continued...
PAYMENT TERMS
Unless otherwise agreed in writing, payments must be made in
full, without deduction, set off or counter claim within 30 days
from date of invoice. Octavian reserve the right to refuse the
release of Customer stock pending receipt of cleared funds to
ensure that the Customer's outstanding debt remains below the cost
value of stock held in Octavian.
All charges are exclusive of VAT which is payable in addition,
where appropriate, as defined by relevant VAT legislation.
Octavian reserves the right to exercise its statutory right to
claim interest and compensation for debt recovery costs under the
late payment legislation if Octavian is not paid according to the
above payment terms. Furthermore, Octavian reserves the right to
set off any amount owing to the Customer against any amount owing
from the Customer on any account where the amounts owing to
Octavian are overdue.
The Customer gives full authority and agrees that Octavian may
approach any third party in order to undertake credit references on
the Customer at any time.
CLAIMS & LIABILITY
Octavian will only accept a claim for actual stock damaged or
lost, once shortages have been offset against surplus stock. Claims
must be submitted within 28 days of notification of such damage or
loss. Octavian reserves the right to reject any claim received
after this period. Octavian shall have no liability for claims
related to individual or connected incidents with a value of £20.00
or less.
If a Customer claim is accepted by Octavian, the amount agreed
and invoice received, Octavian will settle within 28 days of the
claim being accepted by Octavian. Where a Customer claim is subject
to an insurance or other third party recovery by Octavian, Octavian
cannot accept the claim until agreement has been obtained from the
insurer or other third party responsible.
In no circumstances whatsoever shall Octavian be liable for
fraudulent activities of the Customer, their employees,
representatives, agents or persons and or parties passing
themselves off as the Customer, their employees or representatives,
agents or liable (in contract, tort (including for negligence and
breach of statutory duty) or otherwise) for any loss (whether
direct or indirect) of profits, goodwill or business opportunity or
for any indirect, special or consequential loss including loss of
profits, savings or revenues (whether or not reasonably foreseeable
and even if Octavian have been informed of the possibility of the
Customer incurring the same).
Octavian shall not be liable for any act or omission or delay or
non-performance of any of its obligations caused by events beyond
Octavian's power or control. The Customer shall indemnify and hold
harmless Octavian against all damages, actions, claims, losses,
costs (including all legal costs), taxes and expenses that are
suffered or incurred by Octavian whether or not foreseeable or
avoidable, which arise directly or indirectly from:
i) any breach or alleged breach by the Customer of these Terms and
Conditions, or
ii) fraudulent activities of, or misuse by the Customer, their
employees, representatives or agents or persons and or parties
passing themselves off as the Customer, their employees
representatives or agents or
iii) incomplete, incorrect or wrong delivery addresses supplied by
the Customer. Octavian shall not be responsible for the
compatibility of software, equipment or systems supplied to the
Customer by third parties and used in conjunction with the Octavian
Online website.
Octavian shall not be in breach of this Contract in the event of
failure to make available the Octavian Online website due to
circumstances beyond its control.
INSURANCE
Octavian agree to purchase extended insurance coverage for its
liability for Customer's goods whilst in their custody or control
for 'All Risks' of accidental physical loss and or damage, subject
to standard policy terms and conditions. Specifically excluded
(inter alia) from this insurance are loss and or damage and or
expenses:
i) attributable to wilful misconduct of, or any act of dishonesty
committed or connived at by, the Customer or any associated company
or employee thereof;
ii) arising from deliberate act or omission of the Customer or any
associated company or employee thereof, and which could reasonably
have been expected by the Customer having regard to the nature and
circumstances of such act or omission;
iii) cause by depreciation other than as a result of damage forming
the subject of a valid claim hereunder;
iv) caused by inherent defect, wear and tear, nature of the
subject-matter insured, gradual deterioration, atmospheric or
climatic conditions, or the action of light;
v) arising from loss of profit or indirect or consequential loss of
any kind;
vi) directly or indirectly caused or contributed to by or arising
from: a. ionising radiation or contamination by radioactivity from
any nuclear fuel or from any nuclear waste from the combustion of
nuclear fuel, or b. the radioactive, toxic, explosive or other
hazardous properties of any explosive nuclear assembly, nuclear
component or radioactive material;
vii) which is a consequence or war, invasion, act of foreign enemy,
hostilities (whether war is declared or not), civil war,
revolution, rebellion, insurrection, military or usurped power, or
civil strife arising therefrom, or any hostile act by or against a
belligerent power;
viii) caused by strikers, locked-out workmen, or persons taking
part in labour disturbances, riots or civil commotion;.
ix) which is due to confiscation, requisition, detention or
destruction by or by order of any government, public or local
authority;
x) due to lack of or a defect in the title of the Customer or any
past, present or future owner or purported owner;
xi) directly or indirectly caused by any terrorist, terrorism or
any person acting from a political motive;
xii) directly caused by pressure waves from aircraft or other
aerial devices travelling at sonic or supersonic speeds. Octavian's
liability shall be limited to the replacement or market value of
the goods, whichever shall be the lower.
Octavian is not aware of the actual value of Customer's goods
and gives no warranty that its insurance cover will be sufficient
in the event of a catastrophic loss. This 'All Risks' extension is
intended to cover Customer's for loss of stock incurred during 'day
to day' business activities and not a major loss caused by some
catastrophic occurrence. In the event of claims exceeding the total
sum insured by Octavian, a Customer's claim will be settled out of
the total amount recovered from Octavian's insurer pro-rata in the
proportion that the value of that Customer's claim bears to the
total value of all Customer's claims.
'All Risks' cover is conditional upon the Customer not breaching
Octavian's payment terms. In the event of a breach of Octavian's
payment terms 'All Risks' cover will automatically cease without
any notice to the Customer and Octavian's liability will revert to
standard UKWA terms with an uplifted liability of £10,500 per tonne
and without reinstatement unless communicated in writing to the
Customer. In no way can the absence of Octavian to previously
enforce this right or advise the Customer of the withdrawal of the
'All Risks' insurance be construed or implied that Octavian has
previously or currently waived its rights to withdraw 'All Risks'
insurance as per this clause.
MIXED CASES
Octavian accepts 'mixed cases' for storage at case rates where
permitted by HMRC.
For duty paid 'mixed cases' received, unless otherwise
instructed, Octavian will not open the cases in order to verify the
contents. If the Customer requires Octavian to open a duty paid
'mixed case' to check that the number of bottles and that the
description on the bottle labels corresponds with the accompanying
paperwork, a charge will be levied.
For all under-bond 'mixed cases' received, they will be opened
and checked for the number of bottles and that the description on
the bottle labels corresponds with the accompanying paperwork, at a
cost per bottle.
Where the contents of a 'mixed case' have been checked, the case
will be recorded on the system as a 'mixed case' (individual
products will not recorded on the system). 'All Risks' cover will
not apply to 'mixed cases', with any claims being subject to
standard UKWA and RHA conditions.
The Customer can request 'All Risks' Insurance to apply to a
'mixed case' where its contents have been checked and, if agreed,
Octavian will record individual products within a 'mixed case' on
the system separately and each individual product will be charged
at a case rental rate.
RIGHT OF LIEN
Sufficient stock must be held in Octavian's cellars at all times
to cover all outstanding monies. In the event of failure by the
Customer to pay any amount due to Octavian or to remove any of the
goods from the custody or control of Octavian (notice in accordance
with condition 7(I) of UKWA having been given), Octavian may, at
the due time, without prejudice to its other rights and remedies
against the Customer, give notice in writing of its intention to
sell or otherwise dispose of the goods. The proceeds of the sale or
disposal shall be remitted to the Customer after deduction for all
expenses (including an administration charge) and all amounts due
to Octavian from the Customer.
Where Octavian have been unable to contact the Customer and the
Customer has not paid any invoices due for 3 years, Octavian
reserve the right to sell the Customers' entire stock holding
(whether Octavian has previously exercised its right of lien and
sold stock or not). The proceeds of the sale or disposal shall be
held for the Customer with no interest accruing for a minimum
period of 6 years from the date of last contact with the Customer,
after deduction for all expenses (including an administration
charge) and all amounts due to Octavian from the Customer.
REMOVAL OF ENTIRE STOCKS
All monies due to Octavian by the Customer must be paid and
cleared in full prior to the final release of goods with sufficient
reclaimable value to cover any amounts owing by the Customer and
suspended duty and VAT. Removal of entire stocks terminates the
contractual relationship in its entirety between the Customer and
Octavian.
ASSIGNMENT AND SUBCONTRACTING
Neither party may assign this Agreement without the prior
written consent of the other. Octavian shall be entitled to
subcontract its obligations under this Agreement.
OCTAVIAN ONLINE CONDITIONS OF USE
The Customer shall not do or cause or permit anything to be done
that may infringe, damage or endanger any intellectual property
right of Octavian. Use of the Octavian Online website 'Website' is
at the Customer's own risk. Whilst Octavian will take all
reasonable steps to ensure the information contained on the Website
is as accurate as possible, no warranty of any kind is given
regarding the Website, its availability and/or any data provided.
Octavian does not warrant the availability, accuracy, completeness,
currency or reliability of the content or data on the Website.
Octavian disclaims and excludes (to the extent permitted by
applicable law) all warranties and conditions (including implied
warranties and conditions) of satisfactory quality, fitness for a
particular purpose and non-infringement and those arising by
statute or otherwise in law or during a course of dealing or usage
of trade.
The Customer agrees to comply with and obey all of the
requirements as set out in the Octavian Online Super User Guide.
The Customer shall ensure that the security measures within the
Customer's control as set out in the Octavian Online Super User
Guide are adequately and properly maintained.
Octavian reserve all rights to withdraw, amend or cancel the
Website, with or without notice, and Octavian shall not be
contractually bound to offer any service once it has been
withdrawn, amended or cancelled.
Octavian reserves the right to suspend or terminate the
Customer's account if it reasonably appears to Octavian that the
Customer is in breach of any of the published Terms and
Conditions.
All Website design, text, graphic, code and software on the
Website is the property of Octavian or its licensors. Unless prior
written agreement is obtained from Octavian, no Website data or
content found, other than the Customer's stock data, may be
reproduced, republished, distributed, posted, sold, transferred,
linked to or modified. Use of the Website should not be construed
as granting by, implication, estoppel or otherwise, any licence or
right to use any of the trade marks without Octavian's prior
written permission. All intellectual property rights (including,
but not limited to, patent, copyright, database rights, registered
design, trade mark, trade name, know-how or industrial or
intellectual property rights) and goodwill in and relating to the
Website (including all components developed and produced for the
Website including any up-dates, format, art direction, web design
and content) shall be owned by Octavian. All third party owned
trademarks are acknowledged.
ELECTRONIC DATA INTERCHANGE (EDI)
Where the Customer and Octavian agree to exchange information by
traditional EDI or other electronic messages, the presumption will
be that this will be undertaken using Octavian's standard message
formats. Octavian may (but will not be obliged to) agree to use
different message formats, in which case the Customer will be
charged a development cost for their set-up together with an
on-going annual maintenance charge.
CONFIDENTIALITY
All business information disclosed by the Customer or Octavian
to each other is confidential, and shall not be disclosed by either
party, other than to employees, agents or sub-contractors of each,
who reasonably require to know such information for the performance
of their duties. This clause does not apply to information already
in the public domain, or which comes into the public domain (other
than through a breach of this clause), information which the other
party is required by Law to disclose, information where the party
to whom the information relates expressly approves its disclosure,
or information required to be disclosed in connection with any
claim or legal proceedings in relation to these Terms &
Conditions.
COMMUNICATIONS
All communications and notices concerning this agreement shall
be in writing and shall be delivered to the registered office of
the party concerned.
EFFECTIVENESS OF TERMS & CONDITIONS
These Terms and Conditions take effect from 1st May 2007 and
supersede all previous versions that are now null and void.
Receipt of stock into an Octavian cellar and or use of Octavian
Online is classed as acceptance of these Terms and Conditions by
the Customer, unless otherwise agreed in writing by Octavian.
Octavian reserves the right to alter these Terms and Conditions
subject to 28 days notice being given to the Customer.
These Terms & Conditions are the complete and entire
agreement between Octavian and the Customer and supersede any prior
understanding or agreements (whether oral or written) regarding the
subject matter and may only be altered by a Director of Octavian in
writing, or a Service Level Agreement signed by an authorised
representative of Octavian. Should there be inconsistency or
conflict between these Terms & Conditions and other published
information or data, then these Terms & Conditions will
supersede any such information.
For Octavian Vaults customers the Terms & Conditions issued
in May 2007 are amended as follows:
INSURANCE - OCTAVIAN VAULTS CUSTOMERS EXTENSION
For Octavian Vaults Customers only, subject to the Customer
complying with their obligations under this section, Cert Octavian
agrees to purchase insurance cover designed to indemnify Octavian
Vaults Customers' stock up to its 'Declared Value' subject to the
same standard policy terms and conditions and specific exclusions
already incorporated into the existing Terms & Conditions.
In order that Cert Octavian can effect this cover Customers must
declare in writing the value of their stock to Cert Octavian on
opening an Octavian Vaults account and thereafter at least
annually, and must also notify Cert Octavian if there is any
increase in the value of the stock that the Customer wishes to be
covered.
Cert Octavian understands that many Customers may not have the
mechanisms in place for valuing their stock and therefore Cert
Octavian will, in this instance, offer to help them by using, on
the Customer's behalf, an independent industry recognised body to
value their stock. This body is currently The London International
Vintners Exchange (Liv-ex), which is a leading trading and
information platform for fine wine professionals. Liv-ex calculates
the values of wines using a rolling best offer price generated from
merchant lists collected from a wide range of UK and European
suppliers. All values reflect the in-bond price (ie ex duty and
VAT). Information on Liv-ex can be found by visiting
www.liv-ex.com.
Cert Octavian will inform the Customer of the values applied to
their stock by Liv-ex and these will be the Declared Value unless
Cert Octavian is notified in writing of a different value by the
Customer, provided that such different value is reasonable and a
fair estimate of the value. Where Liv-ex are unable to value a case
of wine (and the Customer does not provide in writing a reasonable
and fair estimate of the value), the original landing value, where
known, will be used. If no value is known, or the stated landing
value is less that £200 it will be given a notional value of £200.
Because of the difficulty of valuing mixed cases, all mixed cases
will be valued at £200 unless otherwise notified by the
customer.
It is the Customers' responsibility to ensure that the Declared
Values are reasonable and that Cert Octavian are notified in
writing of any changes to the Declared Values and of any increase
in the value of the Customers' wine for whatever reason.
Cert Octavian accepts no liability whatsoever for the accuracy
of the Declared Values or for any act or default of Liv-ex.
CERTIFICATE OF PRISTINE STORAGE
For Octavian Vaults Customers only, a Certificate of Pristine
Storage will be issued when stock leaves Corsham Cellars, which
will record the first receipt date into the cellars, thus
evidencing that the stock has been stored at Corsham Cellars since
that date. This Certificate is not a guarantee of the condition of
the stock (which can be affected by inherent defects on first
receipt to Corsham Cellars).
Issued by Cert Octavian 28th December 2007.