1. GENERAL

(i) These conditions shall apply to any contract (“the Contract”,) for the sale of goods (“the Products”) by Zest Technologies Limited (“Zest”) to any person (“the Purchaser”). These conditions shall prevail over all conditions specified by the Purchaser to the extent that they conflict or are inconsistent herewith.

(ii) No contract shall be made until Zest has accepted the Purchaser’s order in writing. Zest’s written acceptance is subject to these Conditions of Sale applying.

2. PRICES, IMPORT DUTIES

(i) Unless otherwise specifically agreed, Zest’s prices are quoted in sterling, exclusive of VAT. Unless otherwise agreed, all prices are subject to alteration without notice and the price applicable shall be that ruling at the date of despatch of the Products from Zest’s premises. The Purchaser shall also be responsible for the amount (if any) by which Zest’s liability to any customs or import duties applicable to the Products increases between the time of the Contract and the importation of the Products into the country of destination and for all carriage charges. Export packaging is not included in the price and will be charged at cost.

(ii) In the case of fixed price Contracts, any fluctuation in the rate of exchange between UK Sterling and the currency of the Contract occurring at any time prior to despatch of the Products and amounting to more than 10% of the Contract price shall give Zest the right to renegotiate the price with the Purchaser. If the parties fail to reach agreement on a new price Zest shall have the option to rescind the Contract by notice in writing at any time prior to despatch of the Products to the Purchaser.

3. PAYMENT

Payment terms shall be as agreed between the parties in writing. If no special payment terms are agreed, payment shall be due within 30 days of the invoice date. Zest shall be entitled to charge interest on the outstanding balance of overdue accounts at the rate of 2% per month accruing daily until the date of payment.

4. DELIVERY

(i) Every reasonable effort will be made to meet any quoted delivery date. However, delivery dates are estimates only and time of delivery shall not be of the essence. Zest shall not be liable for any loss or damage caused by delay or failure to deliver Products on a quoted date.

(ii) Failure by the Purchaser to accept delivery of Products tendered in accordance with the Contract shall entitle Zest to immediate payment in full for the Products so tendered and to store the Products at the Purchaser’s risk and expense. Zest shall be entitled after the expiration of three months from the date on which the price of the Products became payable to dispose of the Products in such manner as it thinks fit.

5. FORCE MAJEURE

Zest shall be under no liability for delay in or non-performance of any obligations under the Contract due to failure to secure necessary import or export licences, acts of God, judicial action, defaults of sub-contractors or suppliers, fire, flood, war, hostilities, riot, strike, trade dispute, embargo, import restriction, shortage of ship’s space or other circumstances (whether like or unlike the foregoing) beyond Zest’s reasonable efforts to control and in any such event Zest may at its option cancel the Contract or any outstanding part of it, or suspend performance of it.

6. INSTALMENTS

Zest reserves the right to deliver in instalments at its discretion. Each instalment shall be treated as a separate contract and any delay or default in respect of any instalment shall not relieve the Purchaser of its obligation to accept and pay for the remaining instalments.

7. SHIPMENT

Contracts for the sale of Products on FOB or CIF terms shall, unless otherwise agreed in writing, be governed by those terms as defined in ICC Incoterms 2000.
In the case of FOB sales, failure by the Purchaser to give shipping instructions on time and to provide necessary shipping space shall entitle Zest to deal with the Products in the manner specified in Clause 4(ii) above. In the case of CIF sales, insurance shall be effected for the contract price plus 10%; any additional insurance required by the Purchaser shall be at its own expense. Any additional freight rate or insurance premium imposed owing to war or other irregular circumstances is to be paid by the Purchaser.

8. RE-EXPORT

The Purchaser shall not resell the Products to any other country than the country designated in the Contract for delivery, directly or indirectly, without the written consent of Zest. In the event any Products subject to the Contract is designated as controlled products, the Purchaser shall not directly or indirectly export, re- export, tranship or make available such products, including software parts, technical information or date and documents relating to the Purchaser’s order, to any third parties outside of the Purchaser’s country in violation of any applicable export control laws, rules and regulations promulgated and administered by the government of the Zest’s country and/or the government of the country claiming the jurisdiction over the parties and / or the transaction the subject of the Contract.
In the event that an Export License is not obtained from the government of Zest’s country prior to the agreed date of shipment, the contract (agreement) shall be null and void and of no effect.

9. PROPERTY AND RISK, INSURANCE

(i) Notwithstanding delivery, property and title in the Products supplied shall remain with Zest until those Products and any other Products on the subject of any contract between Zest and the Purchaser has been paid for in full.

(ii) At any time prior to the Purchaser making payment in full for Products supplied by Zest, Zest may, by notice in writing to the Purchaser, require the Purchaser to keep the Products stored in such a manner as to be clearly identifiable as Zest’s property and in such case the Purchaser may not sell, alter or otherwise dispose of the Products without Zest’s written consent until such Products are paid for in full.

(iii) Notwithstanding 9(i) and 9(ii) above, the risk of damage to or loss of the Products shall pass to the Purchaser on delivery (subject to any other term of the Contract providing for risk to pass earlier).

(iv) Until payment due under all contracts between Zest and the Purchaser has been made in full:-

(a) the Purchaser shall hold the Products as Zest’s fiduciary agent and bailee and shall ensure the Products are kept in good condition and kept adequately insured against loss or damage;

(b) the proceeds of sale or hire of the Products or of any insurance claim in respect of the Products shall be paid into a separate bank account and shall be held by the Purchaser on trust for Zest.

(c) If the Purchaser makes default in any payment due to Zest, Zest may, without prejudice to any other of its rights, repossess the Products to which it has retained title as aforesaid and thereafter resell the same and the Purchaser hereby grants an irrevocable right and licence to Zest’s servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours for the purpose of re-possessing the same. This right shall continue to subsist notwithstanding the termination of this contract for any reason and is without prejudice to any accrued rights of Zest hereunder or otherwise.

10. INTELLECTUAL PROPERTY INDEMNITY

Unless Zest or Zest’s supplier expressly warrant and represent non-infringement of intellectual property rights in the Products to the Purchaser, the Purchaser shall indemnify and hold harmless Zest from and against any damages, liabilities, losses, costs or expenses arising from or in connection with any infringement of patent, trade mark, utility model, design, copyright or other intellectual property rights in the Products by reason of importation or sale of the Products by the Purchaser, whether in Zest’s country or in any other country. Nothing herein contained shall be construed as transferring any patent, utility model, trade mark, design or copyright in the Products; all such rights are expressly reserved to true and lawful owners thereof. In case any dispute and/or claim arises in connection with the above right and/or rights, Zest reserves every and all rights to cancel, make null and avoid this contract at its discretion and to hold itself free from any liability arising therefrom. The Purchaser shall be responsible for every loss and/or damage cause thereby.

11. LOSS AND DAMAGE IN TRANSIT, NON-CONFORMITY

The Purchaser shall examine the Products immediately upon delivery for any obvious damage in transit or shortage.
The Purchaser shall note the details of any visible damage in transit on the carrier’s receipt note. Any claim that Products are damaged in transit, short delivered or not in conformity with the Purchaser’s order must be notified to Zest within five working days of delivery. Zest shall have no liability for such claims unless these conditions are observed. Zest ’s sole liability for errors in quantity or type of Products supplied or for damage in transit shall be to make good any shortage or non-delivery and to repair or replace any damaged Products.

12. LICENCES AND CONSENTS

If any licence or consent of any government or other authority shall be required for the acquisition or use of the Products by the Purchaser, the Purchaser shall obtain the same at its own expense and if necessary produce evidence of the same to Zest on demand. Failure to do so shall not entitle the Purchaser to withhold or delay payment of the price. Any additional expenses or charges incurred by Zest resulting from such failure shall be for the Purchaser’s account.
If Zest needs to obtain an export licence from the competent authorities of the UK, Japan or any other country of origin of the Products or the Products are subject to any restrictions, the Purchaser shall provide Zest with all information required by Zest in this connection including, but not limited to, the country of ultimate destination and the name and address of the consignee and shall warrant that such information is true, accurate and sufficiently detailed. The Purchaser further agrees to take all necessary steps in connection therewith including, but not limited to, application for an international import certificate, import licence and delivery verification, as applicable.

13. DESCRIPTION

All weights, measurements, dimensions, drawings, capacities, specifications and other particulars contained in photographs, catalogues, price lists or advertising material are only approximate. Such particulars do not form part of the Contract and deviations therefrom or subsequent changes in design are not grounds for non-acceptance of the Products and do not constitute a breach of contract. The condition implied by Section 13(1) of the Sale of Goods Act 1979 (as amended) is hereby excluded.

14. WARRANTY

(i) Zest warrants to the Purchaser that Products manufactured by it will be free from defects in materials and workmanship for a period of 12 months from the date of shipment to the Purchaser. Zest undertakes to repair or replace, at its option, free of charge, any part or parts which under proper and normal use prove defective within such period other than parts with a working life of less than 12 months such as filaments, energy sources and lamps. Zest reserves the right to charge the Purchaser at normal service rates for any re-alignment, re-calibration, adjustment or cleaning work required other than as a result of defects in materials or workmanship. If required by Zest , the Purchaser will return to Zest’s premises any defective parts covered by the above warranty at the Purchaser’s own expense and risk.

(ii) Where Products supplied (but not manufactured) by Zest are covered by a manufacturer’s warranty, Zest will upon request supply the Purchaser with a copy of such warranty. If such warranty may only be enforced by Zest against the manufacturer, Zest undertakes to use its reasonable endeavours to enforce the said warranty on the Purchaser’s behalf. Zest gives no other warranty in respect of such Products.

15. CANCELLATION AND RESCHEDULE

Except as otherwise agreed, Purchaser shall not have the right to cancel, reschedule, change or modify all or any portion or installment of the Products covered by the Contract without the prior written consent of Zest.

16. LIMITATION OF LIABILITY

Except as specified as in 14(i) above Zest shall have no liability (other than liability for death or personal injury resulting from Zest’s negligence) for any direct or indirect loss or damage (including loss of anticipated profits and other consequential losses) suffered by the Purchaser or any other person arising out of the supply of the Products, whether or not caused by the negligence of Zest, its employees or agents.

17. TERMINATION

Should the Purchaser make default in any payment or otherwise be in breach of its obligations to Zest under the Contract or under any other contract with Zest or compound with or execute an assignment for the benefit of its creditors or commit any act of bankruptcy or being a company enter into voluntary or compulsory liquidation or suffer a receiver or manager or administrator to be appointed over all or any part of its assets or take or suffer any similar action in consequence of debt or become insolvent or should Zest have reasonable cause to believe that any of these events is likely to occur, Zest may, by notice in writing to the Purchaser, without prejudice to any other of its rights, forthwith suspend or cancel any uncompleted part of the Contract or stop any Products in transit or require payment in advance or satisfactory security for further deliveries under the Contract.

18. VARIATIONS

No variation or addition to these conditions shall be effective unless in writing and signed by a director or general manager of Zest .

19. GOVERNING LAW

These conditions shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts save that Zest shall be entitled to bring proceedings against the Purchaser in the courts of the jurisdiction where the Purchaser resides or carries on business.