Terms & Conditions

1. DEFINITIONS:

a. “Seller is defined as Sonatest, Inc., its parent, subsidiaries, and each of its affiliates and their respective transferees, successors and assigns, along with their respective directors, officers, agents, and employees.

b. “Purchaser” is defined as the purchaser of the Products or Services offered by Seller, along with their respective directors, officers, agents, and employees, but expressly excludes any subsequent purchaser or possessor.

c. “Seller’s Office” is defined as Seller’s address located at 12775 Cogburn, San Antonio, Bexar County, Texas 78249. If the location of the office changes, upon reasonable notice to Purchaser, “Seller’s Office” will be deemed amended to reflect the address of the new location.

d. “Agreement” is defined as the standard Terms and Conditions contained herein.

e. “Products” are defined as any item(s) sold by Seller.

f. “Services” are defined as any system design, drawings, technical advice, maintenance, repair, or instructions provided by Seller in connection with the sale, maintenance, repair, or installation of Products.

g. “Work” is defined as the Products and/or Services provided by Seller to Purchaser.

2. ACCEPTANCE:

Seller’s acceptance of any offer or order made by Purchaser is materially conditioned upon Purchaser’s acceptance to be bound by this Agreement. If Purchaser objects to this Agreement, such objection must be made in writing and received by Seller’s Office within ten (10) days after this Agreement is transmitted to Purchaser. Failure to so object shall be deemed to be Purchaser’s acceptance of this Agreement. Seller’s failure to object to any terms or conditions in any oral or written communication from Purchaser, at whatever time delivered to Seller, shall not constitute acceptance by Seller thereof or be considered a waiver of this Agreement. Any terms and conditions inconsistent with, or additional to, those in this Agreement are expressly rejected, however any change, modification, extension, renewal, ratification, waiver or rescission of this Agreement, or any of the provisions hereof, shall be binding on Seller and Purchaser if it is clearly described in writing and signed by both Seller and Purchaser. All previous negotiations, conversations, and understandings between Seller and Purchaser are merged herein.

3. PRICE:

Unless otherwise stated all contract prices are firm and fixed. In the event of an increase or reduction in price on materials, parts, labor, or freight rates of the Work, the new price will become effective immediately and shall be applied to the unshipped portion of the Products in Purchaser’s order. Any reduction in price on parts, material, labor, or freight rates of the Works shall not have a retroactive effect upon shipments of any of the Products completed prior to the date of the price reduction.

4. PAYMENT:

Payment shall be made in net U.S. Dollars, within thirty (30) days from the date of the earliest of shipment(s) of the Products, unless otherwise agreed in writing by Seller and Purchaser. For international transactions, all payments shall be made as agreed to by Seller and Purchaser. All sums payable by Purchaser to Seller are payable to the Seller’s Office. Shipment(s) of the Products are subject to Purchaser establishing and maintaining satisfactory credit with Seller, which is determined by Seller. Seller may require full or partial payment for shipment(s) of the Products in advance. Pro rata payment may, at the election of Seller, become due as any shipment(s) of the Products are made. If completion of any shipment of the Products is delayed by Purchaser, or Purchaser’s efforts could have kept such shipment from being delayed, the Seller may require payment of the contract price based upon the percentage of completion of the shipment(s) of the Products. Seller may defer or cancel shipment(s) of the Products and/or delay or cancel Services if Purchaser fails to make any payment to Seller. In addition to the requirements of this paragraph, if this Agreement is regarding an international transaction, payment shall be made via wire transfer, unless Seller agrees otherwise in writing. In the event of any past due payments, Seller, at its discretion may: (i) suspend any and all future shipment(s); (ii) terminate the contract; and/or (iii) charge Purchaser interest on any and all outstanding balances at the highest rate allowed by applicable law.

5. DELIVERY:

Seller shall not be liable for any loss or damage resulting from delay on shipment(s) of the Products or for services caused by fire, flood, strikes, labor disputes, riots, thefts, accidents, delays in transportation, acts of God, or any other cause reasonably beyond the control of the Seller. Seller shall not be liable in any event, for loss of anticipated profits, loss by reason of plant shut down, non-operation or increased expense of operation of other equipment or other direct, indirect or consequential damages of any nature caused by delay in delivery. Delivery dates quoted are approximate and delivery will be made by a carrier of Seller’s selection unless otherwise agreed to in writing by Seller. Purchaser shall be solely responsible for all costs associated with delivery of the Product(s).

6. INSPECTION/ACCEPTANCE:

All Seller’s Products are tested and inspected prior to shipment(s). If tests are required to be witnessed by Purchaser’s representative, notice of this requirement must be given at the time of placing the order and notice of readiness, will then be given to Purchaser seven (7) days in advance of such tests being carried out. In the event of any delay on Purchaser’s part in attending such tests or in carrying out any inspection after Purchaser receives the seven (7) day notice of readiness the tests will proceed in Purchaser’s absence and shall be deemed to have been made in Purchaser’s presence and the inspection will be deemed to have been made by Purchaser. In any event, Purchaser shall be required to give notice to Seller, in writing, within ten (10) days of witnessing and/or receiving test results, of any claimed defect in the Product and/or nonconformity of the Product to contract specifications. Purchaser shall not be entitled to reject any Work until or unless Seller is given reasonable time and opportunity to rectify the Work.

7. LICENSES AND TAXES:

This Agreement does not include federal, state or local sales, use, privilege, occupation or excise taxes or any other taxes applicable to the shipment(s) of the Products, the Products, or for any Services of Seller (including, without limitation, any and all non-U.S. taxes, duties, levies or assessments). Purchaser is responsible for and shall pay all taxes levied for the shipment(s) of the Products. Purchaser is responsible for and shall provide and pay for all permits, licenses and certificates necessary for the installation and operation of the Products or for any Services provided by Seller.

8. SECURITY INTEREST:

If applicable, Purchaser shall grant Seller a security interest in any Products purchased by Purchaser. Seller shall have all the rights and remedies of a secured party under the Texas Uniform Commercial Code. Purchaser agrees to sign any documents Seller deems necessary to perfect its security interest in the Products. Purchaser agrees that the collateral for Seller’s security interest in the Products shipped to Seller is and shall remain personal property. Seller may require Purchaser to assemble any such collateral at a location Seller deems convenient. Purchaser shall reimburse Seller for any expenses incurred by Seller in protecting or enforcing its rights under this Agreement, including without limitation, reasonable attorney’s fees and legal expenses, and all expenses in taking possession, holding, preparing for disposition and disposing of the collateral for Seller’s security interest in the Products shipped to Seller. Seller may waive any default without waiving any other subsequent or prior default by Purchaser, however to be valid such waiver must be in writing and signed by Seller.

9. PATENT INFRINGEMENT:

Seller shall have no responsibility or liability for patent infringements, the design of any of the Products, or the performance of equipment manufactured according to specifications of Purchaser or Purchaser’s agents. Seller shall have no responsibility or liability for patent infringement on equipment or components manufactured by third parties.

10. ASSIGNMENT:

Purchaser agrees that Seller may assign or sublet this Agreement, in whole or in part, without Purchaser’s notice and consent, not to be unreasonably withheld.

11. RETURNS:

Products shall not be returned to Seller without Purchaser first obtaining Seller’s signed written consent and shipping instructions. Purchaser agrees to promptly pay all costs associated with returned Products. In the event any Products are returned to Seller, Purchaser agrees to promptly pay Seller the restocking charge, which will be a reasonable amount determined by Seller.

12. CANCELLATION, TERMINATION, OR CHANGE OF ORDER:

Once Seller accepts an order by Purchaser, Purchaser waives its right to cancel the order. In the event of termination of an accepted order, Purchaser shall pay all costs, expenses, loss of profits, and damages sustained by Seller in connection with such termination. Terminated orders may be subject to the full invoice price, less any salvage value. No order may be changed without Seller’s written consent and then Purchaser shall bear all costs involved in completing any such changes.

13. NOTICE, APPLICABLE LAW AND FORUM:

Seller shall not be liable for any claims (direct or indirect) which are not presented to Seller, at Seller’s Office, in writing, within one hundred and eighty-one (181) days of the earlier of either the date of loss or the date of the incident giving rise to the claim. To the extent that maritime law does not apply, Seller and Purchaser agree that the law of the State of Texas shall govern this Agreement and all lawsuits related to this Agreement and or Seller’s Products or services shall be filed only in Bexar County, Texas and Seller and Purchaser hereby submit to the personal jurisdiction of Texas. Purchaser and Seller hereby disclaim the applicability of any international convention, law, or treaty, including without limitation, the United Nations Convention for the International Sale of Goods, to this Agreement. During the pendency of any dispute, the parties shall continue to perform the obligations imposed upon them by this Agreement to the fullest extent possible, consistent with the positions with respect to the dispute. Purchaser shall observe and obey any and all applicable international, national, state and local laws, rules, regulations, and any other applicable rules and standards including, but not limited to those issued for the protection of the environment, proper import/export laws, or anti–corruption laws in relation to this Agreement or the Work. Purchaser shall not perform any deceptive, misleading, illegal or unethical business practice in relation to this Agreement or the Work.

14. DEFENSE, INDEMNITY, AND INSURANCE:

PURCHASER AGREES TO DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES, DEMANDS, CLAIMS (INCLUDING PERSONAL INJURY AND WRONGFUL DEATH), LITIGATION, DEFENSES, SUITS, PROCEEDINGS, OBLIGATIONS, ACTIONS, JUDGMENTS, CAUSES OF ACTION, AND EXPENSES (INCLUDING WITHOUT LIMITATION, THE REASONABLE FEES OF LEGAL COUNSEL, INVESTIGATORS AND ACCOUNTANTS), BASED ON CLAIMS OF PERSONAL INJURY OR DEATH BY ANYONE OR FOR DAMAGE TO PROPERTY ARISING OUT OF OR RELATED IN ANY WAY TO THE PRODUCTS OR SERVICES OF THIS AGREEMENT, WHETHER BY THE ACTS OR OMISSIONS OF PURCHASER OR OF SELLER, INCLUDING BUT NOT LIMITED TO SELLER’S: NEGLIGENCE AND/OR GROSS NEGLIGENCE, ACTIVE OR PASSIVE AND PARTIAL OR SOLE, ACTS OF MALICE, STRICT LIABILITY, CONTRACTUAL LIABILITY, ALLEGATIONS OF BREACH OF ANY IMPLIED WARRANTY INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER LEGAL FAULT. SUCH DEFENSE AND INDEMNITY AND HOLD HARMLESS AGREEMENT SHALL INCLUDE, WITHOUT LIMITATION, ANY LIABILITY TO OR ACTION UNDERTAKEN BY ANY GOVERNMENTAL AUTHORITY OR AGENCY (INCLUDING, WITHOUT LIMITATION, THE UNITED STATES GOVERNMENT, STATE GOVERNMENT OR OTHER THIRD PARTIES) UNDER ANY APPLICABLE INTERNATIONAL, FEDERAL OR STATE LAWS OR GOVERNMENTAL ORDERS, RULES, AND REGULATIONS, INCLUDING THOSE RELATING TO POLLUTION. NOTWITHSTANDING, ANYTHING CONTAINED ABOVE, IN THE EVENT THAT AN INJURY OR ACCIDENT CAUSING A CLAIM, DAMAGE, LOSS OR LIABILITY OCCURS WHICH IS SUBJECT TO THE LAWS OF ANY JURISDICTION THAT PROHIBITS OR LIMITS PURCHASER’S ABILITY TO INDEMNIFY SELLER, THEN, IF SUCH LAW MUST BE APPLIED, PURCHASER’S LIABILITY SHALL EXIST TO THE FULL EXTENT ALLOWED BY THE LAW OF SUCH JURISDICTION.

15. LIMITED WARRANTY AND DISCLAIMERS:

Seller warrants that all Work manufactured and sold by Seller will not have defective workmanship and materials, if under normal and proper use, within a set period from the date of delivery (refer to contract for applicable period). Seller shall repair or replace, F.O.B. at Seller’s Office or such other place as indicated by Seller, any such Products manufactured and sold by Seller which are defective within the terms of the foregoing warranty. Seller shall have no obligation to repair or replace such Products unless Seller receives such Products at Seller’s Office or such place which Seller agrees to in writing. Seller warrants that Services will be undertaken in accordance with the standards of care and diligence normally practiced by recognized firms in performing services of a similar nature. If, during one year from the completion of Services, it is shown that the foregoing standards have not been met, Seller shall, at its cost, re-perform the Services as may be necessary to remedy the deficiency. SELLER HEREBY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. THE FOREGOING OBLIGATION TO REPAIR OR REPLACE SUCH WORK, AND/OR RE-PERFORM THE SERVICES SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER OR USERS OF THE WORK, INCLUDING THE OWNER, IRRESPECTIVE OF SELLER’S STRICT LIABILITY, FAULT OR NEGLIGENCE. In the event Seller is requested to provide remedial services at any location other than as set forth in this paragraph, Purchaser shall bear all resulting transportation, lodging, per diem and labor costs incurred by Seller in fulfilling Purchaser’s request. Seller’s limited warranty herein does not apply to: (i) sales of equipment, or products, accessories or attachments manufactured by third parties; (ii) work over or repair work by others; (iii) products or parts requiring replacement because of natural wear and tear, erosion, corrosion or due to improper use, operation, installation or maintenance by Purchaser or others; (iv) any used item(s) with all such sale(s) sold by Seller “AS IS/ WHERE IS;” or (v) there is modification of the Work by others.

16. LIMITATION OF DAMAGES:

Anything in this Agreement to the contrary notwithstanding, the maximum aggregate liability, if any, of Seller (whether arising in contract, tort, negligence, strict liability, breach of warranty, breach of contract or otherwise) under or in connection with this Agreement or the Work rendered hereunder shall be limited to an amount equivalent to ten percent (10%) of the total payments received hereunder, and Purchaser hereby releases Seller from any and all further liability, loss, cost and expense in excess of such amount. SELLER SHALL IN NO EVENT BE LIABLE TO PURCHASER OR ANY OTHER PERSON OR ENTITY FOR LOSS OF OR DAMAGE TO OR LOSS OF USE OF FACILITIES, EQUIPMENT, OR OTHER PROPERTY, WHETHER OF PURCHASER OR THIRD PARTIES, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, OR OTHER INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF ANY CUSTOMERS OF PURCHASER OR OTHER CLAIMANTS RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE SAME, IRRESPECTIVE OF SELLER’S STRICT LIABILITY, FAULT OR NEGLIGENCE.

17. SEVERABILITY:

If any provision of this Agreement is held to be unenforceable, this Agreement shall be deemed to be amended to the extent necessary to make this Agreement enforceable. In the event any provision is unenforceable, the remaining provisions remain in full force and effect. It is the express intent, understanding and agreement of the parties that waivers, limitations and releases of liability set forth in this Agreement are: (i) to be enforceable to the fullest extent allowed by law, notwithstanding the negligence (whether sole, joint or concurrent), strict liability or other fault of a party hereto; and (ii) independent and severable from the indemnities contained in this Agreement, so that in the event any indemnity is found to be void or unenforceable, such finding shall not affect in any way the enforceability of any related waiver, limitation or release of liability.

18. DRAWINGS AND DESCRIPTIVE DOCUMENTS:

All software specifications, drawings, plan designs, and technical documents and information supplied by Seller for Purchaser’s use or information shall remain, at all times, the exclusive property of Seller and may not be copied, reproduced, transmitted, or communicated to a third party without Seller’s prior written consent.

19. ON SITE WORK:

Additional clauses pertaining to work provided on site will be supplied on request.

20. MISCELLANEOUS:

The headings of the paragraphs in this Agreement are for convenience only and are not a part of the Agreement. Seller may waive any default without waiving any other subsequent or prior default by Purchaser, however to be valid such waiver must be in writing and signed by Seller.

1. GENERAL:

The acceptance of our quotation or of any goods supplied given or service rendered includes the acceptance of the following terms and conditions and no variation of or, addition to, the same shall be binding upon us unless expressly agreed in writing by us. Your order shall be subject to our written acceptance.

2. QUOTATION:

Unless previously withdrawn our quotation is open for acceptance in writing within the period stated or when no period is stated within thirty (30 days) after this date. We reserve the right to correct any errors or omissions in our quotation.

3. LIABILITY FOR DELAY:

Any times quoted for delivery are to date from our written acceptance of your order and on receipt of all necessary information and drawings to enable us to put the work in hand. Where delivery is to take place by instalments each such instalment shall constitute a separate contract. We will use our best endeavours to complete delivery of the goods or service in the period stated but accept no liability in damages or otherwise for failure to do so from any cause whatsoever including but without prejudice to the generality of the foregoing world war civil commotion fire, flood, accident labour, dispute shortage of materials, Act of Government or other authority or any other cause or causes (whether similar or not) beyond our reasonable control. In all cases of delay the time for delivery shall be extended by reasonable period having regarded the cause of delay.

4. PAYMENT:

Payment shall be made during the period of manufacture and installation in accordance with the payment terms set out in the quotation and if not so stated, shall be net cash within 30 days of delivery. The payment shall be in pounds sterling. In the event of any amount payable to us being overdue we may without prejudice to any other right, suspend delivery to you or terminate the contract and/or charge you simple interest on overdue amounts at the rate of 2% above the ruling Bank of England Minimum Lending Rate.

5. INSPECTION AND TEST:

Our goods are fully inspected at our works and where practicable subjected to our standard tests before despatch. If tests are required to be witnessed by your representative notice of this requirement must be given at the time of placing the order and notice of readiness will then be given to you seven (7) days in advance of such tests being carried out. In the event of any delay on your part in attending such tests or in carrying out any inspection by you after seven (7) days notice of readiness the tests will proceed in your absence and shall be deemed to have been made in your presence and the inspection will be deemed to have been made by you. In any event you shall be required promptly after witnessing a test if such be the case or promptly receiving test results of witnessed or un witnessed tests to notify us in writing of any claimed defects in the goods or of any respect in which it is claimed that the goods do not conform with the contract. Before you become entitled to reject any goods we are to be given reasonable time and opportunity to rectify them.
You assume the responsibility that the goods stipulated by you are sufficient and suitable for your purpose save in so far as your stipulations are in accordance with our advise and that you have taken and will take all steps to ensure the goods will be safe and without risk to health when properly used. Any additional certification demanded may incur extra cost for which a specific quotation will be issued.

6. DELIVERY & PACKING:

Prices quoted show delivery charges Applicable and include light packing suitable for road or airfreight. Unless otherwise stated prices do not include where applicable any tax licence fee, customs import or export duty or charge of the cost of Special packing or freight or insurance cover.

7. DAMAGE IN TRANSIT AND LOSS IN DELIVERY:

Claims for damage in transit or loss in delivery of the goods will only be considered if the carriers and ourselves receive written notification of such damage within 7 days of delivery or in the event of loss of goods in transit within 21 days of consignment.

8. PRICE:

Unless otherwise stated all quotations are firm and fixed.

9. TRANSFER OF PROPERTY AND RISK:

The title and property in the goods shall pass when full payment has been received of all sums due to us whether in respect of the present transaction or not. The risk in the goods shall be deemed to have passed on delivery.

10. WARRANTY/DEFECTS AFTER DELIVERY:

We will make good by repair or by the supply of a replacement or by equivalent adjustment of the price at our sole option defects which under proper use appear in the goods within a set period (refer to quotation). Provided that all defective parts are carefully packed and promptly returned by you free to our works unless otherwise arranged. A written statement detailing the precise nature of the defect and the operating conditions under which the defect occurred. The repaired new part will be delivered by us free of charge. Save as in this clause herein before expressed we shall not be under any liability in respect of defects in goods delivered or for any injury damage of loss resulting from such defects and our liability under this Clause shall be in lieu of any warranty or condition implied by law as to the quality or fitness of any particular purpose of such goods.

11. PATENTS:

We will indemnify you against any claim of infringement of Letters Patent Registered Design Trade Mark or Copyright (published at the date of the Contract) by the use or sale of any goods supplied or service rendered by us to you and against all costs and damaged which you may incur or for which you may become liable in any action for such infringement. Provided always that this indemnity shall not apply to any infringement which is due to our having followed a design or instruction furnished or given by you or to the use of such goods or service in a manner or for a purpose or for a purpose or in a foreign country not specified or disclosed to use prior to our association or combination with any other article material or service not supplied by us. Provided also that this indemnity is conditional on your giving to us the earliest possible notice in writing of any claim being made or action threatened or brought against you and on your permitting us at our own expense to conduct any litigation that may ensue and all negotiations for a settlement of the claim or action. You on your part warrant that any design or instruction furnished or given by you shall not be such as will cause us to infringe any Letter Patent Registered Design Trade Mark or Copyright in the execution of your order.

12. DRAWINGS AND DESCRIPTIVE DOCUMENTS:

All software specifications drawings plan designs and technical documents and information supplied by us for your own use or information shall remain at all times our exclusive property and much not be copied reproduced transmitted or communicated to a third party without our prior consent in writing.

13. FRUSTRATION:

If any contact or any part of it shall become impossible of performance or otherwise frustrated we shall be entitled to a fair and reasonable proportion of the price in respect of the work done up to the date thereof and for this purpose any moneys previously paid by you shall be retained as against the sum due to us under this provision any balance to be repaid to you or as the case may be any deficiency to be paid to us by you. We may dispose of the goods as we think fit due allowance being made to you for the net proceeds thereof.

14. LEGAL INTERPRETATION:

Any contract will be deemed to be made in England and shall be governed and construed for all purposes and in all respects in accordance with English law and only the Courts of England shall have jurisdiction.

15. ON SITE WORK:

Additional clauses in respect of work provided on site will be supplied on request.

DECLARATION: I acknowledge that all orders are accepted by Sonatest in accordance with their terms and conditionsand agree that my company shall be bound by them in all transactions.