1 AGREED TERMS
1. About us
1.1 Company details. Sonardyne International Limited (company number 01299452) (we,
us, our and Sonardyne) is a company registered in England and Wales and our
registered office is at Ocean House, Blackbushe Business Park, Yateley, Hampshire,
GU46 6GD. Our VAT number is GB 591 6950 04. We operate the website
eshop.sonardyne.com.
2. Our contract with you
2.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply
of Products, Equipment and/or Services by us to you (Contract). No other terms are
implied by trade, custom, practice or course of dealing.
2.2 Entire agreement. The Contract is the entire agreement between us in relation to its
subject matter. You acknowledge that you have not relied on any statement, promise or
representation or assurance or warranty that is not set out in the Contract.
2.3 Language. These Terms and the Contract are made only in the English language.
3. Placing an order and its acceptance
3.1 Placing your order. Please follow the onscreen prompts to place an order. Each order is
an offer by you to buy Products and/or Services listed or otherwise identified in, or supplied
by Sonardyne as a deliverable within an order subject to these Terms. “Equipment”
means tangible deliverables supplied by Sonardyne under a Contract, excluding Software
and documentation; “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 a Contract; “Third Party Software” means any
Software the Intellectual Property Rights to which are owned by a third party other than
an Affiliate of Sonardyne; “Products” means the Equipment and/or Software and/or
documentation listed or otherwise identified in, or supplied by Sonardyne as a deliverable.
An “Affiliate” means, with respect to Sonardyne, any and all holding companies of that
company and all direct or indirect subsidiaries of such holding companies and “holding
company” and “subsidiary” shall have the meanings ascribed to them in section 1159 of
the Companies Act 2006; and “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.
3.2 Correcting input errors. Our order process allows you to check and amend any errors
before submitting your order to us. Please check the order carefully before confirming it.
You are responsible for ensuring that your order is complete and accurate.
3.3 Acknowledging receipt of your order. After you place an order, you will receive an email
from us acknowledging that we have received it, but please note that this does not mean
that your order has been accepted. Our acceptance of your order will take place as
described in clause
3.4 You agree that your order is an offer to buy, under these Terms,
all Products and/or Services listed in your order. All orders must be accepted by us, or we
will not be obliged to sell the Products and/or Services to you. We may choose not to
accept orders at our sole discretion, even after we send you a confirmation email with your
order number and details of the items you have ordered.
3.5 Accepting your order. We will confirm our acceptance to you by sending you an email
that confirms that the Products have been dispatched (Dispatch Confirmation). The
Contract between you and us will be formed when we send you the Dispatch Confirmation.
3.6 If we cannot accept your order. If we are unable to supply you with the Products and/or
Services for any reason, we will inform you of this by email and we will not process your
order. If you have already paid for the Products and/or Services, we will refund you the full
amount including any delivery costs charged as soon as possible.
4. Our Products
4.1 The images of the Products on our site are for illustrative purposes only. Although we have
made every effort to display the colours accurately, we cannot guarantee that your
computer’s display of the colours accurately reflect the colour of the Products. The colour
of your Products may vary slightly from those images.
4.2 The packaging of your Products may vary from that shown on images on our site.
4.3 We reserve the right to amend the specification of the Products if required by any
applicable statutory or regulatory requirement.
5. Delivery, transfer of risk and title
5.1 We will contact you with an estimated delivery date and we will email you Dispatch
Confirmation. We will arrange for shipment of the Products to you. Please check the
individual product page for specific delivery options. You will pay all shipping and handling
charges specified during the ordering process. Shipping and handling charges are
reimbursement for the costs we incur in the processing, handling, packing, shipping, and
delivery of your order. Shipping and delivery dates are estimates only and cannot be
guaranteed. We are not liable for any delays in shipments. We may deliver or ship the
Products in advance of any quoted or estimated delivery or shipping date. Occasionally
our delivery to you may be affected by an Event Outside Our Control. See clause 22
(Events outside our control) for our responsibilities when this happens.
5.2 Unless otherwise agreed between ourselves in writing, CIP Delivery Location (as defined
in clause 5.3) Incoterms® 2020 shall apply to each order.
5.3 Delivery is complete once the Products have been unloaded at the address for delivery
set out in your order (“Delivery Location”) and the Products will be at your risk from that
time.
5.4 You own the Products once we have received payment in full, including of all applicable
delivery charges.
5.5 You shall provide us with such documentation and information as we 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.
5.6 If you order Products from our site for delivery, your order may be subject to duties and
taxes. Please note that we have no control over these charges and we cannot predict their
amount.
5.7 You will be responsible for payment of any such import duties and taxes. Please contact
your local customs office for further information before placing your order.
5.8 You must comply with all applicable laws and regulations of the country for which the
Products are destined. We will not be liable or responsible if you break any such law.
6. Price of Products and delivery charges and Services
6.1 The prices of the Products and/or Services will be as quoted on our site at the time you
submit your order. We take all reasonable care to ensure that the prices of Products and/or
Services are correct at the time when the relevant information was entered onto the
system.
6.2 Prices for our Products and/or Services may change from time to time.
6.3 The Prices are exclusive of amounts in respect of applicable taxes and levies and any
charges or imports of any kind including VAT, sales taxes, excise duties and import or
export duties or fees. You shall, upon request, pay such additional amounts in respect of
any such amounts as are chargeable on a supply of Products and/or Services.
6.4 The price of the Products and/or Services do not include delivery charges. Our delivery
charges will be advised to you subsequently. You shall, upon request, pay such additional
amounts in respect of any such amounts as are chargeable on a supply of Products and/or
Services.
7. How to pay
7.1 You can only pay for Products and/or Services using a debit card or credit card.
7.2 Payment for the Products is in advance. We will not charge your debit card or credit card
until we dispatch your Products.
8. Supply of the Products and Services
8.1 Sonardyne shall supply and you shall purchase the Equipment and/or Services and/or
licence the Software stated in the Contract in accordance with these Terms.
8.2 Unless specifically stated in the Contract, Sonardyne will not supply and is not responsible
for any installation, commissioning, decommissioning or training services in relation to the
Products supplied.
8.3 For the purposes of this Contract, “Services” shall mean any services rendered by
Sonardyne pursuant or in connection with this Contract.
9. Terms relating to Services
9.1 The scope of any Services will be as set out in the Contract.
9.2 Where any Services are purchased:
(a) you 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 the Contract;
(b) you are 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 (where, for the purposes of this Contract) “Customer
Materials” meaning all and any information, specifications, plans, concepts,
drawings, designs and other materials supplied by you or on your behalf, in any
format
(c) on completion of the Services, you will either be required to participate in any
acceptance testing specified in the Contract and to sign a Sonardyne acceptance
certificate or will be provided with an engineer’s visit report;
(d) 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; and
(e) any support services provided by Sonardyne with regard to Products provided
under a Contract shall be subject to the support terms provided or otherwise
stated on Sonardyne’s website for such support.
10. Your obligations
10.1 You shall be responsible for your own Product selection and for ensuring the suitability of
the Products for the required purpose.
10.2 You are responsible for obtaining all necessary consents, licences and permits relating to
its use of the Products and/or Services.
10.3 You shall accept delivery and shipment of the Products in accordance with the relevant
Terms of this Contract.
10.4 You 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:
(a) Sonardyne following any designs, specifications, instructions or other reliance on
Customer Material;
(b) any claim that the Customer Materials, or any part of them infringe any rights of any
third parties, including any Intellectual Property Rights;
(c) your 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.
11. Our warranty for the Products: your attention is particularly drawn to this clause
11.1 The following Warranties (each a “Warranty”) are given by us with regard to the quality
and performance of Products supplied by us to you:
(a) Equipment shall be free in all material respects from defects in materials and
workmanship discovered during the Warranty Period;
(b) Sonardyne Software shall comply in all material respects with the applicable
Specification during the Warranty Period;
(c) Sonardyne shall pass on the benefit of any remaining warranty regarding the
performance and correction of Third Party Software enforceable by it and which
it can pass to you;
(d) Products shall comply with all applicable UK statutory and regulatory
requirements except as excluded by clause 11.4 below.
For the purposes of this Contract,
(i) “Warranties” shall have the meanings stated within this clause 11 and
“Warranty” and “Warrants” shall be interpreted accordingly; and
(ii) “Warranty Period” means the period stated as such in the Contract or if
none is stated, then for new Equipment the period of 12 months from the
date of Delivery; for Equipment that has been repaired by Sonardyne
under clause 12.4, 6 months from the date of Delivery of the repair; for
Sonardyne Software the period of 3 months from Delivery; and for
Services the period of 3 months from completion.
11.2 Sonardyne Warrants that the Services supplied to you by Sonardyne under the Contract
will be performed by appropriately qualified and trained personnel, with reasonable skill
and care and materially in accordance with the applicable Specification.
11.3 Claims with regard to the above Warranties shall be made in accordance with and are
subject to the terms of clause 12.
11.4 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 CONTRACT ARE EXCLUDED EXCEPT TO THE
EXTENT SUCH EXCLUSION IS PROHIBITED OR LIMITED BY LAW AND ARE
SUBJECT TO THE LIMITATIONS SET FORTH IN CLAUSES 12 AND 13.
12. Warranty claims: your attention is drawn in particular to this clause
12.1 The provisions of this clause 12 shall apply if you make any claim that Sonardyne is in
breach of Warranty.
12.2 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
warranty@sonardyne.com.
12.3 In the event of any claim under the Warranty:
(a) you must promptly notify Sonardyne in accordance with clause 12.2, of the claim
and in any event within 14 days of the alleged fault first arising;
(b) unless otherwise agreed by Sonardyne in writing, you must immediately cease
use of the alleged defective Product, and confirm to Sonardyne that this has been
adhered to;
(c) you must return the affected Product to the agreed Sonardyne location at its own
cost;
(d) Sonardyne will investigate the claim and you shall provide all information and
assistance that may be required by Sonardyne;
(e) 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;
(f) you shall in any event be responsible for the return of the repaired or replaced
Product to yourself 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;
(g) risk of loss of or damage to Products shall be with you at all times other than when
they are in the custody of Sonardyne.
12.4 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 11.1(c)) in accordance with this clause 12.
12.5 Sonardyne shall not be liable for Products’ failure to comply with the Warranty if any of the
following events or circumstances applies:
(a) you make any further use of such Products after giving notice in accordance with
clause 12.3(a) unless otherwise agreed by Sonardyne in accordance with clause
12.3(b);
(b) the defect arises because you have 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;
(c) the defect arises as a result of Sonardyne following information contained in any
Customer Materials or any other instructions or requirements issued by you;
(d) you or a third party alters or repairs such Products without the written consent of
Sonardyne;
(e) the defect arises as a result of fair wear and tear, any externally caused damage,
whether by you or otherwise (whether wilful, malicious, accidental or otherwise)
negligence of yourself or any third party, or abnormal or otherwise inappropriate
storage or working conditions; or
(f) you have 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.
13. Our liability: your attention is drawn in particular to this clause
13.1 Sonardyne shall only be liable to you in respect of claims notified to Sonardyne in
accordance with the Contract and in particular clauses 5 and 12 of these terms.
13.2 Sonardyne and Sonardyne Personnel shall have no liability:
(a) for any advice given by Sonardyne Personnel free of charge which is not
contracted to be provided under the Contract, or;
(b) for any defects or problems in the Products or Services in so far as caused by
Sonardyne following your specification, design or other instructions; or
(c) for any defects or problems in so far as caused by you 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.
13.3 Any liability Sonardyne may have for claims concerning damage to the physical property
(excluding the Products) of you or your Personnel arising out of or in connection with the
Contract, the Products and Services, however arising, shall be limited to £5,000,000 (five
million pounds sterling) in total, in respect of all claims.
13.4 For loss arising from Sonardyne’s failure to comply with its data processing obligations
under clause 24 (Data protection) shall be limited in respect of all claims in aggregate to a
sum equal to 100% of the Price payable (exclusive of VAT) by you for the relevant
Products and/or Services under the Contract giving rise to the claim, or £1 million,
whichever is the lesser.
13.5 Without prejudice to the other limitations on Sonardyne’s liability in the Contract but subject
to clauses 13.3 (physical damage), 13.4 (Data Protection) and 13.7, the liability of
Sonardyne for any claims arising out of or in connection with the Contract, 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 Price payable (exclusive of VAT) by you for the relevant
Products and/or Services under the Contract giving rise to the claim, or £1 million,
whichever is the lesser.
13.6 Without prejudice to clause 13.8, Sonardyne shall not, under any circumstances whatever,
be liable, however arising for any:
(a) direct or indirect loss of or damage to:
(i) profit or revenues; or
(ii) goodwill or damage to reputation; or
(iii) business; or
(iv) production; or
(v) business opportunity; or
(vi) bargain; or
(vii) anticipated saving; or
(viii) data, or for corruption of data or information; or
(ix) the cost of detachment, decommissioning and retrieval of any defective
Products and the reattachment or commissioning of any repaired or
replaced Products or items; or
(x) any costs and liabilities arising from pollution or environmental damage
caused directly or indirectly by the Products; or
(b) indirect or consequential loss or damage.
13.7 The term “however arising” when used or referred to in this clause 13 shall cover all causes
and actions giving rise to liability of Sonardyne arising out of or in connection with the
Contract or the Products or Services:
(a) whether arising by reason of any misrepresentation (whether made after, prior to
and/or in the Contract) negligence, breach of statutory duty, other tort,
repudiation, renunciation or other breach of contract, restitution or otherwise;
(b) whether arising under any indemnity or hold harmless provision;
(c) 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
(d) whether deliberate (but not with malicious intent) or otherwise, however
fundamental the result.
13.8 The exclusions and limitations of liability contained in these Terms and in the Contract
shall apply regardless of whether the loss or damage was foreseeable or whether you
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 in the Contract shall
affect liability:
(a) for death or personal injury caused by negligence to the extent prohibited by the
Unfair Contract Terms Act 1977;
(b) for fraudulent misrepresentation or other fraud; or
(c) 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.
13.9 You 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:
(a) to the extent caused by following your specification, design or other instructions;
and
(b) in relation to any claims by third parties arising in connection with a Contract, or
as a result of Sonardyne providing the Products or Services, which are in excess
of the liability of Sonardyne as described in these Terms and the relevant
Contract, in particular in this clause 13.
13.10 You acknowledge:
(a) the potential losses, damages or claims which you may suffer as a result of any
breach of the Contract or other default by Sonardyne are more readily
ascertainable by you than by Sonardyne;
(b) such losses, damages and claims may greatly exceed the sums paid under the
Contract and Sonardyne has agreed to the Price only on the basis that it limits its
liability in the manner stated in these terms;
(c) that the Price of the Products provided for under the Contract reflects the
exclusions and limitations on Sonardyne’s liability, and that you had the
opportunity to negotiate variations to the exclusions and limitations upon the
agreement of a higher price;
(d) you must consider insuring any liability not accepted by Sonardyne under this
Contract and you agree that it is your responsibility for taking legal advice on the
limits on Sonardyne’s liability
(e) the parties agree that such limits are fair and reasonable in all of the
circumstances; and
(f) nothing in these Terms or any Contract shall restrict or limit your general
obligation at law to mitigate a loss which you may suffer or incur as a result of a
matter that may give rise to a claim under an indemnity, hold harmless provision,
or otherwise.
13.11 You shall ensure that you have in place adequate insurance in view of the indemnities you
have provided to us under this clause 13.
14. Intellectual Property Rights
14.1 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 purchase of the Products by the
Customer does not transfer any rights whatsoever to the design of or Intellectual Property
Rights in the Products, nor do you 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 14 or, with regard to Software, in clause 16.
14.2 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.
15. Intellectual Property Rights Indemnity
15.1 Subject to the provisions of clause 15.1, Sonardyne undertakes at its own expense to
defend you or, at Sonardyne’s option, settle, any claim or action brought against the
Customer 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 you as a result of or
in connection with such claim.
15.2 The provisions of clause 15.1 above shall not apply to an infringement claim which is
attributable to:
(a) possession, use, development, modification or maintenance of the Equipment or the
Sonardyne Software (or any part thereof) by you other than in accordance with these
Terms;
(b) 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);
(c) use of Equipment or the Sonardyne Software in combination with any product not
provided by Sonardyne;
(d) reliance on any specification, information or coding provided by or on behalf of you;
or
(e) use of the Equipment or Sonardyne Software other than for its normal use as
envisaged by the applicable Specification.
15.3 The provisions of clause 15.1 shall not apply to an infringement claim unless you:
(a) promptly informs Sonardyne of any actual, potential, threatened or alleged
infringement or claim;
(b) 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
(c) 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.
15.4 If any infringement claim is made, or in Sonardyne’s reasonable opinion is likely to be
made, against you, Sonardyne may at its sole option and expense:
(a) procure for you the right to continue using the affected Equipment or Sonardyne
Software (or any part thereof) in accordance with these Terms; or
(b) modify the Equipment or Sonardyne Software so that it ceases to be infringing; or
(c) replace the Equipment or Sonardyne Software with non-infringing Equipment or
Sonardyne Software; or
(d) accept a return of the Equipment or Sonardyne Software and upon such return,
refund the Price paid by you for the returned items less a prorated amount that
assumes a useful life of the affected Equipment and Sonardyne Software of five
years.
16. Use of Software
16.1 In consideration of the payment of the Price by you to Sonardyne, Sonardyne grants to
you a personal, non-exclusive licence to use the Sonardyne Software in object code form
(only) in accordance with these Terms and any specific terms of the Contract including
limitations on the use of the Sonardyne Software.
16.2 You agree not to:
(a) 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 you or
where it is necessary for usual back-up or operational security;
(b) make the Sonardyne Software or any copies of it available in any way to any third
party, and in particular you agree not to share with or sub-licence, transfer, hire, rent,
lease, or loan the Sonardyne Software to any third party, except where embedded
in Equipment or otherwise permitted in writing by Sonardyne and in each case in
accordance with the terms of this clause 16 including especially clause 16.3(b)
below;
(c) 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;
(d) disassemble, decompile, reverse engineer or create derivative works based on the
whole or any 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 interoperability
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:
(i) is used only for the purpose of achieving such inter-operability;
(ii) is not disclosed or communicated to any third party without Sonardyne’s
prior written agreement;
(iii) without affecting the general nature of this provision, is not used to create
any software which is substantially similar to the Sonardyne Software.
16.3 You further agree to:
(a) keep all means of access and/or passwords required to access or use the
Sonardyne Software and all copies of the Sonardyne Software secure;
(b) ensure compliance with these Terms by your Personnel who have access to the
same and to pass on the obligation to comply with the terms of this clause 16 by all
parties to whom the Sonardyne Software is legitimately shared, sub-licenced,
transferred, hired, rented, leased, or loaned under clause 16.2(b); and
(c) include such branding, trademarks and copyright notices of Sonardyne on the
Sonardyne Software as Sonardyne shall require.
16.4 You shall permit Sonardyne to inspect and have access to any premises or vessel 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 you are complying with the terms of these Terms, provided that Sonardyne provides
reasonable advance notice to you of such inspections, which shall take place at
reasonable times.
16.5 You acknowledge that you have no right to have any access to the Sonardyne Software
in source code form, or in unlocked coding of any kind. You agree that you 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.
16.6 With respect to any Third Party Software, you accept 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. You acknowledges
that (without prejudice to clause 11.1(c)) 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 your responsibility to enforce any rights and remedies
you have 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:
Windows 10 https://www.microsoft.com/enus/
Useterms/OEM/Windows/10/Useterms_OEM_Windows_10_English.htm
16.7 Where no separate third party licence agreement with regard to any specific Third Party
Software is provided to you in accordance with clause 16.6, or such license terms are not
contained within the Contract, then with regard only to such specific Third Party Software,
the license provisions of clauses 16.1 to 16.5 shall apply as if in clauses 16.1 to 16.5 the
definition “Sonardyne Software” reads “Sonardyne Software and Third Party Software”.
17. Confidentiality
17.1 Each party undertakes that it shall not at any time during the Contract and after termination
disclose to any person the Confidential Information of the other party, except as permitted
by clause 17.2, and shall only use the other party’s Confidential Information as required
to fulfil a Contract or to exercise its rights under it.
17.2 Each party may disclose the other party’s Confidential Information:
(a) to its Representatives (and in the case of Sonardyne to its Affiliates and their
Representatives) who need to know such information for the purposes of carrying
out that party’s obligations under the Contract, provided that the disclosing party
takes all reasonable steps to ensure that it’s Representatives (and in the case of
Sonardyne its Affiliate and their Representatives) comply with the confidentiality
obligations contained in this clause 17 as though they were a party to the Contract.
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
(b) with the disclosing party’s prior written agreement; or
(c) as may be required by law, court order or any governmental or regulatory authority.
17.3 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 the
Contract are granted to the other party or to be implied from the Contract. 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.
18. Sanctions
18.1 You warrant and represent that you are not a Restricted Party.
18.2 You will not use the Products and/or Services:
(a) in connection with chemical, biological or nuclear weapons or other nuclear
explosive devices, or missiles capable of delivering such weapons, or any other
military end use, and you shall not apply or make them available to any other person
for such purpose; or
(b) in any manner that would constitute a violation of or would cause Sonardyne to be
in violation of or otherwise subject to penalties under, any Sanctions Laws.
18.3 You will not sell, distribute, or transfer the Products and/or Services to a Restricted Party.
18.4 If you become a Restricted Party or Sonardyne reasonably believes that you have
breached this clause 18, then without prejudice to any other rights or remedies that
Sonardyne may have under the Contract or otherwise, Sonardyne shall be entitled to:
(a) suspend performance or any of its obligations under the Contract and/or any order
without any liability to Sonardyne; and/or
(b) terminate the Contract and/or any order with immediate effect; and/or
(c) require you to return the Products and/or Services (insofar as is reasonably
practicable).
18.5 Sonardyne shall not be in breach of this Contract nor liable for delay in performing, or
failure to perform, any of its obligations under this Contract if such delay or failure results
from or is in connection with Sanctions Laws.
18.6 For the purposes of this Contract,
(a) “Restricted Party” means a person or entity that is listed on, or owned or controlled
by a person or entity on any Sanctions List or that is otherwise a target or subject of
Sanctions Laws;
(b) “Sanctions Laws” means all economic sanctions laws, embargoes, regulations,
codes, rules, decisions, directives or orders of the United States, the United
Kingdom, the European Union or any European Union member state, or other
country, as applicable, and the respective governmental institutions and agencies of
the foregoing, including without limitation, the Office of Foreign Assets Control of the
US Department of Treasury, the United States Department of State, HM Treasury of
the UK and the UK Department for International Trade, the European Commission,
the UN Security Council and any other body that administers Sanctions Laws
(together “Sanctions Authorities”); and
(c) “Sanctions List” means the Specially Designated Nationals and Blocked Persons
List and the Sectoral Sanctions Identification List maintained by the Office of Foreign
Assets Control, the consolidated list of persons, groups and entities subject to EU
financial sanctions, the Consolidated List of Financial Sanctions Targets maintained
by HM Treasury or any similar list maintained or public announcement of sanctions
made, by any other Sanctions Authorities.
19. Overseas obligations
19.1 You 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.
19.2 Sonardyne shall be under no obligation to give notice under Section 32(3) of the Sale of
Goods Act 1979.
19.3 You acknowledge 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 the Contract 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.
19.4 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
Contract, Sonardyne shall not be liable to the Customer in respect of any loss, damage or
other resultant financial penalty.
20. Termination
20.1 Without limiting any of our other rights, we may suspend the supply or delivery of the
Products and/or Services to you, or terminate the Contract with immediate effect by giving
written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach
is remediable) fail to remedy that breach within 30 days of you being notified in
writing to do so;
(b) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a
substantial part of your business;
(c) your financial position deteriorates to such an extent that in our reasonable
opinion your capability to adequately fulfil your obligations under the Contract has
been placed in jeopardy; or
(d) you cease trading, commence or are required to commence or participate in any
activity associated with debt rescheduling, administration, bankruptcy, liquidation
or winding up or you are subject to an attachment order on any part of your assets
and such attachment order is not discharged within 14 days.
20.2 Termination of the Contract shall not affect your or our rights and remedies that have
accrued as at termination.
20.3 Any provision of the Contract that expressly or by implication is intended to come into or
continue in force on or after termination shall remain in full force and effect.
21. Obligations on termination
21.1 On termination of the Contract the whole Price of all Products and Services bought or
agreed to be bought by you shall be immediately payable without demand.
21.2 Additionally, on termination of the Contract you shall promptly:
(a) return to us all equipment, materials and property belonging to us that we had
supplied to you in connection with the supply and purchase of the Products under
the Contract;
(b) return to us all documents and materials (and any copies) containing our Confidential
Information;
(c) erase all the other party’s Confidential Information from our computer systems (to
the extent possible); and
(d) on request, certify in writing to us that you have complied with the requirements of
this clause.
22. Events outside our control
22.1 We will not be liable or responsible for any failure to perform, or delay in performance of,
any of our obligations under the Contract that is caused by any act or event beyond our
reasonable control (Event Outside Our Control).
22.2 If an Event Outside Our Control takes place that affects the performance of our obligations
under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for
performance of our obligations will be extended for the duration of the Event
Outside Our Control. Where the Event Outside Our Control affects our delivery of
Goods to you, we will arrange a new delivery date with you after the Event
Outside Our Control is over.
22.3 If an Event Outside Our Control prevents us from performing our obligations under the
Contract for any continuous period of three months, you shall be entitled to terminate the
Contract with immediate effect by giving us written notice.
23. Hardship
23.1 If, at any time, an event or circumstance occurs or develops which (in the reasonable
opinion of Sonardyne) has or is likely to have an Adverse Impact on Sonardyne or there
is a Significant Currency Fluctuation, then Sonardyne may:
(a) require you to negotiate an amendment to this Contract and/or any order to
alleviate the Adverse Impact or Significant Currency Fluctuation; and
(b) if renegotiation fails, terminate this Contract or any order by giving the Customer
not less than 10 Business Days written notice. For the purposes of the clause 23,
renegotiation is deemed to have failed if the parties have not agreed an
amendment to this Contract within 30 days of Sonardyne notifying the Customer
of the applicable Adverse Impact or Significant Currency Fluctuation (as
applicable) and the proposed amendment that it wishes to make to the Contract.
23.2 For the purposes of this Contract,
(a) “Adverse Impact” means: (i) an adverse impact on Sonardyne’s ability to perform
the Contract and/or any order in accordance with its terms and/or applicable law; or
(ii) an increase in the costs incurred by Sonardyne in performing the Contract and/or
any order of at least 3% since the price for the applicable Products and/or Services
was agreed or set;
(b) “Significant Currency Fluctuation” means, in the event that the price for the Products
and/or Services is payable by the Customer in a Local Currency, a fluctuation in the
value of such Local Currency against the GBP (British Pound Sterling) of more than
5% since the date on which the price for the applicable Products and/or Services
was agreed or determined in accordance with this Contract. In determining a
fluctuation in the value of the Local Currency the daily spot rate of exchange for the
conversion of such Local Currency to GBP (British Pound Sterling), as published in
the Financial Times, shall apply;
(c) “Local Currency” means any currency other than GBP (UK Sterling); and
(d) “Business Day” means a day (other than a Saturday, Sunday or public holiday) when
banks in London are open for business.
24. Data protection
24.1 For the purposes of this clause 24, the terms controller, processor, data subject,
personal data, personal data breach and processing shall have the meaning given to
them in the UK GDPR. “UK GDPR” has the meaning given to it in section 3(10) (as
supplemented by section 205(4)) of the Data Protection Act 2018.
24.2 Both parties will comply with all applicable requirements of the Applicable Data Protection
Laws. This clause 24 is in addition to, and does not relieve, remove or replace, a party’s
obligations or rights under Applicable Data Protection Laws. Applicable Data Protection
Laws means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of
the United Kingdom which relates to the protection of personal data; and
(b) to the extent the EU GDPR applies, the law of the law of the European Union or
any member state of the European Union to which the Sonardyne is subject,
which relates to the protection of personal data. “EU GDPR” means the General
Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
24.3 Any personal data that the Customer provides will be processed in accordance with
Sonardyne’s privacy policy available at https://www.sonardyne.com/privacy-and-cookiepolicy/
(Privacy Policy). In the event of any inconsistency or conflict between the terms
of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
24.4 Without prejudice to clause 24.2, Sonardyne shall, in relation to Customer Personal data:
(a) process that Customer Personal Data in accordance with Applicable Laws,
“Applicable Laws” means all applicable laws, statutes, regulations and codes
from time to time in force;
(b) implement the technical and organisational measures to protect against
unauthorised or unlawful processing of Customer Personal Data and against
accidental loss or destruction of, or damage to, Customer Personal Data;
(c) ensure that any personnel engaged and authorised by Sonardyne to process
Customer Personal Data have committed themselves to confidentiality or are
under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Customer insofar as this is possible (taking into account the nature of
the processing and the information available to Sonardyne), and at the
Customer’s cost and written request, in responding to any request from a data
subject and in ensuring the Customer’s compliance with its obligations under
Applicable Data Protection Laws with respect to security, breach notifications,
impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data
breach involving the Customer Personal Data; and
(f) maintain records to demonstrate its compliance with this clause 24.
24.5 Sonardyne’s liability for losses arising from breaches of this clause 24 is as set out in
clause 13.4.
25. Survival of obligations
25.1 Any term which is intended, expressly or impliedly, to continue, or to come into effect on
termination or expiry of the Contract 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:
(a) clause 13 (Liability);
(b) clause 14 (Intellectual Property Rights);
(c) clause 16 (Use of Software);
(d) clause 17 (Confidentiality);
(e) clause 18 (Sanctions);
(f) clause 21 (Obligations on Termination);
(g) clause 24 (Data Protection);
(h) clause 27.6 (Governing Law and Jurisdiction).
26. Communications between us
26.1 When we refer to “in writing” in these Terms, this includes email.
26.2 Any notice or other communication given under or in connection with the Contract must
be in writing and be delivered by hand, sent by pre-paid first class post or other next
working day delivery service, or email.
26.3 A notice or other communication is deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first class post or other next working day delivery service, at
9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
26.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that
such letter was properly addressed, stamped and placed in the post and, in the case of
an email, that such email was sent to the specified email address of the addressee.
26.5 The provisions of this clause shall not apply to the service of any proceedings or other
documents in any legal action.
27. General
27.1 Assignment and transfer.
(a) We may assign or transfer our rights and obligations under the Contract to
another entity.
(b) You may only assign or transfer your rights or your obligations under the Contract
to another person if we agree in writing.
27.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you
and us (or our respective authorised representatives).
27.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or
if we do not exercise our rights or remedies against you, or if we delay in doing so, that
will not mean that we have waived our rights or remedies against you or that you do not
have to comply with those obligations. If we do waive any rights or remedies, we will only
do so in writing, and that will not mean that we will automatically waive any right or remedy
related to any later default by you.
27.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant
authority decides that any of them is unlawful or unenforceable, the remaining paragraphs
will remain in full force and effect.
27.5 Third party rights. The Contract is between you and us. No other person has any rights
to enforce any of its terms.
27.6 Governing law and jurisdiction. This Contract is governed by English law and each party
irrevocably agrees to submit all disputes arising out of or in connection with this Contract
to the exclusive jurisdiction of the English courts.