Terms of service

ZIMA DENTAL – WHOLESALE TERMS AND CONDITIONS

TERMS AND CONDITIONS

Recitals

A. The terms and conditions of Zima Dental, operating subsidiaries and all affiliated companies are contained below.

B. We have engineered the Dental Pod®, the UK’s first ultrasonic oral appliance cleaner.

C. We have agreed to supply the Products to you, and you are entitled to resell to individual consumers within the Territory, in accordance with the terms of these Terms.

Parties

These Terms are entered into between KP Medical Ltd, a company registered in England and Wales with the company number 12734513 as the supplier (we, us, or our) and the person or entity described in the invoice or receipt as the purchaser, (you or your), together the Parties and each a Party.

1 Acceptance

You accept these Terms by the later of you:

(a) paying the Deposit;

(b) instructing us (whether orally or in writing) to proceed with the supply of the Products; or

2 Products and Orders

2.1 In consideration of your payment of the Price, we will provide the Products in accordance with these Terms and the Order.

2.2 An Order under these Terms is not made until you have made payment of the Deposit.

2.3 We may in our sole discretion, and for any reason, accept or reject an Order, including where you have not entered into a Deed of Guarantee with us (if we request for you to enter into one), or where you have any outstanding amounts owing to us

2.4 An Order cannot be cancelled by you once it is made.

3 Conditions of Resale

3.1 You agree to:

(a) only sell the Products within the Territory to end customers, and not for resale to further suppliers;

(b) not sell any of the Products online, including but not limited to marketplaces such as Shopify, Amazon, eBay, Alibaba or Taobao; and

(c) not sell the Products to third parties who you know or suspect (or that you should reasonably have known or suspected) will violate this clause 3.1;

(d) not to advertise the Products via online platforms, including but not limited to Google and Meta, without written or verbal consent from KP Medical Ltd.

(e) not offer or sell the Products at a price lower than the retail price listed on the Zima Dental consumer website(s) that advertise in your Territory;

(f) be a reseller of the Products and not an end consumer;

(g) be responsible for any liability concerning sales tax as a result of the sale from Zima Dental to the you;

(h) if selling within the United States, possess a valid reseller certificate, which must be provided to Zima Dental upon request; together the “Conditions of Resale.”

3.2 These Terms do not in any way create the relationship of principal and agent between us and you and under no circumstances will you be considered to be our agent. You agree not to act or attempt to act, or represent yourself, directly or by implication, as our agent or in any manner assume or create, or attempt to assume or create, any obligation, liability, representation, warranty or guarantee on behalf of us or in our name.

4 Insurance

You are required to effect and maintain from the point of purchase of the Products and for 1 year thereafter, and with a reputable insurance provider, a public and products liability insurance policy, or equivalent, in the amount of no less than £1 million (or an amount as prescribed by KP Medical) for any one claim, and all other insurances required by law in order for you to resell the Products.

5 Price

5.1 You agree to pay the Deposit upfront at the time that you issue the Order.

5.2 You agree to pay any remainder of the Price using the payment method set out on the invoice, within 14 days of the delivery of the Products to the Delivery Location.

5.3 If any payment had not been made in accordance with these Terms, and remains unpaid for a period of 5 business days after the due date, we may (at our absolute discretion):

(a) charge interest at a rate equal to 4% above the Bank of England's base rate, from time to time, but at 4% a year for any period when that base rate is below 0%, per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms;

(b) enter any premises where the Products the subject of any unpaid amount are stored or held, for the purpose of retrieving and taking possession of those Products, and you agree to provide any access, items and consents required to enable us to do so; and/ or

5.4 The Price will be based on the currency specified in the invoice. If no currency is set out in the invoice, it will be in GBP.

6 Delivery

6.1 We will use our reasonable endeavours to deliver the Products to the Delivery Location by the agreed delivery time, however you acknowledge that such time is an estimate only, and creates no obligation on us to supply the Products by that time.

6.2 Unless otherwise specified in the Order, the cost of delivery and insurance to ship the Products to the Delivery Location will be included in the Price.

6.3 You agree to inspect the Products as soon as possible after their delivery at the Delivery Location, or upon collection by you at the Collection Location. You agree to notify us in writing promptly and, in any event, within 48 hours of such inspection, if you consider that the Products are Defective or do not conform with these Terms or the relevant Order, specifying the nature of the Defect or lack of conformity. If you fail to notify us within this period, you will be deemed to have accepted the Products.

7 Title and risk

7.1 Title to the Products will pass to you on the date that you pay the Price (including the Deposit, if any) for the relevant Products in full.

7.2 You agree that we hold a general lien over the Products owned by us that are in your possession, for the satisfactory performance of your obligations under these Terms.

7.3 Risk in the Products will pass to you when we have delivered the Products to the Delivery Location.

8 Our obligations

8.1 During the Term, we agree to supply the Products to you in accordance with:

(a) these Terms and the agreed Order; and

(b) all applicable Laws in the United Kingdom.

8.2 We agree to:

(a) supply the Products so that they are free from Defects on delivery or collection (as applicable);

(b) assist you in dealing with complaints from your customers in relation to the Products, where such complaints arise from Defects in the Products or from our default otherwise; and

(d) provide you with access to our existing marketing material and designs, in our discretion, to market the Products as part of your 3D Membership Bundle.

9 Your obligations

9.1 Promotion, marketing and branding: Without limiting and in addition to any other obligation under these Terms, you agree:

(a) that you will only use images of the Products that we provide to you to market the Products;

(b) that in the absence of written pre-approval from us, you may only sell the Products in the form and packaging as supplied by us, unless to do so would be in breach of any applicable Laws relating to the Products or packaging. In this event, you should notify us as soon as possible of any changes to the form and packaging of the Products;

(c) to ensure that all marketing and promotional material complies with all local laws, and not to use the Marketing Materials if it does not; and

(d) to not make or offer any warranty or guarantee, or make any representation, in relation to the Products, other than those warranties, guarantees or representations expressly stated in the material provided by us.

9.2 Product Recalls: You agree to assist us with executing any recalls of the Products when notified by us, and within the timeframe reasonably required by us at our expense. We agree to reimburse you for any costs or expenses reasonably, directly and necessarily incurred as part of assisting us to execute a recall, unless the recall was caused by you.

10 Warranty

10.1 You agree to pass on to your customers the benefit of any Warranty Against Defects that we provide, as set out in any documentation we provide to you.

10.2 Where your customer makes a claim under the Warranty Against Defects, you agree:

(a) to provide us with information of the claim, including the alleged defect with the Product, and any other information we request, to allow us to assess the claim;

(b) that where we (in our sole discretion) determine that a customer has a valid claim under our Warranty Against Defects, you will assist us to resolve the Warranty Against Defects claim by:

(i) replacing the defective Product with an identical Product from your stock on hand. If you replace with stock on hand, we agree to credit you for the wholesale value of the Product in your next order with us; or

(ii) where you do not have a replacement Product in stock, or do not wish to replace the Product with Product you have in stock, you will contact us to arrange delivery of a replacement Product to you. You agree to arrange delivery of the replacement Product from you to the customer.

(c ) You agree not to make any representations, warranties, statements or guarantees to any person in respect of the Products in addition to or which conflict with those made by us.

11 Warranties and representations

11.1 Each Party represents, warrants and agrees that:

(a) it has full legal capacity, right, authority and power to enter into these Terms, to perform its obligations under these Terms, and to carry on its business; and

(b) these Terms constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.

11.2 You represent, warrant and agree that you hold all qualifications, certifications, permits, approvals, licences, accreditations and other things required, if applicable, to sell the Products in the Territory.

12 Confidentiality

12.1 Each Receiving Party agrees (and will ensure that its Personnel agree):

(a) not to disclose the Confidential Information of the Disclosing Party to any third party;

(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

12.2 These obligations do not apply to Confidential Information that:

(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;

(b) is authorised to be disclosed by the Disclosing Party;

(d) must be disclosed by law or by a regulatory authority, including under subpoena; or

(e) is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that the Receiving Party ensures the adviser complies with the terms of clause 12.1.

12.3 Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 12. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach of this clause 12).

12.4 This clause 12 will survive the termination or expiry of these Terms.

13 Intellectual Property

13.1 As between the Parties, we own all Intellectual Property Rights in the Products, and nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in the Products, or any of our other products or materials developed prior to or independently of this Agreement.

13.2 Where we provide you with Marketing Materials, we own all Intellectual Property Rights in the Marketing Materials, and we grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence to use the Marketing Materials solely for the promotion of the Products for sale in the Territory by you, as contemplated by these Terms.

13.3 You must only use Marketing Materials, and no other materials, for the purpose of the sale or resale of the Products under these Terms.

13.4 When reselling the Products, or in the use of any Intellectual Property Rights in connection with these Terms, you must not infringe the Intellectual Property Rights of us or any third party, or commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.

13.5 Any goodwill accrued in connection with your use of the Marketing Materials (including our trade marks) will at all times vest in us, and you are not entitled to any compensation for the accrual of goodwill.

13.6 This clause 13 will survive termination or expiry of these Terms.

14 Liabilities

14.1 Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

(a) a breach by you of these Terms;

(b) any property loss or damage, or personal injury or loss, caused by your (or your Personnel’s) resale of the Products;

(d) any breach by you (or any of your Personnel) of clauses 12 or 13 of these Terms or any Law, except to the extent the Liability was caused by our negligent acts or negligent omissions.

14.2 Nothing in this Agreement limits any Liability which cannot legally be limited, including Liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and

(d) defective products under the Consumer Protection Act 1987.

14.3 To the maximum extent permitted by law:

(a) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including a failure to mitigate that Liability; and

(b) and despite anything to the contrary, our maximum aggregate Liability arising from or in connection with these Terms will be limited to us resupplying the Products to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Products to which the Liability relates.

14.4 We have given commitments as to the compliance of the Products with this Agreement and applicable Laws in these Terms. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the maximum extent permitted by law, excluded from these Terms.

14.5 This clause 14 will survive the termination or expiry of these Terms.

(e) Force Majeure

a. Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement to the extent that such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

(f) Disputes

a. A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may:

i. where both Parties are resident or incorporated in England and Wales, refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask The Centre for Effective Dispute Resolution to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties; or

ii. where one Party is resident or incorporated outside England and Wales, refer the matter to arbitration administered by the London Court of International Arbitration (LCIA) with such arbitration to be conducted in London, England, in English, and in accordance with the LCIA rules. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator shall be final. b. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

b. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

(g) General

a. Amendment: These Terms may only be amended by written instrument executed by the Parties.

b. Assignment: Subject to clause 17.3, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

c. Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

d. Counterparts: These Terms may be executed in any number of counterparts that together will form one instrument.

e. Contracts (Rights of Third Parties) Act 1999: Notwithstanding any other provision of this Agreement, nothing in this Agreement confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.

f. Entire agreement: This Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes and extinguishes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, whether written or oral, in respect of its subject matter. Each Party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

g. Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

h. Governing law: These Terms is governed by the laws of England and Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in England and Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

i. Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

j. Relationship of Parties: These Terms is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

k. Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

l. Reseller Requirement: The buyer must be a reseller of the Products and not an end consumer.

m. Sales Tax Liability: Any liability concerning sales tax as a result of the sale from Zima Dental to the reseller shall sit with the reseller.

n. US Reseller Certificate: For buyers within the United States, a valid reseller certificate must be possessed and provided to Zima Dental upon request.

(h) Value Added Tax

a. Where the Products are being delivered outside of the United Kingdom, you agree that we are not responsible for any value-added taxes or other taxes or duties imposed upon the Products by a taxation authority of the relevant jurisdiction, and that these value-added taxes or other taxes or duties will be borne by you.

(i) Definitions and Interpretation

a. Interpretation

In these Terms, unless the context otherwise requires:

i. a reference to these Terms or any other agreement includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

ii. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

iii. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

iv. no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

v. a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

vi. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them severally; and

vii. a reference to time is to local time in London, England.

b. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Business Day means a day on which banks are open for general banking business in England, excluding Saturdays, Sundays and public holidays.

Conditions of Resale is as defined in clause 3.1.

Confidential Information includes information or documentation which:

(a) is disclosed to the Receiving Party in connection with these Terms at any time;

(b) is prepared or produced under or in connection with these Terms at any time;

(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Deed of Guarantee means, if applicable, a deed of guarantee and indemnity signed by a director of your company, in a form provided by us, and which guarantees payment of the Price under your Order.

Defect means a failure of the Product to comply with our specifications for the relevant Product, as a result of our default, and Defective has a corresponding meaning.

Delivery Location means the place where the Products will be delivered, as set out under ‘Shipping Details’ in the invoice.

Deposit means the amount required to be paid by you upfront, upon placement of an Order. Unless otherwise set out in the Order, this amount shall be 50% of the Price.

Disclosing Party means the party disclosing the Confidential Information to the Receiving Party.

Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, business names, get-up, goodwill, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms, including, without limitation:

(a) using our Intellectual Property, including Marketing Materials, for any other purpose other than for the purpose of the sale or resale of the Products under these Terms;

(b) registering our Intellectual Property in any jurisdiction;

(d) altering, removing or defacing any of our Intellectual Property, including our Marketing Materials.

Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Law or Laws means all applicable laws, orders, judgments, rules, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Products.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), misrepresentation, restitution, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Marketing Materials means any marketing materials (including photographs) authorised to be used by us, and which we provide to you, for the purpose of promoting the Products, and any registered or unregistered trade marks relating to the Dental Pod®.

Order means an order that has been made by you and accepted by us, for the provision of Products to you under these Terms.

Personnel means, in respect of a Party, any of its officers, employees, consultants, suppliers, subcontractors or agents.

Price means the price payable by you to us for the Products and Delivery (excluding taxes), as set out in your invoice.

Products means the products we agree to supply to you, as set out in your invoice.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Terms means these terms and conditions, the Order, the corresponding invoice, and any annexures and attachments included in these terms and conditions. Warranty Against Defects means our warranty terms which apply to end users of the Products, as published by us, and as included in the Product’s packaging.

Warranty Against Defects means our warranty terms which apply to end users of the Products, as published by us, and as included in the Product’s packaging.

Territory means the country where we deliver the products to you, unless otherwise agreed in writing between the Parties.

Updated: 30th May 2024