| 1. DEFINITIONS AND INTERPRETATION
In these General Conditions of Sales:
(a) unless the context otherwise requires:
“Company” means Penlon Limited and includes a successor in title to the business of Penlon Limited;
“Contract” means a contract under the terms of which the Company is liable to supply goods and or services of any description;
“Customer” means the party having the right to enforce the supply by the Company of goods and/or services of any description under the terms of a contract.
(b) words importing one gender shall be treated as importing any gender and the singular number shall include the plural; and
(c) the titles to the several conditions are inserted for convenience only and shall not be deemed to form part of the conditions.
2. PRICES, QUOTATIONS AND ESTIMATES
(1) Quotations/estimates in writing alone shall bind the Company; they remain valid for three calendar months from their date of issue and then expire, unless renewed in writing by the Company.
(2) Unless the Company stipulates, or agrees, otherwise, the Company’s prices are ex-works prices.
(3) The Company’s list prices are subject to alteration without notice.
(4) Quoted prices relate to the quantity of goods quoted for, and may not be applicable if a different quantity of goods is ordered.
(5) Designs, drawings, illustrations and samples supplied to the Customer remain the property of the Company, may not be copied or reproduced, and are to be returned to the Company within a reasonable time.
3. CONTRACTS
(1) A contract shall not come into existence until the company despatches its written acceptance of the Customer’s order, or commences to deliver the goods, whichever shall occur the sooner.
(2) The terms and conditions of a contract shall be such as are contained in the Company’s quotation/estimate together with these General Conditions of Business, and such other terms and conditions as the Company may stipulate or agree, to the exclusion, so far as the law may permit, of all other items and conditions whatsoever, whether express or implied.
(3) The terms and conditions of a contract shall be limited to such as are expressed in writing, to the exclusion of all oral expressions whether of advice, opinion or otherwise.
(4) Where a term of an estimate or quotation, or any other express term of a contract, is found to be in conflict with any one or more of these General Conditions of Business, the terms of the estimate or quotation, or the other express term of the contract, as the case may be, shall, unless the context otherwise requires, prevail.
(5) The Customer acknowledges that he has not been induced to enter into the contract by any representation made by or on behalf of the Company, except such as may be contained in, or endorsed by the terms of the contract.
4. TAX
Unless otherwise quoted or agreed, the Company’s prices do not include Value Added Tax, or any other tax, levy, duty or surcharge, whether imposed before or after the making of the contract.
5. CREDIT LIMITS
(1) Where the Company has granted the Customer a credit facility, the Company may withdraw the same without either giving any reason for so doing or thereby incurring any liability to the Customer.
(2) If the Customer takes goods from the Company in excess of the Customer’s credit limit, the Company may require payment on demand for such excess goods.
6. PAYMENT
(1) The Company’s invoices are due for payment strictly in accordance with the terms shown below and on the Acknowledgement of Order and the invoice.
(2) Except as the Company’s quotation/estimate may provide, no discounts are allowable, or may be taken, against amounts invoiced by the Company, nor shall the Customer be entitled to any commission or rebate in respect thereof, and this not withstanding any previous course of dealing between the Company and the Customer.
(3) When payments of any of the Company’s invoices is overdue, the company may suspend its performance of the contract to which the invoice relates and/or of any other contract then subsisting between the Company and the customer for the period until the invoice is paid.
(4)
| Term |
Description |
| 21st |
By 21st of month following invoice |
| CIA |
Cash in Advance |
| 30D |
30 Days Open Account |
| 60D |
60 Days Open Account |
| LOC |
Letter of Credit at sight |
| CLC |
Letter of Credit confirmed by 1st Class UK Bank |
| FOC |
Free of Charge |
7. DELIVERY
(1) Delivery dates are quoted in good faith and as accurately as possible but are not guaranteed.
(2) When the Company is required to deliver goods, the Company shall have the sole discretion as to the mode of transport to be adopted.
(3) Delivery of goods by the Company does not include the provision of labour and equipment for unloading, which the customer shall be liable to provide, at the Customer’s own cost.
(4) When the Company is required to deliver the goods, the Company’s liability for so doing shall be limited to delivering them as near to the place where the goods are required as a safe hard road permits. If, in any particular case, the Company should agree to relax this condition, the relaxation shall be deemed to have been given in consideration of an indemnity from the Customer against all losses, costs, and expenses which the Company may incur or pay as a result of such relaxation.
(5) Goods held by the Company pending delivery instructions may be subject to a storage charge.
(6) The Company may deliver goods by instalments.
8. NON-DELIVERY AND DAMAGE IN TRANSIT
(1) Claims for non-delivery, shortage and damage in transit will be entertained only if the Customer observed whichever of the following procedures is appropriate.
Non-delivery - to be notified in writing to both the Company and the carrier within 14 days of the date of the Company’s advice of despatch.
Short delivery and damage in transit - to be notified in writing to both the Company and the carrier within 3 days of receipt of the goods, followed by a detailed claim to be made both against the Company and against the carrier within 14 days of the date of the Company’s advice of despatch.
(2) When delivery is taken without the goods being examined, the Customer must endorse any receipt or acknowledgement of delivery, “not examined”.
(3) Goods alleged to have been damaged in transit shall be held by the Customer for inspection by, or on behalf of, the Company and the carrier for a period, if the point of delivery of the goods is within the United Kingdom, of 14 days after delivery to the Company of the Customer’s detailed claim in respect of the damage or, if the point of delivery of the goods is outside the United Kingdom, of 45 days after the delivery of such claim.
9. VARIATION AND CANCELLATION
(1) Subject to Condition (3) below, the terms of a contract may not be varied, nor may the contract be suspended or cancelled without prior consent in writing of the Company, which may be given on terms.
(2) If the Company’s performance of a contract is interrupted or hindered for any reason other than the default of the Company, the Customer shall be liable to pay the Company a proper price for any additional work or attendance thereby required.
(3) The Company reserves the right to vary by way of improvement, the specification of any of its products, and to supply goods to a specification as so varied in fulfilment of any order.
10. RETURNS
Goods sold to the Customer may only be returned to the Company provided that the following conditions have been met:
(a) The written consent of the Company must have been given prior to any return.
(b) The goods must be in new and unused condition, of current type or model and not been made or obtained to the Customer’s special order.
(c) Return to the Company is made within three months of the invoice date.
All goods returned will be subject to the payment of the Company’s handling charge.
11. TIME FOR PERFORMANCE
(1) No provision or stipulation as to the time within which the Company shall perform its obligation under a contract shall be, or be deemed to be, of the essence of the contract.
(2) The Company shall not be liable to the Customer if, and to the extent that, the delivery of goods and/or the provision of services is hindered by circumstances outside the company’s control, which shall be deemed to include, but shall not be limited to, fire, accident, industrial disputes, shortages of material and power and failure on the part of the Company’s suppliers.
12. WARRANTY
Penlon Warranty
Penlon makes no representation, warranty or guarantee, express or implied regarding the Products except its standard form of limited warranty ("Limited Warranty"). Penlon may in its sole discretion modify its Limited Warranty at any time and from time to time.
Beginning on the date of manufacture, as indicated by Serial or batch number, to its direct customer and continuing for the published warranty period, Penlon represents that the Products are new and warrants that each Product failing to function properly under normal use, due to a defect in materials or workmanship or due to non conformance to the agreed upon specifications, will be repaired or exchanged, at Penlon's option and expense.
The published warranty periods are 12 months for capital equipment, 36 months for Delta vaporizers, 4 months for hoses, breathing bags, bellows and masks of rubber or plastic materials, and lifetime for Laryngoscopes.
The customer will obtain a Goods Return Approval Form from the Penlon Technical Support Desk prior to returning the nonconforming Product freight prepaid. Penlon will pay for transporting the repaired or exchanged Product to Customer.
Repaired, replaced or exchanged Product will be warranted for the remainder of the original warranty. This Limited Warranty extends to Penlon's direct customer only and is not assignable or transferable.
Disclaimer
Except as set forth in writing in the Limited Warranty, Penlon makes no performance representations, warranties, or guarantees, either express or implied, oral or written, with respect to the Products, including without limitation any implied warranty (a) of merchantability, (b) of fitness for a particular purpose, or (c) arising from course of performance, course of dealing, or usage of trade.
Voiding the warranty
This warranty does not apply: (a) to damage caused by accident, abuse, misuse, misapplication or non-Penlon products, (b) to damage caused by service performed by anyone other than Penlon, (c) to a product or a part that has been modified without the written permission of Penlon, (d) to a product that has not been maintained in accordance with the published service schedule, (e) to components designated as service items to be replaced by the customer as part of the published service schedule, or (f) if any Penlon serial number has been removed or defaced.
Product warranty is void if the covers or top cover, or any seal or label is removed or damaged, or a repair attempted.
Extending the warranty
For warranties to be extended, a letter of warranty extension must be obtained from the relevant sales manager and kept for reference.
13. CONSEQUENTIAL LOSS
Except where negligence on the part of the Company is shown to have resulted in the death of, or bodily injury to, any person, the Company shall not be liable for consequential loss suffered by the Customer as a result of the Customer having entered into a contract, and the Company’s price levels are set accordingly.
14. DESCRIPTIVE MATTER
(1) Descriptive matter contained in catalogues, brochures and any other publication or display is believed correct and up-to-date, but is not warranted so, unless specifically confirmed in writing by the Company.
(2) Colour indications, whether given by means of the provision of samples or derived from colour charts or descriptions, are necessarily approximate, by reason of inevitable variations in the processes of manufacture and reproduction.
15. PASSING OF PROPERTY AND RISK
(1) The risk in goods supplied by the Company shall pass to the Customer on delivery of the goods to or to the order of the Customer in accordance with the terms of the contract.
(2) Whether or not the risk in goods sold shall have passed to the Customer, the property in goods sold shall be and remain in the Company until the Company has received payment in full for them, together with payment in full for any other goods supplied by the Company to the Customer the price for which is overdue for payment. Pending receipt by the Company of such payments, the Customer shall hold the goods for the Company as fiduciary bailee.
(3) When payment for the goods is overdue or the Customer suffers distress or execution to be levied against his or its effects, makes an arrangement or composition with creditors or, being a corporate body, enters into liquidation (otherwise than for the purpose of amalgamation or reconstruction where the corporate body, as amalgamated or reconstructed accepts in full the Customer’s liability to pay for the Goods), or has a receiver appointed for the whole or any part of its undertaking or, being an individual, has a receiving order in bankruptcy made against him, then:
(a) if the Customer remains in possession of the goods, whether or not the Customer has sold them, the Company shall be entitled to recover the goods from the Customer: or
(b) if the Customer has parted with possession of the goods by way of sale, whether or not the goods have been mixed with or incorporated into other goods, the Customer, having sold them as fiduciary bailee, shall hold in trust for the Company so much of the proceeds of sale of the goods as represents the Customer’s liability to the Company in respect of them.
16. FITNESS FOR PURPOSE
Except where goods are supplied on the express advice of the Company, given in writing, that they are suitable for any particular purpose, it shall not be a term of a contract that goods are sold as fit for any particular purpose, and this notwithstanding that the Company may have, or be deemed to have, knowledge of the purpose for which the goods are required.
17. THIRD PARTY RIGHTS
(1) The Company does not warrant, nor shall it be an implied term of a contract, that goods and designs sold or employed by the Company do not infringe the rights of any third party.
(2) Where information, instruction or guidance received from the Customer is the direct or indirect cause of any assertion by, or on behalf of a third party, that the Company is in breach of any right of that party, the Customer shall be deemed to have agreed to indemnify the Company against all costs incurred by the Company as a result of such assertion.
18. CUSTOMER INSOLVENCY
Except where payment for goods to be supplied has been made or secured in advance of their delivery to or to the order of the Customer, the Company shall be entitled to withdraw from a contract if and when the Customer suffers distress or execution to be levied against his or its goods or effects, makes an arrangement or composition with creditors, enters into liquidation (otherwise than for the purpose of amalgamation or reconstruction), has a receiver appointed for the whole or any part of its undertaking, or if a receiving order in bankruptcy is made against him. When the Company elects to withdraw from the contract in any such circumstances, the Company shall thenceforth cease to have any liability to the Customer thereunder but shall remain entitled to claim from the Customer a due proportion of the contract price in respect of such part of the contract as the Company shall have performed.
19. MISCELLANEOUS
(1) The Customer may not assign its rights or liabilities under a contract without the prior consent in writing of the Company.
(2) Failure by the Company to enforce a term of a contract as soon as it may be enforced shall not prevent the subsequent enforcement of that or any other term of the contract.
(3) The construction, validity and performance of a contract shall be governed by the laws of England.
(4) The English Courts shall have exclusive jurisdiction in any dispute or difference arising between the Company and the Customer in relation to a contract.
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