARE
18.1 In consideration of the payment of the Charges by the Customer to Sonardyne, Sonardyne grants to the Customer a personal, non-exclusive licence to use the Sonardyne Software in object code form (only) in accordance with this Agreement including limitations on the use of the Sonardyne Software for the Hire Term.
18.2 The Customer agrees not to:
18.2.1 make any copies of the Sonardyne Software (in any form or media) except where such copying is incidental to the permitted use of the Sonardyne Software by the Customer or where it is necessary for usual back-up or operational security;
18.2.2 make the Sonardyne Software or any copies of it available in any way to any third party, and in particular the Customer agrees not to share with or sub-licence, transfer, hire, rent, lease, or loan the Sonardyne Software to any third party, except where 18.3.2 permitted in writing by Sonardyne and in each case in accordance with the terms of this clause 18 including especially clause below;
18.2.3 adapt, vary, modify or alter the whole or any part of the Sonardyne Software or combine, merge or incorporate the Sonardyne Software into any other program;
18.2.4 part of the Sonardyne Software nor attempt to do any such things except to the extent that such actions cannot be prohibited in order to achieve inter-operability with another program under Section 296A of the Copyright, Designs and Patents Act 1988 and provided the information obtained by the Customer during such activities:
18.104.22.168 is used only for the purpose of achieving such inter-operability;
22.214.171.124 is not disclosed or communicated to any third party without Sonardyne’s prior written agreement;
126.96.36.199 without affecting the general nature of this provision, is not used to create any software which is substantially similar to the Sonardyne Software.
18.3 The Customer further agrees to:
18.3.1 keep all means of access and/or passwords required to access or use the Sonardyne Software and all copies of the Sonardyne Software secure;
18.3.2 ensure compliance with these Terms by the Customer’s and its Affiliates’ Personnel who have access to the same and to pass on the obligation to comply with the terms of this clause 18 by all parties to whom the Sonardyne Software is legitimately shared, sub-licenced, transferred, hired, rented, leased, or loaned under clause 18.2.2; and
18.3.3 include such branding, trademarks and copyright notices of Sonardyne on the Sonardyne Software as Sonardyne shall require.
18.4 The Customer shall permit Sonardyne to inspect and have access to any premises or vessels and to the computer equipment and systems located there, at or on which the Sonardyne Software is being kept or used, and any relevant records, for the purposes of ensuring that the Customer is complying with the terms of these Terms, provided that Sonardyne provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
18.5 The Customer acknowledges it has no right to have any access to the Sonardyne Software in source code form, or in unlocked coding of any kind. The Customer agrees that it must not attempt in any way to remove or circumvent any security devices present within the Sonardyne Software which are intended to protect the facility and integrity of the Sonardyne Software and the Customer agrees not to use any systems, processes, hardware or software in connection with the Sonardyne Software which are intended to circumvent such protections.
18.6 With respect to any Third Party Software, the Customer accepts the terms of the applicable third parties’ licences and maintenance agreements and shall only use the Third Party Software in accordance with the requirements of such licences and agreements. The Customer acknowledges that (without prejudice to clause 5.1.3) Sonardyne is not responsible for the functioning or performance of any Third Party Software or for any infringement claim caused by the use of Third Party Software and it is the responsibility of the Customer to enforce any rights and remedies it has under the terms of the said licence and maintenance agreements against the relevant third party.
With respect to Third Party Software that originates from Microsoft, such Third Party Software is provided subject to the relevant Microsoft End User Licence Agreement copies of which can be found at:
18.7 Where no separate third party licence agreement with regard to any specific Third Party Software is provided to the Customer in accordance with clause 18.6, or such license terms are not contained within this Agreement, then with regard only to such specific Third Party Software, the license provisions of clauses 18.1 to 18.5 shall apply as if in clauses 18.1 to 18.5 the definition “Sonardyne Software” reads “Sonardyne Software and Third Party Software”.
19 CUSTOMER’S PROPERTY
Sonardyne will take reasonable care of any of the Customer’s property which is in its custody and control.
20.1 Each party undertakes that it shall not at any time during the Agreement and after termination disclose to any person the Confidential Information of the other party, except as permitted by clause 20.2, and shall only use the other party’s Confidential Information as required to fulfil the Agreement or to exercise its rights under it.
20.2 Each party may disclose the other party’s Confidential Information:
20.2.1 to its Representatives (and in the case of Sonardyne to an Affiliate and their Representatives) who need to know such information for the purposes of carrying out that party’s obligations under the Agreement, provided that the disclosing party takes all reasonable steps to ensure that it’s Representatives (and in the case of Sonardyne an Affiliate and their Representatives) comply with the confidentiality obligations contained in this clause 20 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives’ (and in the case of Sonardyne its Affiliate and their Representatives’) compliance with the confidentiality obligations set out in this clause; or
20.2.2 with the disclosing party’s prior written agreement; or
20.2.3 as may be required by law, court order or any governmental or regulatory authority.
20.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from the Agreement. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.
21 COMMENCEMENT AND TERM
This Agreement shall commence on the Commencement Date and shall remain in effect until all obligations of the parties under the Agreement have been performed in full or until the Agreement is terminated in accordance with clause 23 (Termination), or in accordance with any other term of the Agreement permitting termination.
22 OVERSEAS OBLIGATIONS
22.1 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any applicable duties and levies.
22.2 The Customer acknowledges that the export of the Products may be subject to the export control regulations of the United Kingdom and /or other applicable jurisdictions and agrees as a condition of this Agreement that the Products will not be used in contravention of the terms of any applicable governmental export control or other regulations, licence, consent or permit.
22.3 In the event that any requisite governmental licence, consent or permit or other authorisation is delayed or cannot be obtained in fulfilment of any order under the Agreement, Sonardyne shall not be liable to the Customer in respect of any loss, damage or other resultant financial penalty.
23.1 Each party shall be entitled to terminate the Agreement with immediate effect by giving written notice to the other if:
23.1.1 that other party fails to pay any undisputed amount due under this Agreement on the required payment date (being the ‘Due Date’ in relation to sums owed by the Customer) and remains in default not less than 10 Business Days after being notified in writing to make such payment; or
23.1.2 that other party ceases trading, commences or is required to commence or participates in any activity associated with debt rescheduling, administration, bankruptcy, liquidation or winding up of the other party or other party’s Affiliates or subject to an attachment order on any part of its assets and such attachment order is not discharged within 14 days; or
23.1.3 that other party commits a material breach of its obligations under this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
23.1.4 any Force Majeure Event prevents Sonardyne from performing its obligations under this Agreement for any continuous period of three months.
23.2 If any of the circumstances in clauses 23.1.1 or 23.1.2 occur, this shall be a material breach of obligations for the purposes of clause 23.1.3.
23.3 Termination of this Agreement shall not prejudice any of the parties’ rights and remedies which have accrued hereunder as at termination.
24 OBLIGATIONS ON TERMINATION
24.1 On termination, the Charges shall be immediately payable without demand.
24.2 Additionally, on termination of this Agreement each party shall promptly:
24.2.1 return to the other party all Products, equipment, materials and property belonging to the other party that the other party had supplied to it or its Affiliates in connection with the supply and hire of the Products under this Agreement;
24.2.2 return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;
24.2.3 erase all the other party’s Confidential Information from its computer systems (to the extent possible); and
24.2.4 on request, certify in writing to the other party that it has complied with the requirements of this clause.
25.1 The Customer shall:
25.1.1 not engage in any activity which could constitute bribery or corruption and shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
25.1.2 act so as not to put Sonardyne, or its Affiliates or Representatives in breach of Sonardyne’s anti-corruption policies which can be found at https://www.sonardyne.com/ethics/anti-bribery-policy/ and, where relevant, procedures notified from time to time (“Relevant Policies”);
25.1.3 have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including adequate procedures to ensure compliance with the Relevant Requirements;
25.1.4 promptly report to Sonardyne any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of the Agreement;
25.1.5 immediately notify Sonardyne (in writing) if a foreign public official becomes an officer or employee of the Customer or acquires a direct or indirect interest in the Customer (and the Customer warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement);
25.1.6 from time to time if required by Sonardyne confirm in writing it has complied with clauses 25.1.1 to 25.1.5 and provide information reasonably required by Sonardyne in support of such compliance and provide all assistance to Sonardyne with any investigation in respect of the Relevant Requirements;
25.1.7 promptly report to Sonardyne if it is the subject of any investigation, inquiry, or enforcement proceedings or is debarred or suspended by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Relevant Requirements.
25.2 The Customer shall ensure that any person associated with it in connection with this Agreement does so on the basis of a written contract which imposes terms equivalent to those imposed on the Customer under this clause 25. The Customer shall be responsible for the observance and performance of such persons, and shall be directly liable to Sonardyne for any breach by such persons.
25.3 Notwithstanding any other terms of this Agreement and without prejudice to any accrued rights it may have under this Agreement or otherwise, Sonardyne shall be entitled to suspend performance of this Agreement in whole or in part with immediate effect if at any time the Customer is in breach of clause 25.1 or 25.2 or any of the events referred to in clause 25.1.1, 25.1.4 or 25.1.7 occur or are alleged and, in the opinion of Sonardyne, are prejudicial to Sonardyne’s interests.
25.4 For the purpose of this clause 25, the meaning of “adequate procedures” and whether a person is “associated with” another person shall be determined in accordance with the Bribery Act 2010 and any related guidance issued pursuant to that Act.
25.5 The Customer shall indemnify, defend and hold harmless and keep Sonardyne indemnified against all sums suffered or incurred by Sonardyne and its Affiliates in respect of all and any demands, liabilities, expenses, claims (including but not limited to any settlements of claims whether before or after the issue of proceedings), judgment sums (including but not limited to sums arising from consent orders or judgments), damages, direct, indirect or consequential losses, costs (including but not limited to legal and other professional costs) suffered or incurred by Sonardyne and its Affiliates arising out of or in connection with any breach of any of the provisions of clause 25.1 or 25.2 by the Customer.
26 SURVIVAL OF OBLIGATIONS
Any term which is intended, expressly or impliedly, to continue, or to come into effect on termination or expiry of this Agreement shall continue in effect (or come into effect) on such termination or expiry and the following clauses are expressly agreed to survive and continue in full force and effect following expiry or termination:
26.1 clause 14 (Liability);
26.2 clause 16 (Intellectual Property Rights);
26.3 clause 18 (Use of Software);
26.4 clause 20 (Confidentiality);
26.5 clause 24 (Obligations on Termination);
26.6 clause 33 (Governing Law and Jurisdiction).
27 FORCE MAJEURE
27.1 Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under this Agreement so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
27.2 A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event:
27.2.1 notify the other party of the nature and extent of such Force Majeure Event; and
27.2.2 use all reasonable endeavours to remove any such causes and resume performance under this Agreement as soon as feasible.
28.1 If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
28.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
29 VARIATION AND WAIVER
29.1 Any variation of this Agreement must be in writing and signed by or on behalf of the parties. Any such variation may result in an amendment to the applicable Charges or Delivery Dates.
29.2 Any waiver of any right under this Agreement is only effective if it is in writing and signed by or on behalf of the party and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
29.3 No failure to exercise or delay in exercising any right or remedy provided under this Agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.
29.4 No single or partial exercise of any right or remedy under this Agreement shall prevent or restrict the further exercise of that or any other right or remedy.
30.1 A notice served under this Agreement shall (except as otherwise permitted under these Terms) be:
30.1.1 in writing in the English language;
30.1.2 signed by or on behalf of the party giving it; and
30.1.3 sent for the attention of the Company Secretary/or CEO to the party’s registered office address.
30.2 The address for service of notices on Sonardyne is Ocean House, Blackbushe Business Park, Yateley, Hampshire, GU46 6GD, U.K.
30.3 The address or other details for service of notices on the Customer shall be as set out at the start of this Agreement.
30.4 A notice under clause 30.1 shall be served by personal delivery at, or by sending it by courier or pre-paid first class post (or international equivalent) or recorded delivery to, the intended recipient’s address. The address of a party for service of notices may be changed by notice given in accordance with this clause. A notice is deemed to be received when served by personal delivery at the recipient’s address or, if sent by courier or pre-paid first class post (or international equivalent) or recorded delivery, three Business Days from the date of despatch or posting.
31 ENTIRE AGREEMENT
31.1 This Agreement (including the Schedules attached hereto) and the documents referred to in it constitute the whole agreement and understanding of the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of the Agreement.
31.2 Each of the parties to this Agreement acknowledges and agrees that:
31.2.1 in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to the Agreement or not) which is not expressly set out in the Agreement; and
31.2.2 the only remedy available to it for breach of any statement, representation, warranty or other term which is expressly set out in this Agreement shall be for breach of contract under the terms of the Agreement.
31.3 Nothing in this clause 31 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
32 RIGHTS OF THIRD PARTIES
No person who is not a party to this Agreement has any rights under it or may enforce any provision of it and no term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 or otherwise by a person who is not a party to the Agreement.
33 GOVERNING LAW AND JURISDICTION
33.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, formation or existence (including non-contractual disputes or claims) shall be governed by, construed and interpreted in accordance with English law excluding any conflict of law principles that would direct the substantive law of another jurisdiction to apply.
33.2 The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement, its subject matter, formation or existence (including non-contractual disputes or claims).
AS WITNESS the hands of the parties hereto or their duly authorised representatives the date first above written.
for and on behalf of SONARDYNE INTERNATIONAL LIMITED.
Printed Name ………………………………….
for and on behalf of [CUSTOMER’S FULL TITLE]
Printed Name ………………………………….
THE PRODUCTS, CHARGES AND PAYMENT PROVISIONS.
PRODUCTS AND CHARGES
[Note- include Equipment, Software, Documentation, tools and daily/monthly Charges for the hire of each item.]
A. PRODUCT DETAILS
|Item Description(s)||Item Serial Number(s)||Hire Charge(s)|
|Total Hire Charges|
B. REPLACEMENT COSTS
|Item Description||Replacement Cost|
[Note- include up-front payments/deposits and invoicing periods- normally monthly in advance.]
The Hire Term for the Products is for an expected period of [INSERT] from the Delivery Date (“Expected Period”).
A minimum Hire Term of [ INSERT ] from the Delivery Date shall apply (“Minimum Period”).
Following the Minimum Period the Customer shall be entitled to give [X months] notice to return the Products (in total and not in part) to Sonardyne, and thereby reduce the Hire Term, subject to the following financial provisions:
[INSERT FINANCIAL PROVISIONS].
[Note- If any Services are not already included in the Terms (e.g. Warranty is in the Terms- but installation and commissioning, training, supply of spare parts at Customer locations, maintenance terms, are not); then they should be stated in this Schedule- or be signed up under a separate Sonardyne contract terms, e.g. our repair, training or Field Services terms. Ensure that where such Services are covered in this Agreement, the necessary special provisions, charges (and invoicing periods) are specified here as well.]
[Example] Maintenance Services:
Sonardyne shall supply the following maintenance Services (“Maintenance Services”) for the duration of the Hire Term subject to the compliance by the Customer with the following obligations:
1. Customer shall liaise with Sonardyne and the parties shall agree a maintenance schedule for the return of the specified Products in stages on agreed dates for routine maintenance approximately once per year.
2. Customer shall be responsible for recovery, decommissioning, de-installation, packaging (using Sonardyne packaging as supplied on shipment from Sonardyne) and transport of the Products (using no lesser form of transport than as used on shipment from Sonardyne), at its own risk and expense to Sonardyne’s or Sonardyne’s Affiliates or specified third party’s notified maintenance facility at [default is Blackbushe Business Park, Yateley, Hampshire, UK.] on the dates agreed under section 1 above; and for the re-attachment, re-installation and re-commissioning of returned Products.
3. Sonardyne shall perform the following Maintenance Services:
3.1 external inspection of the Product and recording of external damage;
3.2 connection to test equipment if relevant;
3.3 opening up the Product for internal inspection;
3.4 replacement of worn and defective parts found;
3.5 replacement of consumable parts if necessary or agreed;
3.6 performance of a Sonardyne mandated Software upgrade to a new release or version;
3.7 closure of the Product;
3.8 testing of the Product if relevant;
3.9 re-packaging of the Products (using the packaging returned by the Customer);
3.10 return of the Product to the Customer at the agreed location as agent for the Customer and at the risk and expense of the Customer at cost plus 15%; and
3.11 Sonardyne may at its discretion choose to return a new Product to the Customer instead of a repaired or refurbished Product.
4. Charges for Maintenance Service shall be as follows:
4.1 Charges for the Hire of the Products cover the Maintenance Services specified in sections 3.1, 3.2, 3.3, 3.4, 3.6, 3.7, 3.8 and 3.9 above.
4.2 The Customer shall be responsible for additional Charges for Maintenance Services and for replacement parts and Products specified in section 3.5 (supply and replacement of consumables, including batteries), for replacement packaging where this has not been returned by the Customer in reasonable condition; and for return of the Products in accordance with section 3.10, as well as for any Maintenance Services or replacement of parts or Products found necessary by Sonardyne as a result of damage to Products or failure by the Customer to return Products for maintenance in good condition as a result of failure by the Customer to comply with the terms of this Agreement relating to the use of, care of, warranty and assumption of risk in the Products, including loss of and damage to the Products.
4.3 Sonardyne shall invoice for Charges due under section 4.2 above monthly and payment shall be made by the Customer within 30 days of the date of invoice.]
4.4 Charges for the Hire of the Products do not cover the Maintenance Services. The Customer shall pay for the Maintenance Services specified in section 3 above at the then applicable Sonardyne standard hourly rates for such Services, standard shipping charges policy and charges for parts, consumables, necessary packaging and replacement Products to replace Products not returned or returned beyond economic repair.
4.5 Sonardyne shall invoice for Charges due under section 4.4 monthly and payment shall be made by the Customer within 30 days of the date of invoice.]