MPC Data Terms and Conditions for the Supply of Goods

1 Definitions

Customer - The person who accepts a quotation of MPC Data for the Goods or whose order for the Goods is accepted by MPC Data.
Manufacturer - The manufacturer(s) or the manufacturer's regional distributor of the Goods.
Goods - The goods (including any instalment of the goods or any parts for them) which MPC Data is to supply in accordance with these Conditions, Goods includes Hardware and or Software.
MPC Data – MPC Data Limited, County Gate, County Way, Trowbridge, Wiltshire ,BA14 7FJ
United Kingdom
Conditions - The standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and MPC Data.
Contract - The contract for the purchase and sale of the Goods
Software - Any Software which MPC Data is to supply in accordance with these Conditions.
Writing - Includes electronic data transfer (including but not limited to e-mail), cable, facsimile transmission and comparable means of communication.
Published Data - Data in relation to the Goods published in any form including on the Internet or Intranet.

2 Quotations, Orders and Acceptance

a)   MPC Data shall sell and the Customer shall purchase the Goods in accordance with any quotation of MPC Data which is accepted by the Customer, or any order of the Customer which is accepted by MPC Data, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
b)   These Conditions together with the price, quantity and delivery details stated in MPC Data's invoice and/or acknowledgement constitute the entire agreement between MPC Data and the Customer.
c)   These Conditions may not be varied unless so agreed in Writing by a duly authorised employee of the Customer and MPC Data.
d)   Orders can be accepted by telephone only if an official order number is quoted by the Customer. If a telephone order is confirmed in Writing the Customer must mark such written order with any confirmation reference given by MPC Data when the order was accepted on the telephone. Otherwise MPC Data cannot accept responsibility for any duplication of delivery that may occur and the Customer shall be bound to pay for each delivery.
e)   Quotations are valid for 30 days from day of issue only.
f)   MPC Data reserves the right to sub-contract its obligations under the Contract.
g)   MPC Data’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by MPC Data in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
h)   Any advice or recommendation given by MPC Data or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by MPC Data is followed or acted upon entirely at the Customer’s own risk, and accordingly MPC Data shall not be liable for any such advice or recommendation which is not so confirmed. The provisions of clauses 7 and 16 shall apply to any advice or recommendation given in Writing.
i)   Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by MPC Data shall be subject to correction without any liability on the part of MPC Data.
j)   All specifications drawings and particulars of weights, dimensions, capacity or other details provided by MPC Data are intended to give a general idea of the Goods but will not form part of the Contract unless otherwise agreed in Writing. If MPC Data’s description of the Goods varies from the Manufacturer’s description the Manufacturer’s description shall take precedence. The Manufacturer’s description is available from MPC Data on request in Writing.
k)   The Customer shall be responsible to MPC Data for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving MPC Data any necessary information relating to the Goods within a sufficient time to enable MPC Data to perform the Contract in accordance with its terms.
l)   No order submitted by the Customer shall be deemed to be accepted by MPC Data unless and until confirmed in Writing by MPC Data or by delivery of the Goods.
m)   MPC Data reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory requirements or, where the Goods are to be supplied to MPC Data’s specification which do not adversely affect their quality or performance to any material degree or as a result of any change in the Manufacturer’s specification of the Goods.
n)   Neither party shall without the prior written consent of the other disclose or use any trade secrets or other instruments of a confidential nature of the other except as properly required for performance of the Contract or as required by law.

3 Price

a) The price of the Goods is exclusive of cost of packing, delivery and local purchase tax. Packaging and delivery will be charged in accordance with MPC Data's standard rates at the date of supply. Local purchase tax will be charged on the total invoice value including without limitation charges for packing and delivery at the rate(s) applicable on the date of supply if explicitly shown on the quotation..
b) MPC Data reserves the right at any time prior to delivery of the Goods to adjust the price in proportion to any increase of costs to MPC Data between the date of the Contract and the date of delivery including but not limited to any increase as a result of default of the Customer, rescheduling costs, the cancellation of any part of an order, non-adherence to agreed call-off or scheduled delivery arrangements and/or any increase in the costs to it of materials, labour, transport taxes or services, any currency fluctuation or any other matter beyond the control of MPC Data.

4 Delivery

a)   Any time or date given by MPC Data for delivery is given, and is intended, as an estimate only and MPC Data shall not be liable for failure to deliver within the time quoted.
b)   Delivery of the Goods shall be made by the Customer collecting the Goods at MPC Data’s premises at any time after MPC Data has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by MPC Data, by MPC Data delivering the Goods to the agreed place.
c)   The Goods may be delivered in advance of the estimated delivery date and MPC Data shall be entitled to make partial deliveries or deliveries by instalments and these Conditions shall apply to each such instalment or partial delivery. Each instalment shall constitute a separate contract and the failure by MPC Data to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
d)   In the event of the Customer failing to take delivery of the Goods or failing to give MPC Data adequate delivery instructions at the time stated for delivery, MPC Data may arrange for storage of the Goods so delivered at the risk and cost of the Customer (such cost to include the cost of insurance) or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
e)   Risk of damage to or loss of the Goods shall pass to the Customer in the case of Goods to be delivered at MPC Data’s premises, at the time when MPC Data notifies the Customer that the Goods are available for collection or in the case of Goods to be delivered otherwise than at MPC Data’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when MPC Data has tendered delivery of the Goods.
f)   No claim for damage in transit, shortage of delivery or loss of the Goods will be entertained unless the Customer shall have given to MPC Data written notice of such damage, shortage or loss with reasonable particulars thereof within fourteen days of receipt of the Goods or in the case of total loss within seven days of receipt of the invoice or other notification of despatch. MPC Data’s liability, if any, shall be limited to replacing or repairing such Goods or refunding the price and it shall be a condition precedent to any such liability that the Customer shall if so requested have returned the damaged Goods to MPC Data within fourteen days of request.
g)   Subject to sub-clause (f) above if MPC Data fails to deliver the Goods (or any instalment) for any reason other than any cause beyond MPC Data’s reasonable control or the Customer’s fault, and MPC Data is accordingly liable to the Customer, MPC Data’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
h)   The Goods will be packed to MPC Data’s normal specification in non-returnable packaging.

5 Payment

a)   Liability for payment shall arise on delivery of the Goods to the Customer or such person as the Customer may direct unless the Customer wrongfully fails to take delivery of the Goods, in which event MPC Data shall be entitled to invoice the Customer for the price at any time after MPC Data has tendered delivery of the Goods and payment in full (without taking into account any deduction or claim for set off or counterclaim) shall be due on or before the 30th day from the date of the invoice (‘due date’). If the Customer fails to pay the price on the due date then all outstanding invoices rendered by MPC Data to the Customer under any contract shall become immediately payable.
b)   MPC Data shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
c)   MPC Data may in its unfettered judgement withdraw the credit terms described in sub-clause (a) hereof and/or any other credit terms that may have been agreed in Writing between MPC Data and the Customer and substitute either cash on delivery terms whether for the Goods already delivered or otherwise or terms whereby, in the case of partial delivery of an order already made, the Customer shall pay all sums outstanding on the said partial delivery or deliveries and make immediate advance payment in respect of the remainder of the total order.
d)   If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to MPC Data, MPC Data shall be entitled to:
(i)   cancel the Contract or suspend any further deliveries to the Customer;
(ii)   appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and MPC Data or any Group Company) as MPC Data may think fit (notwithstanding any purported appropriation by the Customer); and
(iii)   charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 6 per cent per annum above HSBC PLC’s base rate from time to time, until payment in full is made.

6 Transfer of Property

a)   Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until MPC Data has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by MPC Data to the Customer for which payment is then due.
b)   Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as MPC Data’s fiduciary agent and bailee but shall be entitled to resell or use the Goods in the ordinary course of its business.
c)   Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), MPC Data shall be entitled at any time to require the Customer to deliver up the Goods to MPC Data and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
d)   During such time as the property in the Goods remains in MPC Data, the Customer shall store or otherwise keep the same in such a way as to clearly indicate at all times that the said property remains in MPC Data and shall not remove, obscure or delete any labels or marks placed on the Goods which may enable the Goods to be identified as MPC Data’s and shall grant MPC Data access to any of its premises for the purpose of inspecting the Goods.
e)   If, while the Goods are in the possession of the Customer yet the property in the Goods remains in MPC Data, the Goods become removable constituents or components of other goods, MPC Data shall at its discretion, remove its Goods (if they can be removed without damaging the goods) or become the owner of those goods to the extent that the Customer is indebted to MPC Data and accordingly sub-clauses (a) to (d) hereof shall in so far as it is possible apply to such goods and if MPC Data takes possession of such in accordance with sub-clause (c) hereof it shall have the right to sell such goods provided that it accounts to the Customer for any proceeds of sale which exceed the cost of the Goods, repossession, storage and sale.

7 Warranty

a)   In the ordinary course of its business MPC Data is a reseller which purchases the Goods from the Manufacturer and makes no alterations whatsoever thereto before sale to the Customer. In so far as it is practicable MPC Data maintains the integrity of and sells the Goods in the Manufacturer's packaging. In all cases, the Customer has knowledge of the origin of the Goods it orders and all orders are placed in that knowledge and at the specific request of the Customer.
b)   In selecting and ordering the Goods the Customer recognises that it is using its own skill and judgement and contracts with MPC Data on the basis that MPC Data makes no representation(s) as to the fitness for any particular purpose of the Goods unless specifically agreed in advance in Writing by MPC Data. Without prejudice to the generality of the foregoing the Customer understands that the Goods have not been designed by the Manufacturer for use in life support and/or life monitoring systems and/or in devices or articles intended for surgical implant into the body (‘Prohibited Use’). Goods supplied as complete systems will carry approved marks where such approval has been obtained by the Manufacturer
c)   No Prohibited Use of the Goods shall be made by the Customer without the prior authority of MPC Data in Writing. Where the Customer or any third party supplied by it makes any Prohibited Use of the Goods without MPC Data's prior authority in Writing the Customer shall indemnify and keep indemnified MPC Data from and against all loss and damage or liability whether criminal or civil suffered and legal costs and fees incurred due to such Prohibited Use.
d)   Where the Customer itself supplies a third party with the Goods supplied to it by MPC Data the Customer shall itself stipulate that no Prohibited Use is to be made of the Goods without the Customer’s authority in Writing. The Customer shall not give such prior written authority without first obtaining MPC Data’s prior authority in Writing so to do. MPC Data has not independently verified the accuracy of the information supplied by the Manufacturer nor has it performed any independent assessment of the Goods or information supplied. The Customer irrevocably acknowledges and accepts that such information (whether oral or in writing) shall not be guaranteed or warranted as to its accuracy by MPC Data nor shall it be deemed to be a representation which induced the Customer to enter into the Contract.
e)   Where the Customer wishes to rely on any provision contained in sub-clauses 7 (f) (g) (h) or (j) it shall be a condition that:
(i)   MPC Data is notified in Writing within 7 days of discovery of any defect by the Customer and in any event not later than three months from the delivery date and if the Customer does not notify MPC Data accordingly the Customer shall not be entitled to reject the Goods and MPC Data shall have no liability for such defect or failure and the Customer shall be liable to pay the price as if the Goods had been delivered in accordance with the Contract;
(ii)   the defective Goods are returned to MPC Data, with its prior approval, properly packed and accompanied by a letter giving full details of the Customer's original order number, the return authorisation number, the date of purchase and the reason why the Goods are believed to be defective. Transportation charges shall be prepaid by the Customer and any items incorporated into the Goods by MPC Data must be removed prior to return.
(iii)   examination by MPC Data of such Goods shall disclose to its satisfaction that such defects exist and have not been caused by fair wear and tear, wilful damage, abnormal working conditions, failure to follow MPC Data’s instructions (whether oral or in Writing) mis-use, neglect, improper installation, improper repair, alteration or accident;
(iv)   MPC Data shall be under no liability under the warranties in this clause (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date;
(v)   MPC Data shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer.
f)   MPC Data warrants that it will so far as it is able so to do give the Customer the benefit of any express guarantee or warranty by the Manufacturer of the Goods (subject always to the terms, conditions and limitations of any such guarantee or warranty) and of any other rights which MPC Data has against the Manufacturer. The Customer’s remedies in respect of any claim that the Goods are defective or not in accordance with the Contract or any express description or representation or in respect of any condition or warranty implied by law or any other claim in respect of the Goods or any workmanship in relation thereto (whether or not involving negligence on the part of MPC Data) shall in all cases be limited to enforcement of the above mentioned liabilities of the Manufacturer and MPC Data shall not in any circumstances be liable for damages, compensation, costs, expenses, losses or other liabilities whether direct or consequential and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law.
g)   MPC Data warrants to the Customer that all advice given by MPC Data to the Customer in Writing will be accurate in all material respects. The sole liability of MPC Data in respect of any breach of this warranty (except for death or personal injury arising from the MPC Data’s negligence) shall be to replace the Goods or issue a credit note for the price of the Goods in respect of which the advice was given. Any information supplied by MPC Data that the Goods are millennium compliant will be based upon information supplied by the Manufacturer for which MPC Data cannot accept liability, subject to sub-clause (e).
h)   MPC Data gives no warranty in respect of the future availability of identical goods already sold to the Customer.
i)   These warranties are not assignable and accordingly MPC Data will not accept warranty returns directly or indirectly from the Customer's own customers or from the users of the Goods. Nothing in this clause shall have the effect of creating any privity of contract between MPC Data and the Customer’s own customers or the users of the Goods
j)   Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8 Force Majure

MPC Data shall not be under any liability of whatsoever kind for failure to perform or delay in performance in whole or in part of its obligations under the Contract due to causes beyond the control of either of MPC Data or of MPC Data's suppliers, including, but not limited to, acts of God, acts of the Customer or a third party, war, sabotage, insurrection, government regulations, embargo’s, strikes, labour disputes, illness, flood, fire or tempest causing delay in delivery to MPC Data or MPC Data’s suppliers or shortage of any goods or materials. In any such event MPC Data may, without liability, cancel or vary the terms of the Contract including, but not limited to, extending the time for performing the Contract for a period of time at least equal to the time lost by reason of such event.
9   Cancellation and Returned Goods
a)   Orders for the Goods not normally stocked by MPC Data and which are procured by MPC Data to satisfy the Customer’s requirements are non-cancellable, non-returnable and the agreed delivery date for those Goods cannot be altered by the Customer.
b)   Except under the warranties contained in clause 7 hereof, no returns may be made without the previous consent of MPC Data in Writing and such Goods must be returned to MPC Data in their original condition and suitably packaged at the Customer’s risk and expense.
c)   If MPC Data agrees to accept cancellation of an order or part thereof MPC Data reserves the right to charge the Customer a cancellation fee of 20% of the total order price provided always that if the Goods where purchased by the Customer exclusively for the Contract a cancellation fee of 100% of the total order price will be payable.
d)   MPC Data shall be entitled to cancel the Contract without penalty or payment of damages if it is unable to purchase the Goods from the Manufacturer for whatever reason (save as a result of its default) including but not limited to termination of any agency, distribution or franchise agreement made between the Manufacturer and MPC Data or the Manufacturer’s right to manufacture the Goods being terminated. Prior to terminating the Contract MPC Data will use its reasonable endeavours to source the Goods or goods of the same or materially similar specification from a third party.

10 Patent Rights

a)   The sale of the Goods by MPC Data and the publication of any information or technical data relating thereto does not imply freedom from patent, copyright, registered design or other industrial or intellectual property rights in respect of any particular application of the Goods.
b)   If the Goods are to be manufactured or any process is to be applied to the Goods by MPC Data in accordance with a specification submitted by the Customer, the Customer shall indemnify MPC Data against all loss, damages, costs and expenses awarded against or incurred by MPC Data in connection with or paid or agreed to be paid by MPC Data in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from MPC Data’s use of the Customer’s specification.
c)   Copyright to any Software whether on its own or in conjunction with other Goods shall remain vested in the copyright owner and the Customer shall not reproduce or adapt such Software in whole or in part without the prior agreement of the copyright owner.

11 Breach and Termination

a) If any of the Customer’s obligations to MPC Data are not fulfilled or if the Customer’s financial condition at any time does not, in MPC Data's unfettered judgement, justify continuance of the Contract on the terms of payment specified, MPC Data may, without prejudice to any other rights it may have, cancel any outstanding order or suspend any deliveries or manufacture of any of the Goods unless the Customer makes such payment for the Goods ordered as MPC Data may require.
b) If the Customer commits any breach of the terms and conditions of the Contract or suffers distress or execution or becomes insolvent or commits an act of bankruptcy or has a receiver or an administrative receiver or an administrator appointed to the whole or any part of its assets or if an order shall be made or a resolution passed for winding up the Customer unless such order or resolution is part of a scheme of reconstruction of the Customer or is unable to pay it’s debts as they fall due or an encumbrancer takes possession of any of the property or assets of the Customer, MPC Data may without prejudice to any rights which may have been accrued or which may accrue to it under these Conditions or otherwise, terminate the Contract summarily by notice in Writing.

12 Intellectual Property Rights

(a)   Without prejudice to clause 12 if any claim is made against the Customer, in respect of the Goods supplied that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Customer, MPC Data shall indemnify the Customer against all loss, damages, costs and expenses awarded against or incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim, provided that:
(i)   MPC Data is given full control of any proceedings or negotiations in connection with any such claim;
(ii)   the Customer shall give MPC Data all reasonable assistance for the purposes of any such proceedings or negotiations;
(iii)   except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of MPC Data (which shall not be unreasonably withheld);
(b)   The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavors to do);
(c)   MPC Data shall be entitled to the benefit of, and the Customer shall accordingly account to MPC Data for, all damages and costs (if any) awarded in favour of the Customer which are payable by, or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
(d)   Without prejudice to any duty of the Customer at common law, MPC Data shall be entitled to require the Customer to take such steps as MPC Data may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which MPC Data is liable to indemnify the Customer under this clause.

13 Notices

Any notice to be given hereunder shall be in Writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its last known principal place of business and shall be deemed to have been served, if sent by post, 2 working days after posting.

14 Documents

MPC Data will supply one invoice and one packing note for each consignment of the Goods notwithstanding that the consignment may comprise more than one package unless specified by MPC Data in Writing.

15 Liability

a)   These Conditions expressly set out MPC Data’s entire liability in respect of the Goods and any representation made in Writing in relation to the Goods. MPC Data’s liability under these Conditions shall be in lieu of and to the exclusion of all other warranties, conditions, terms and liabilities express or implied statutory or otherwise save for death or personal injury caused by MPC Data’s negligence. Save as expressly provided in these Conditions MPC Data shall not be under any liability whether in contract, tort (including negligence) misrepresentation or otherwise, in respect of defects in the Goods, failure to correspond to specification, or sample, advice or for any damage or loss resulting from such defects, failure or advice.
b)   In no event shall any breach of contract on the part of MPC Data or misrepresentation or tort (including negligence) or failure of any kind on the part of MPC Data or that of its employees, agents or sub-contractors give rise to any liability for loss of revenue or any consequential loss, economic loss of other loss of turnover, profits, business or goodwill.
c)   EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MPC DATA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES, OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MPC DATA, ITS SUPPLIERS, AGENTS, OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY

16 Waiver

Failure by MPC Data to enforce at any time or for any period any one or more of the Conditions shall not be a waiver of them or of the right at any time subsequently to enforce all of the Conditions.

17 Applicable Law

MPC Data’s quotations and the Contract between MPC Data and the Customer shall be governed by the laws of England and Wales and the Customer hereby irrevocably submits to the jurisdiction of their courts.
Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time.

18 Severance and Headings

Where any Condition is held to be wholly or partially invalid or unenforceable, then such Condition (or the invalid or unenforceable part thereof) shall be treated as severable and the remaining Conditions and the remaining part of that Condition (if any) shall be unaffected by such invalidity or un-enforceability. Headings are for convenience only and shall not affect the construction of the Conditions.

19 Copyright

The party to whom this document is addressed may copy the same for the purpose of enabling it to consider the proposal. Disclosure to any third party is, however, expressly forbidden.
This document contains information which is proprietary to MPC Data.

20 Trade Marks

All trade marks are hereby acknowledged.