Terms and Conditions of Sale – Version updated May 2019
IMPORTANT – PLEASE READ CAREFULLY – ALL ORDERS ACCEPTED BY 4NG ARE SUBJECT TO THE TERMS AND CONDITIONS OF SALE SET OUT BELOW – (VERSION UPDATED MAY 2019)
All orders for products and services accepted by 4NG Limited (“4NG”) are subject to these terms and conditions of sale. No other terms will apply to the supply of products and services by 4NG unless agreed in writing by a Director of 4NG or expressly stated otherwise in these terms and conditions of sale.
All descriptions of the products and services contained on the 4NG website or otherwise communicated to any purchaser of such products or services (the “Customer”) are approximate only and shall not form any part of the contract between 4NG and the Customer. 4NG shall not be liable to the Customer for any errors or omissions on the 4NG website, the 4NG catalogue or other product advertisement. The advertising of products and services on the 4NG website is not an offer capable of acceptance; it merely constitutes an invitation by 4NG for the Customer to make an offer to purchase products and services. 4NG’ acceptance of the Customer’s order will take place when 4NG confirms pricing and delivery dates to the Customer in writing, at which point a contract will come into existence between 4NG and the Customer.
These terms and conditions of sale do not apply to software licence or software support and maintenance transactions, to which separate terms and conditions of sale apply.
4NG is a business-to-business supplier. The 4NG website is intended for use by business customers and not by private individuals acting as consumers (“Consumers”). Notwithstanding the foregoing, nothing in these terms and conditions of sale shall affect the statutory rights of a Customer who deals as a consumer.
The Customer’s particular attention is required for clause 11, which sets out certain limitations of 4NG’ liability.
The prices of the products and services are as provided on a 4NG quotation. 4NG reserves the right to change prices without prior notice at any time. Customer is informed that prices and products in 4NG catalogue are subject to change.
The price of an ordered product or service will be as set out on a 4NG quotation at the time of order acceptance by 4NG, except for products or services ordered for delivery at a future specified date (“forward orders”). The price for forward orders may be varied by 4NG after the date of order acceptance by written notice to the Customer.
All prices exclude VAT, which 4NG will add at the rate applicable at the date of order acceptance.
4NG reserves the right to decline to trade with any company or person. 4NG may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by 4NG. Further, 4NG may cancel orders which have been accepted by giving written notice of such cancellation to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by 4NG. If 4NG rejects or cancels an order for which payment has been taken, it will refund the amount to the Customer as soon as reasonably practicable.
4NG executes orders to the Customer’s requirements, but may provide substitute products where requested by the Customer, or where the product has been superseded by the latest version. To the extent that orders cannot be fulfilled completely from stock, the unfulfilled balance will (at the Customer’s option) either be put on back order to be fulfilled when 4NG next has available stock or be cancelled and refunded to the Customer.
The Customer must submit orders using the 4NG stock numbers and the priced units used in the 4NG hard copy catalogue, and must specify which delivery option is required. Any confirmation of a previous order by the Customer must be marked ‘CONFIRMATION ONLY’ or otherwise clearly identified as a confirmation to avoid duplication.
Subject to any cancellation, substitution or non-fulfilment of Customer’s orders in accordance with clause 3 (Ordering), 4NG will deliver the products specified in the Customer’s order. 4NG may use third party delivery agents to deliver products to Customers.
The Customer’s delivery options, and the prices for them, are as set out on a 4NG quotation.
Delivery prices apply per order, irrespective of the number of products ordered. Delivery will be made to the Customer’s usual business address, unless otherwise agreed in writing.
4NG will aim to deliver products in accordance with the times and dates for delivery quoted by 4NG’ employees (the ‘Quoted Delivery Times’), but Quoted Delivery Times are approximate only and 4NG shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence.
If any delivery has not been made by the Quoted Delivery Time, then subject to the Customer notifying 4NG of such delay, 4NG will endeavour to ascertain if the product has been delivered and will inform the Customer of the status of the delivery or the new expected delivery time. 4NG may also, at its discretion, refund the total delivery charge to the Customer. If a revised delivery time is not acceptable 4NG may also, at its discretion, offer an alternative delivery option. These are the Customer’s exclusive remedies for late delivery.
5 Inspection, Delivery Delays and Non-Delivery
The Customer must inspect the products as soon as is reasonably possible after delivery or collection. The Customer shall, within 10 days of the date of delivery or collection or, in the case of sub-clause iv below, the Quoted Delivery Time or any updated estimated date for delivery, give notice to 4NG in detail of:
- Any defect in the product that is apparent on reasonable examination. In this case 4NG shall, at 4NG’s discretion, replace the products or refund the purchase price. In any event the Customer must refuse parcels delivered to it in a damaged condition;
- Any shortfall in products delivered. In this case 4NG shall, at its discretion, deliver the undelivered products or refund the price of the undelivered products;
- Any delivery of products not in accordance with the order. In this case 4NG shall, at 4NG’s discretion, replace the products or refund the purchase price; or
- Any non-delivery of the products (in which case the time limit is within 10 days of the estimated despatch date). In this case 4NG shall deliver the undelivered products or refund the price of the undelivered products.
If the Customer fails to give any such notice, the products shall be conclusively presumed to be, in all respects, in accordance with the order and free from apparent defects, and the Customer shall be deemed to have accepted the products accordingly. 4NG’ record of the products despatched (including the quantity) shall be conclusive evidence of the products received by the Customer, unless proved otherwise by the Customer.
The remedies set out above are the Customer’s exclusive remedies for non-delivery or short delivery of products, or for apparent defects in the products or delivery of products not in accordance with the order. 4NG shall not be liable for any losses, consequential or otherwise, or for costs (including legal costs), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, damages, claims, demands, proceedings, judgments or otherwise arising from these circumstances.
If 4NG has not granted credit to the Customer, payment terms are cash with order.
Credit terms (subject to satisfactory references and at 4NG’s absolute discretion) are available. If credit has been granted, on acceptance of a Customer’s order, 4NG will issue that Customer with an invoice. Such invoice will be sent by email in PDF format, unless otherwise agreed between 4NG and the Customer. The Customer shall pay the price of the product or service by 30 days following the date the products are despatched. All payments must be made without any set-off, deduction or counterclaim.
If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy:
- all sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date, and
- 4NG may apply a compensation charge as an estimate of administrative and other wasted costs incurred by 4NG to the Customer of £40 for outstanding sums up to £999.99; £70 for outstanding sums between £1,000 and £9,999.99; and £100 for outstanding sums of £10,000 or more; and
- 4NG may also charge the Customer interest from the due date until payment is made in full (both before and after any judgement) on the amount unpaid at a rate which is 8 per cent per annum above the Bank of England base rate as set at 31 December for the period 1 January to 30 June inclusive in the following year and as set at 30 June for the period 1 July to 31 December inclusive, compounded monthly.
7 Risk and Ownership
In the case of products to be delivered to the Customer’s property, risk of loss of or damage to the products shall pass to the Customer on delivery, unless the Customer wrongfully fails to take delivery of the products, in which case such risk shall pass to the Customer at the time when 4NG has attempted to deliver the products. In the case of products which the Customer orders collects from 4NG premises or employees, risk of damage or loss to the products shall pass to the Customer at the time of collection.
Ownership of any product supplied shall not pass to the Customer until full payment of the purchase price of the products and of all other amounts owing to 4NG has been made (in cash or cleared funds). If the Customer is late in paying any sum to 4NG, then 4NG shall be entitled to the immediate return of all products where ownership has not passed to the Customer. The Customer authorises 4NG and its agents to recover any such products in such circumstance, and to enter any premises of the Customer for that purpose.
Demand for or recovery of the products by 4NG shall not of itself discharge either the Customer’s liability to pay the whole of the price and take delivery of the products or 4NG’s right to sue for the whole of the price.
8 Product and Availability Information
4NG reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, or to assist product availability, and such changes may take place during the life of any 4NG catalogue. The most up to date information on the availability and design of the products 4NG supplies is available on the 4NG website.
Unless otherwise confirmed in writing, nothing on the 4NG website or in any 4NG catalogue is to be taken as a representation of the source of origin, manufacture, or production of the products or any part of them.
9 Warranties and Remedies
4NG warrants that no product purchased from 4NG is materially defective.
In the event of any such product being materially defective, and subject to the provisions of clause 5 (Inspection, Delivery, Delays and Non-Delivery) surrounding defects apparent on delivery, 4NG will (at its option) replace or repair the product or refund the purchase price.
4NG warrants that any service purchased from 4NG as referred to in clause 12 (Services) will be provided using reasonable care and skill. If any such service falls short of this standard, 4NG will, at its option, either re-provide the service or supply to the Customer free of charge a substitute product in place of the defectively serviced product.
These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of 4NG.
The remedies set out in this clause 9 shall be the Customer’s sole remedies for any breach of warranty and in respect of the supply or non-supply of products and/or services.
The availability of the remedies set out in this clause 9 is subject to:
- A claim being made in writing to 4NG, prior to the return of any defective product, and within 12 months of the original date of despatch or date of service, or such other periods as may be indicated by 4NG for specific products or services from time to time in writing; and
- The Customer returning or disposing of the relevant products, or making them available for collection by 4NG, in accordance with 4NG’s instructions and suitably packaged. In particular, for any returns, the Customer must obtain a returns number from 4NG and quote this on all paperwork, and state the original invoice number in respect of the products and the nature of any claimed defect.
Where the Customer returns defective products otherwise than in accordance with these provisions, 4NG may refuse such products and return them to the Customer at the cost of the Customer.
Any products which are replaced by 4NG shall become the property of 4NG. Title to replacement products shall pass to the Customer in accordance with the provisions of clause 7 (Risk and Ownership), and the period of the replacement product’s warranty shall be the unexpired period of the defective product’s warranty.
The Customer shall have no remedy in respect of any untrue statement made to it upon which it relied in ordering products and/or services (unless such untrue statement was made fraudulently) other than any remedy it may have set out expressly in these terms and conditions of sale.
Save as expressly provided in these terms and conditions of sale, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of products and/or services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill).
Except as required by law, 4NG will not be liable to the Customer for any loss, damage or liability of any kind whatsoever which arises out of the breach of implied warranties, terms or conditions (statutory or otherwise) or breach of any other duty of any kind imposed on 4NG by operation of law. The Customer acknowledges that it is responsible for ensuring that the products and services it orders are fit for the purposes for which it intends to use them.
10 Export Control and Limitations of Use Ordering
Certain products sold by 4NG are subject to export control regulations of the United Kingdom, the United States of America, the European Union and other countries (“Export Laws”). The Customer shall comply with such Export Laws and obtain any licence or permit required to transfer, export, re-export or import the products.
The Customer shall not, directly or indirectly, sell, permit to be sold, dispose of, export, re-export or otherwise provide products to any country or entity under sanction or embargo administered by the United Kingdom, the United States of America, the European Union or other country.
The Customer certifies that products purchased from 4NG will not be used, sold or incorporated into products used directly or indirectly in the design, development, production or use of chemical, biological or nuclear weapons, delivery vehicles and systems of the same or in the development of any weapons of mass destruction.
Products sold by 4NG are not recommended or authorised for use in life support, surgical implantation, nuclear or aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.
4NG shall not be under any liability for damage, losses (whether direct, indirect or consequential), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information (including through the 4NG technical helpline) whether or not due to its negligence or that of its employees, agents or sub-contractors.
4NG shall not be liable for economic loss, punitive damages, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, all as may result from, or be connected with: (i) any express or implied terms of the contract between 4NG and the Customer, or of any order accepted by 4NG; (ii) any duty of any kind imposed on 4NG by law arising out of or in relation to the contract between 4NG and the Customer or order; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these terms and conditions of sale.
If, not withstanding any other provisions in these terms and conditions of sale including without limitation clauses 9 (Warranties and Remedies), 10 (Limitations of Use) and 11 (Liability), any liability attaches to 4NG, 4NG’s liability to the Customer arising out of or in connection with these terms and conditions of sale or any order whether in contract, tort or otherwise in respect of one or more of (i) any express or implied terms of the contract between 4NG and the Customer, or of any order accepted by 4NG; (ii) any duty of any kind imposed on 4NG by law arising out of or in relation to the contract between 4NG and the Customer or the order; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these terms and conditions of sale shall be limited in the aggregate to £100,000 or the total value of the order, whichever is greater.
Nothing in these terms and conditions of sale (including without limitation this clause 11) shall exclude or limit the liability of 4NG for death or personal injury caused by the negligence of 4NG or its employees, agents or sub-contractors, or for fraud or anything else which cannot by law be limited or excluded.
4NG offers services in respect of products. These services include software updates and any other services that the parties agree. 4NG may quote a turnaround time target for these services, but 4NG shall be under no liability if it fails to comply with such target. The product must be free from physical and electrical damage and from modifications (other than modifications detailed in the literature supplied with the product). The special conditions which apply to software updates are:
- Software Update: 4NG will install the latest version of software. 4NG will functionally check the unit to ensure software acceptance.
13 Force Majeure
A force majeure event is any event beyond the reasonable control of 4NG (including but not limited to strikes, traffic congestion, the downtime of any external line, or 4NG’s inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If 4NG is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then 4NG shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than fourteen days, 4NG may cancel the affected order or cancel the whole or any part of these terms and conditions of sale, without any liability to the Customer.
14 Intellectual Property Right
The Customer acknowledges that 4NG and its licensors own the intellectual property rights in the 4NG website, the 4NG catalogues, the catalogue content and the stock numbers, and that their whole or partial reproduction without 4NG’s prior written consent is prohibited.
4NG does not warrant or give any assurance to the Customer that any products supplied do not infringe the intellectual property rights of any third party.
The Customer shall (and shall procure that persons associated with it or other persons who are providing goods or services in connection with these Terms and Conditions shall) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption, including, but not limited to, the Bribery Act 2010 (the Relevant Requirements) and shall:
- not (directly or indirectly) induce any employee, agent or subcontractor of 4NG to make any concession to or confer any benefit on the Supplier, refrain or withhold from doing any act, in return for any gift, money, or other inducement;
- not do or omit to do any act that will cause or lead 4NG to be in breach of any of the Relevant Requirements; and
- promptly report to 4NG any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with these Terms and Conditions.
The Customer is informed that:
- 4NG employees are not permitted to accept gifts of more than token value, loans, excessive entertainment or other substantial favours from any company or individual that does business with 4NG or seeks to do so;
- 4NG employees are not permitted to solicit gifts or other favours from any company or individual that does business with 4NG, or seeks to do so; and
- entertainment of 4NG employees is acceptable only if it has a justifiable business purpose. It should be of a reasonable nature and such that 4NG’s employees, agents or contractors, can reciprocate.
Financial restrictions on gifts and entertainment are contained in 4NG’s Anti-Bribery Policy and further details are available on request.
Any breach of this clause 15 shall be a material breach of these terms and conditions which is incapable of remedy.
16 Data Protection and Customer Information
17 Law and Jurisdiction
The contract between 4NG and the Customer based on these terms and conditions of sale as applicable to each Customer order shall be governed by and interpreted in accordance with English Law and the Customer submits to the non-exclusive jurisdiction of the English courts, but 4NG may enforce the contract in any court of competent jurisdiction.
Customers who are Consumers may submit any disputes with 4NG for resolution to the European Commission Online Dispute Resolution platform: https://webgate.ec.europa.eu/odr/.
If any part of these terms and conditions of sale is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then it is the parties’ express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question shall be interpreted or construed to give it full effect.
No express term of these terms and conditions nor any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
Registered office: 4NG Limited, Unit 2, The Village, Guards Avenue, Caterham on the Hill, Surrey, CR3 5XL,
Tel: +44 (0)844 884 5296.
Registered No. 10676596.
VAT Registration No. GB264588465.