This proposal is issued subject to contract. This proposal is issued in accordance with Sonomatic Inc.’s standard terms and conditions. (Short form follows.)
All prices are in US Dollars.
This proposal is open for acceptance for 60 days.
Limit of Liability Work Terms & Conditions
1. Acceptance of this offer constitutes an Agreement made in Delaware and subject to the laws of the State of Delaware and to the sole jurisdiction of the courts of Delaware between Sonomatic Inc whose registered office is at 3422 Old Capitol Trail, Suite 700, Wilmington 19808-6192, Delaware (“Sonomatic”) and the entity (“Customer”) which wishes to procure Sonomatic’s services (the “Work”).
2. The Customer shall pay in United States Dollars the charges made by Sonomatic in respect of the Work within thirty (30) days of the submission of any invoice by Sonomatic. Such payment to Sonomatic shall mean that payment exclusive of any taxes and duties chargeable thereon by any central government, local government or statutory body whatsoever, all of which taxes and duties shall be paid by the Customer. Sonomatic reserves the right to charge interest on late payments.
3. Unless specified to the contrary in the Work, all relevant information resulting from the Work shall be described in a written report which shall be sent to the Customer. Copyright in the report shall vest in Sonomatic and the Customer shall have the right to use such information for the purposes notified in writing to Sonomatic prior to Sonomatic’s offer to undertake the Work.
INFRINGEMENT OF THIRD-PARTY RIGHTS
4. Sonomatic makes no warranty or representation that the use of any information arising from the Work will not infringe the rights of third parties but, if any of Sonomatic’s employees whilst engaged on the Work becomes aware of any apparent infringement, Sonomatic will inform the Customer.
WARRANTY & LIMITATION OF LIABILITY
5. (a) Sonomatic warrants to the Customer that:
i) Sonomatic will undertake the Work exercising reasonable care and skill;
ii) Sonomatic has full right, power and authority to undertake the Work for the Customer in accordance with the terms of this Agreement.
(b) The following provisions in sub-clauses 5(b) to 5(m) set out Sonomatic’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) in respect of:
(i) any breach of Sonomatic’s contractual obligations under this Agreement; and
(ii) any representation or statement arising under or in connection with this Agreement; and
(iii) any tortious act or omission arising under or in connection with this Agreement.
(c) Any act or omission on the part of Sonomatic or its employees, agents or sub-contractors, falling within sub-clause 5(b) shall, for the purposes of this clauses be known as an “Event of Default”. Sonomatic shall not be deemed to have breached its obligations under this Agreement to the extent that any act or omission on its part is due to any delay or failure by the Customer or his representatives to give instructions, authority or information or where the act or omission on Sonomatic’s part is due to an act or omission on the part of the Customer.
(d) Sonomatic will accept unlimited liability for:
(i) death or personal injury caused by the negligence of Sonomatic;
(ii) any matter which it would be illegal for Sonomatic to exclude or to attempt to exclude its liability for; and
(iii) fraud committed by Sonomatic.
(e) Except in the case of any liability on the part of Sonomatic referred to in sub-clause 5(d) Sonomatic’s aggregate liability for all Events of Default shall not exceed two hundred thousand US Dollars ($200,000) or five times the total payment made to Sonomatic under this Agreement; whichever sum is the greater.
(f) Except as provided in sub-clauses 5(d) and 5(e), Sonomatic will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill, and like loss) howsoever caused arising out of or in connection with this Agreement even if such loss was reasonably foreseeable or Sonomatic had been advised of the possibility of the Customer incurring the same.
(g) If a number of Events of Default give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under the Agreement.
(h) The Customer hereby agrees to afford Sonomatic not less than sixty (60) days from the date on which the Customer gives notice of an Event of Default, or such longer period as may be reasonable in all the circumstances, in which to remedy any Event of Default before making any claim in respect of such Event of Default.
(i) Except in the case of Event of Default arising under sub-clause 5(d), Sonomatic shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served written notice of the same upon Sonomatic within two years of the date it became aware of the circumstances giving rise to the Event of Default, or the date when it ought reasonably to have become so aware.
(j) Nothing in this clause 5 shall confer any right or remedy upon the Customer to which it would not otherwise be entitled.
(k) Except as set out in sub-clause 5(d), Sonomatic hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in this Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favor of the Customer.
(l) Each of Sonomatic’s employees and agents may rely upon and enforce the exclusions and restrictions of liability in these sub-clauses 5(b) to 5(m) in that person’s own name and for that person’s own benefit, as if the words “its employees and agents” followed the word “Sonomatic” wherever it appears in those clauses.
(m) The parties each confirm that all the exclusions and limitations of liability set out in these clauses are fair and reasonable having regard to all relevant circumstances.
6. Sonomatic shall have the right to make general references to the Work in press releases or promotional materials but shall not include any detailed results of the Work without the written consent of the Customer.
7. (a) Each party shall take all reasonable measures to keep confidential for the period of seven (7) years next following the date of acceptance of this offer all information which is received from the other party under this Agreement and which is specified by the disclosing party to be confidential at the time of disclosure or which may come to one party’s knowledge or is disclosed to it as a result of visiting the premises of the other party.
(b) This obligation shall not apply to information which either at the time of disclosure or after disclosure is published or generally available to the public other than through a breach hereof or information already in the receiving party’s possession at the time of receipt and which was not acquired directly or indirectly from the disclosing party or information acquired by the receiving party in good faith from a third party or information which the receiving party is obliged to disclose in order to comply with applicable laws.
8. Save as may be expressly stated nothing in this Agreement confers or purports to confer on any third party any right or benefit to enforce any terms of this Agreement.
CUSTOMER’S PROPERTY, INFORMATION ETC
9. As soon as practicable after acceptance of this offer, the Customer shall arrange, free of charge and risk to Sonomatic, the delivery to Sonomatic of any samples, equipment, materials and/or information (“Customer’s Property”) required by Sonomatic in order to carry out the Work. On completion of the Work, the Customer’s Property shall be treated as detailed in the Work or, if no provision is made in the Work, the Customer’s Property shall be retained by Sonomatic for the period of two (2) months next following the completion of the Work, during which time the Customer may make arrangements for their collection. Should the Customer not make such arrangements, Sonomatic shall be entitled to dispose of the Customer’s Property at the Customer’s expense.
DELAYS, ACCESS, AND SAFETY
10. Sonomatic shall not be considered in default in the performance of its obligations under this Agreement to the extent that the performance of such obligations is prevented or delayed by any cause beyond its reasonable control. Such cause shall include but shall not be limited to, being denied access to the premises where the Work is being undertaken, the Customer’s failure to ensure such premises are safe in accordance with all relevant Health and Safety legislation, the Customer’s failure to provide information in the format detailed or other such Customer property required by Sonomatic in the timescales indicated in the Work. Sonomatic shall charge the Customer for any additional fees associated with any such delays.
11. Unless specifically agreed otherwise in writing by the Customer and Sonomatic, the terms contained in any purchase order or any other form of contract document issued by the Customer to Sonomatic shall not apply in any way whatsoever to the performance of the Work except for the purposes of specifying the Customer’s contract reference number(s) and the Customer’s relevant invoicing address(es).
12. If any provision of this Agreement is illegal, invalid or unenforceable in any jurisdiction, such illegality, invalidity or unenforceability shall not invalidate the remaining provisions hereof or affect the legality, validity or enforceability of such provision in any other jurisdiction. The parties hereto agree in such event to substitute legal, valid and enforceable provisions for the illegal, invalid or unenforceable provisions so as to implement the intentions of the parties hereto to the extent that this is legally possible.
13. Each party acknowledges and agrees with the other party that this Agreement together with any documents referred to in it constitutes the entire agreement of the parties and supersedes any previous agreement between them in relation to this Agreement.
ANTI-BRIBERY & ANTI-CORRUPTION
The Customer shall:
i) comply with all applicable laws and regulations relating to anti-bribery and anti-corruption.
ii) comply with Sonomatic’s ethical business code, a copy of which is available on request, as updated from time to time; and
iii) within 14 days of a written request from Sonomatic, certify in writing signed by an officer, that it has complied with this clause. The Customer shall provide such supporting evidence of compliance as Sonomatic may reasonably request.
If the Customer is in breach of this clause Sonomatic shall, without prejudice to any other right, be entitled to immediately terminate this Agreement.