Terms and Conditions
These Terms & Conditions form a contract in relation to the
provision of warehousing, distribution, data and ordering services,
and other services between Cert Octavian plc ('Cert Octavian')
and the person or company who contracts for the services of
Cert Octavian (the 'Customer'). The Registered Address of Cert
Octavian is Cert Octavian House, St Martins Road, Hoddesdon,
Hertfordshire EN11 0BT. The Company Registered Number is
1974240.
Cert Octavian operate under the standard Conditions of Contract
of the United Kingdom Warehousing Association February 2006
('UKWA'), and the Road Haulage Association Limited Conditions of
Carriage 1998 ('RHA'). Attention is drawn in particular to the
exclusions and limitations of liability contained in those
conditions, as amended below. In the event of any
inconsistency between those conditions and the present Terms &
Conditions, the latter shall prevail.
1. PROVISION OF INFORMATION
Cert Octavian rely upon accurate and timely provision, by the
Customer, of information relating to products, receipts,
despatches, stockholding, orders, delivery profile and HM Revenue
& Customs ('HMRC') documentation. Delivery information
must include accurate postcodes and telephone numbers. All rates
and charges will be subject to an annual review, and will be
subject to inflationary and other increases. Cert Octavian may
require the Customer to submit one month prior to the Annual Review
meeting a profile of business levels for the forthcoming twelve
month period. Cert Octavian reserve the right to review the
rates and charges (and pass onto the Customer additional costs
incurred as a result) if the profile of the business defined by the
information provided varies materially from that originally agreed
and / or experienced in a previous period.
2. TRANSFER OF UNDERTAKINGS
'Directive' means the Acquired Rights Directive (Council
Directive 77/187/EEC as amended by Council Directive 2001/23/EEC)
(as amended from time to time);
'Previous Service Provider' means any person (other than the
Customer) carrying out activities comprising or relating to the
provision of logistics services for the Customer;
'Regulations' means the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (as amended from time to time);
Unless previously notified by the Customer to Cert Octavian in
writing or acknowledged by Cert Octavian to the Customer in
writing, Cert Octavian believe that entering into a contract or
otherwise agreeing or arranging to commence or provide logistics
services under these Terms & Conditions does not amount to a
relevant transfer for the purposes of the Regulations and / or the
Directive and, as such, that no person employed or engaged by
either the Customer or a Previous Service Provider will be or
become employed by Cert Octavian following the commencement of such
a contract or other agreement or arrangement.
Unless otherwise agreed in writing by the Customer and Cert
Octavian, if as a result of the application of the Regulations and
/ or the Directive any contract of employment of any employee of
the Customer or Previous Service Provider does or shall or may have
effect as if originally made between such an employee and Cert
Octavian then:
|
i)
|
Cert Octavian and the Customer shall (as appropriate) notify in
writing and consult with the other [and with the relevant employee
[and (if relevant) their appropriate representatives]] in good
faith regarding the status and employment of any such employee;
|
|
ii)
|
If the parties fail to reach agreement on a course of action
within 14 days following such written notification, Cert Octavian
may terminate the employee's employment immediately;
|
|
iii)
|
the Customer will indemnify Cert Octavian, in respect of all
costs, claims, fines, penalties, liabilities, and expenses of any
nature suffered by or claimed against Cert Octavian arising out of
or in connection with such contract of employment and/or the
termination thereof, including but not limited to claims bought by
any employee, trade union, staff association or by any other
employee representatives (within the meaning the Regulations) or
any other persons.
|
3. ALCOHOL LICENSING AND OTHER LAWS
The Customer warrants that it shall comply in all respects with
the Licensing Act 2003 (as from time to time amended, extended or
re-enacted, and any regulations made under it) and with all other
statutes, statutory instruments, laws, bye-laws, rules, regulations
and all other instruments or requirements having the force of law
within the United Kingdom so far as they are applicable to the
Customer ('Laws') and that it will perform the contract such that
no liability is incurred by Cert Octavian under such Laws.
It is a potential offence to deliver alcohol to an individual
under the age of 18. The Customer warrants that it has in place
procedures to ensure that Cert Octavian are not instructed to make
deliveries of alcohol to individuals under 18 and will indemnify
Cert Octavian, its agents, subcontractors and / or employees
against any losses, claims, costs, fines, penalties, expenses and
liabilities, howsoever caused (unless caused by Cert Octavian's
negligence), arising from such deliveries. Cert Octavian reserves
the right to not deliver or release alcoholic goods where it is
believed that the recipient is under the age of 18.
4. CUSTOMER INSTRUCTIONS
Cert Octavian may rely on any instruction, order, commitment,
notice or request ('Instructions') of any person who is or is
reasonably believed by Cert Octavian to be a person designated or
authorised by the Customer to give such Instructions, whether such
Instructions are oral or in writing, electronic or otherwise. The
Customer authorises Cert Octavian to accept and act upon all
Instructions without taking any further steps to ensure the
authenticity of such Instructions or the authority of the person
giving such Instructions, (notwithstanding that such Instructions
may conflict with or are in any way inconsistent with any other
Instructions received by Cert Octavian from the Customer).
In respect of any Instructions, the following provisions shall
apply:
|
i)
|
The Customer shall be responsible for the accuracy of all
Instructions.
|
|
ii)
|
Instructions given to Cert Octavian shall not take effect unless
actually received by Cert Octavian.
|
|
iii)
|
Instructions shall continue in full force and effect until
cancelled or superseded.
|
|
iv)
|
Cert Octavian may treat any apparent Instructions as new
Instructions unless they are clearly indicated to be confirmations
of earlier Instructions.
|
|
v)
|
The Customer is responsible to assess the measure of security
applicable to Instructions and shall take reasonable care to ensure
that Instructions are secure and that unauthorised access to the
Cert Octavian Online website is prevented.
|
|
vi)
|
Cert Octavian may (but shall be under no duty) at its absolute
discretion refuse to act on any Instruction including, without
limitation, where such Instructions are incomplete or ambiguous or
not given in the form customarily used by the Customer and / or
which are not in writing.
|
|
vii)
|
Cert Octavian may at its absolute discretion and without
incurring any liability whatsoever refuse to implement a Customer
Instruction for any reason and will attempt but shall not be
obliged to notify the Customer of such a refusal.
|
|
viii)
|
Cert Octavian shall be under no obligation to cancel or amend
any Instructions after receipt should the Customer so request,
although Cert Octavian shall use its reasonable endeavours to act
on requests from a Customer for cancellation or amendment of such
Instructions prior to execution.
|
5. RECEIPT OF GOODS
The palletised rate will apply to single product lines received
on standard 1000mm x 1200mm four way entry pallets, stacked to a
height not exceeding 1450mm. Any goods received that do not
meet these criteria will be charged at the loose rate or other
appropriate handling rate.
Cert Octavian will provide the Customer with a Confirmation of
Receipt of Stock. It is the responsibility of the Customer to
ensure that the details contained within this document are correct
as Cert Octavian is unable to accept any financial liability for
the input of incorrect data.
Cert Octavian will only accept goods on behalf of the Customer
if accompanied by valid, appropriate documentation.
Discrepancies will be notified to the Customer as soon as
practicable. The Customer will ensure that all their suppliers or
agents book loads in with the Cert Octavian Goods-In department at
least three working days in advance of the desired delivery
date.
Cert Octavian reserve the right to:
|
i)
|
Refuse delivery or levy a late receipt surcharge, if deliveries
arrive 45 minutes later than the specified booking in time, or fail
to arrive altogether.
|
|
ii)
|
Refuse delivery or levy a shot load surcharge if a load is not
received in good order.
|
|
iii)
|
Charge part cases at the appropriate full case rate.
|
|
iv)
|
Split a case containing more than one product and charge
accordingly.
|
Unless otherwise instructed, Cert Octavian will not open cases
in order to verify the number of bottles and that the description
on the bottle labels corresponds with the accompanying paperwork.
Cert Octavian will endeavour to identify where cases are
"non-original" cases, but are not responsible if any are not
identified. If Cert Octavian identify that the cases are
"non-original" cases, or at the Customer's request, Cert Octavian
will open cases for a charge per case to record and verify that the
description on one of the bottle labels corresponds with the
accompanying paperwork. At the Customer's request and for a further
charge per bottle, Cert Octavian will verify that the label on each
bottle in the case corresponds with the accompanying paperwork.
Cert Octavian cannot and do not check the authenticity of bottle
labels or liquid in bottles received by Cert Octavian, and cannot
and do not check the quality of the contents including liquid,
labels, corks and capsules.
To the extent that the contents of cases have not been verified
by Cert Octavian, Cert Octavian cannot and will not be liable to
the Customer or any other party for any losses however caused, if
at a future date, it is discovered that the contents of the case
are not as described in the delivery documentation or on the
outside of the case.
Cert Octavian will at the request of the Customer and for a
charge per case undertake a "Condition Report". This will involve
the case being retrieved from storage and photographs being taken
and sent to the Customer so that the condition of the labels and
neck levels can be viewed.
Cert Octavian do not accept liability for a deterioration in the
condition of the contents of the case (including liquid, labels,
corks and capsules). Over time the condition of the contents of the
case may deteriorate as a result of the natural ageing process.
Cert Octavian will not accept any liability for any missing
capsules, corks or labels upon receipt checking.
Cert Octavian reserve the right to levy a surcharge for 'high
value receipts' to take account of the higher risk and / or cost of
insurance and / or cost of special handling or storage
arrangements.
For complex loads where it is not possible to check the load
received whilst the haulier is waiting, the delivery note will be
marked-up and signed to evidence this, and if Cert Octavian find
any subsequent discrepancies whilst booking the receipt on, they
will notify the Customer but cannot be held liable for these.
6. STORAGE
Rent will be quoted and charged per week (part weeks will be
treated as a full week) with a working week being Saturday to
Friday. For private Customers on annual invoicing a full year's
rent will be charged in advance. Such Customers are charged on a
private Customer tariff for which no credit is given for rent on
cases removed during an invoice year for the remainder of that
year.
A report detailing the Customer's stock will be produced at the
end of the last working day of each month, or for private
Customer's on annual invoicing, annually. Cert Octavian will
undertake regular location checks and discrepancies will be
reported to the Customer. The Customer or the Customer's authorised
representative, with prior written agreement, will be granted
access in order to undertake physical stock checks once each
year.
7. ORDER PROCESSING
All orders must be received either in writing, by EDI or
facsimile, or via the Cert Octavian Online website by 12 noon (to
be classed as day zero). Cert Octavian will process up to a maximum
number of orders per day, as agreed, in writing, with the
Customer. Orders will not be processed until such time as the
information regarding goods received has been landed onto Cert
Octavian's system. Cert Octavian will use all reasonable endeavours
to fulfil orders within the agreed delivery criteria, subject to
acceptance by the consignee.
All Under Bond orders must state a valid bond address, accurate
sales values and bond number, and will be fulfilled within the
agreed delivery criteria subject to acceptance by the receiving
warehouse.
Where an order has been received via the Cert Octavian Online
website Cert Octavian will email a 'Confirmation of Receipt of
Order' to the 'super user' nominated by the Customer. It is
the responsibility of the Customer to ensure that the details
contained within this document are correct as Cert Octavian are
unable to accept any financial liability for acting upon incorrect
orders. Should the 'super user' fail to receive a Confirmation of
Receipt of Order within one hour, then it is the Customer's
responsibility to advise Cert Octavian as soon as possible. If for
any reason an order is rejected, an email explaining the reason for
rejection will be sent to the 'super user' by Cert Octavian and
such an email will constitute and be accepted by the Customer as a
valid confirmation that the order will not be complied with.
8. COLLECTIONS (from Cert Octavian)
Where appropriate the Customer must ensure that their nominated
carrier authorise Cert Octavian to use the carrier's movement
guarantee number for all underbond collections. Cert Octavian
will agree the date and time for collection with the Customer's
carrier.
Orders requiring collection from the cellar that are received by
12 noon on day zero will be available for collection from Cert
Octavian on day three.
Storage charges will apply up to the time of collection with a
part week treated as a full week. Cert Octavian reserves the
right to charge for collections. Any goods that have not been
collected within three working days of the agreed collection date
will be liable to be re-booked into stock, incurring additional
RH&D and storage costs.
9. HMRC COMPLIANCE
Cert Octavian and the Customer will comply with their respective
relevant HMRC requirements. All orders processed, whether under
bond or duty paid, must conform to all relevant regulations as laid
down by HMRC. Cert Octavian reserve the right to withhold the
processing of orders if regulations are not complied with.
Where applicable it is the responsibility of the Customer to
register with HMRC under the Warehouse keepers and Owners of
Warehoused Goods Regulations 1999 (WOWGR). Failure to register will
render such goods liable to seizure after the initial period (72
hours from receipt).
10. EXPORT ORDERS
Goods required for export must be received and receipted onto
the Cert Octavian system at least 48 hours prior to processing the
order. Orders will be processed subject to compliance by the
Customer with Cert Octavian's standard procedures and
indemnities.
For all movements outside the UK, the Customer shall indemnify
and hold harmless Cert Octavian, its agents and subcontractors
against all losses, claims, costs, expenses and liabilities
howsoever caused. Cert Octavian shall be entitled at its
discretion to require the relevant duty payable to be deposited
with Cert Octavian.
For export orders outside the EU, Cert Octavian's Movement
Guarantee will only be valid to the point of export from the EU,
subject to the goods being transported by Cert Octavian.
11. DUTY DEFERMENT
It is the Customer's responsibility to ensure their deferment
facilities are sufficient to cover any duty liability appertaining
to the movement of their goods. Where goods are liable to
customs duty the Customer shall apply for Customs Freight
Simplified Procedures (CFSP) with HMRC. It is the responsibility of
the Customer to provide the relevant details in order to obtain
authorisation for use of their deferment number.
Cert Octavian's deferment account facilities can only be used if
agreed in writing by an authorised representative of Cert
Octavian.
12. DELIVERIES
The Cert Octavian delivery charges apply to deliveries between 8
am and 6 pm Mondays to Fridays. Cert Octavian reserve the right to
apply an order surcharge for any delivery times specified outside
these hours.
Unless otherwise agreed in writing, Cert Octavian's standard
delivery criteria are that when an order has been received by 12
noon on day zero, delivery will be day three, excluding Highlands /
Borders, offshore deliveries, and certain other difficult
postcodes, details of which can be supplied on request.
For Export deliveries there will be a minimum seven day delivery
period to the UK exit point.
Cert Octavian will always use their reasonable endeavours to
adhere to published delivery days and specified delivery times.
However, Cert Octavian can accept no liability for missed
deliveries and must reserve the right to alter delivery days and
times without notice.
The carrier used for deliveries will be at Cert Octavian's
discretion. The Customer will be notified, as soon as reasonably
practical, of any delivery discrepancies. Where Cert Octavian have
not been at fault redeliveries will be chargeable. In the event of
a delivery vehicle being delayed by more than one hour prior to
unloading at a delivery point, howsoever caused, Cert Octavian
reserves the right to levy a charge. These charges are currently as
follows - first hour £20 per 30 minutes or part thereof; second
hour £25 per 30 minutes or part thereof; third hour £30 per 30
minutes or part thereof; additional hours £40 per 30 minutes or
part thereof.
Cert Octavian reserve the right to levy a surcharge for 'high
value deliveries' to take account of the higher risk and / or cost
of insurance and / or cost of special delivery arrangements. The
Customer is responsible for notifying Cert Octavian of any high
value single consignments where the value of the consignment is in
excess of £250,000 so that Cert Octavian can make appropriate
insurance and security arrangements. Cert Octavian will not be
liable for loss or damages to any single consignment in excess of
£250,000 where the value has not been notified to Cert Octavian in
advance and Cert Octavian have accepted the order for delivery.
Cert Octavian will not be liable for any penalty charges raised by
the consignee or point of delivery on the Customer or on Cert
Octavian, i.e. for early or late delivery, change of booking time,
etc.
13. POINT OF DELIVERY
Drivers will only deliver to the entrance of the premises and
will ensure the delivery is confirmed in their presence. If
it is agreed that goods are to be carried into the premises, then
this is at risk of the consignee and the Customer shall indemnify
Cert Octavian against any loss, damage and / or injury that may
occur and Cert Octavian shall be entitled to levy an additional
charge.
It is the responsibility of the consignee to check the delivery
and sign the delivery documentation which becomes the Proof of
Delivery ('POD'). If the consignee signs the POD without checking
the delivery or if the consignee insists on signing the POD but
with the caveat "unchecked" (or similar wording to the same
effect), that will be at his own risk and Cert Octavian will not be
liable for any shortages or damages. In any event, any
discrepancies should be reported within 48 hours of receipt. If
Cert Octavian is required to leave the consignment at an unattended
delivery point following a specific request from the Customer so
that it is not possible to obtain a signed POD, Cert Octavian
cannot and will not accept any liability for the consignment being
damaged or missing.
14. DELIVERY DOCUMENTATION
Cert Octavian will provide a scanned image of the POD upon
request. A charge may be levied if hardcopy POD's are requested.
POD's will be stored for a maximum of six months. Cert Octavian
cannot guarantee the retrieval of POD's after this six month period
and shall have no liability whatsoever for losses however caused
arising from claims relating to such POD's or the non-return
of.
15. UPLIFTS
The Customer will supply Cert Octavian with written collection
instructions, including a declaration of the value of each case of
wine. Goods will be uplifted as soon as practicable and the
Customer must package them in a secure and suitable manner for
transit. Standard uplifts will be carried out from the threshold of
the property unless otherwise instructed by you, the Customer. Cert
Octavian reserves the right to withdraw or apply additional costs
to an uplift should the Customer fail to provide accurate
details of the uplift. Cert Octavian will undertake a case / pallet
count for the consignment to be collected and will not be
responsible for any product shortages or damages identified at that
time. Furthermore, the driver will not check product descriptions
or case contents against the instructions, i.e. if there are a
number of bottles to be uplifted the driver will only count the
cases that the units are in, not the individual bottles. Cert
Octavian shall have no liability for the condition of the contents,
including for missing / lost / damaged liquid, liquid
levels, labels, corks, and capsules within each case
and packaging until a physical check has been performed at the
cellar. Cert Octavian will not accept liability for loss or damage
caused by incorrect packaging, product descriptions, or incorrect
case contents. Cert Octavian reserve the right to levy a surcharge
for 'high value uplifts' to take account of the higher risk and /
or cost of insurance and / or cost of special uplifts
arrangements.
16. PALLETS
Unless otherwise agreed with the Customer, Cert Octavian do not
recognise or control the movement of GKN pallets, do not operate a
one-for-one pallet exchange on receipt of goods, and do not have
any liability to the Customer for pallets. Cert Octavian reserve
the right to charge the Customer for pallets provided by Cert
Octavian where goods are received loose, or have to be
re-palletised because of poor quality or incompatible pallets, or
to comply with HMRC requirements, or for any other valid reason. On
the delivery of goods, unless otherwise agreed with the Customer,
Cert Octavian operate a one-for-one pallet exchange with the
delivery point (consignee) and Cert Octavian reserve the right to
charge the Customer for pallets not handed over to Cert Octavian as
part of the one-for-one exchange.
17. GOVERNMENT LEGISLATION AND TRANSPORT CHARGES
Cert Octavian reserve the right to pass on any increase in
charges incurred as a result of:
|
i)
|
Changes in taxation imposed by the government on fuel, vehicle
licences, VAT, etc.
|
|
ii)
|
Increases in commercial bulk fuel prices.
|
|
iii)
|
Increases in insurance premiums caused by changing market
conditions.
|
|
iv)
|
The introduction of new (or changes to) employment
legislation.
|
18. 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.
Cert 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 by Cert Octavian (the product lines to be withheld will be at
the discretion of Cert Octavian).
All charges are exclusive of VAT which is payable in addition,
where appropriate, as defined by relevant VAT legislation.
Cert Octavian reserve the right to exercise their statutory
right to claim interest and compensation for debt recovery costs
under the late payment legislation if Cert Octavian are not paid
according to the above payment terms. Furthermore, Cert Octavian
reserve 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 Cert Octavian are overdue.
The Customer gives full authority and agrees that Cert Octavian
may approach any third party in order to undertake credit
references on the Customer at any time.
19. CLAIMS & LIABILITY
Cert 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. Cert Octavian reserves
the right to reject any claim received after this period.
Cert Octavian shall have no liability for claims related to
individual or connected incidents with a value of £30 or less. No
claims or legal proceedings (including any counterclaim) may be
brought against Cert Octavian unless they are issued and served
within nine months of the event giving rise to the claim.
Where a Customer claim is subject to an insurance or other third
party recovery by Cert Octavian, Cert Octavian cannot accept the
claim until agreement has been obtained from the insurer or other
third party responsible.
In no circumstances whatsoever shall Cert 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
or agents or be 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 Cert Octavian have been informed of the possibility of
the Customer incurring the same).
Cert Octavian shall not be liable for any act or omission or
delay or non-performance of any of its obligations caused by events
beyond Cert Octavian's power or control.
The Customer shall indemnify and hold harmless Cert Octavian
against all damages, actions, claims, losses, costs (including all
legal costs), taxes and expenses that are suffered or incurred by
Cert 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
& 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 or incorrect delivery addresses supplied by the
Customer.
|
Cert 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 Cert Octavian Online
website.
Cert Octavian shall not be in breach of this Contract in the
event of failure to make available the Cert Octavian Online website
due to circumstances beyond its control.
20. INSURANCE
Any claim will be at cost value subject to UKWA and RHA and VAT
excluded. Cert Octavian will not under any circumstances
accept debit notes or invoices to its account by way of set-off
against its charges.
The Customers' attention is drawn to Clause 3 of UKWA and Clause
9 of RHA which should be read and understood in full by the
Customer. The key points are that:
|
i)
|
Cert Octavian do not insure the Customers' Goods while stored
with Cert Octavian and the Customer should make arrangements to
cover the Goods against all risks to the full insurable value
thereof (including duties and taxes).
|
|
ii)
|
Cert Octavian do accept liability to the extent that any
Warehouse Loss is directly caused by the neglect or wilful act or
default of Cert Octavian, its employees or sub-contractors up to a
maximum of £100 per tonne.
|
Cert Octavian do accept liability whilst in transit under Cert
Octavian's control for loss, misdelivery or damage up to a maximum
of £1,300 per tonne. Unless otherwise agreed, Cert Octavian and the
Customer will operate a tolerance scheme where Cert Octavian will
have a tolerance level of 0.05% of case throughput (the total of
intake and despatch volumes) for any damages / stock discrepancies
and will not be liable for any claims to the extent that the
damages and / or losses are below this tolerance.
21. MIXED CASES
Cert Octavian accept 'mixed cases' for storage at case rates
where permitted by HMRC.
For duty paid 'mixed cases' received, unless otherwise
instructed, Cert Octavian will not open the cases in order to
verify the contents. 'All Risks' cover will not apply to unchecked
'mixed cases', with any claims being subject to standard UKWA and
RHA conditions.
If the Customer requires Cert Octavian to open a duty paid
'mixed case', and 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, and a charge will be levied.
Where the contents of a 'mixed case' have been checked, the case
will be recorded on the system as a 'mixed case', a photograph
placed on Cert Octavian Online and 'All Risks' cover will apply
(individual products will not be recorded on the system).
22. RIGHT OF LIEN
Sufficient stock must be held in Cert Octavian's warehouse at
all times to cover all outstanding monies. In the event of
failure by the Customer to pay any amount due to Cert Octavian or
to remove any of the goods from the custody or control of Cert
Octavian (notice in accordance with condition 7(I) of UKWA having
been given), Cert Octavian may, at the due time, without prejudice
to their other rights and remedies against the Customer, give
notice in writing of their 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 Cert
Octavian from the Customer.
Where Cert Octavian have been unable to contact the Customer and
the Customer has not paid any invoices due for three years, Cert
Octavian reserve the right to sell the Customer's entire stock
holding (whether Cert Octavian have previously exercised their
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 six years from the date of last contact
with the Customer, after deduction for all expenses (including an
administration charge) and all amounts due to Cert Octavian from
the Customer.
23. REMOVAL OF ENTIRE STOCKS
All monies due to Cert 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 (the product lines to be withheld will be at
the discretion of Cert Octavian). Removal of entire stocks
terminates the contractual relationship in its entirety between the
Customer and Cert Octavian.
24. ASSIGNMENT AND SUBCONTRACTING
Neither party may assign this Agreement without the prior
written consent of the other. Cert Octavian shall be entitled to
subcontract its obligations under this Agreement.
25. CERT 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 Cert Octavian.
Use of the Cert Octavian Online website, the 'Website' is at the
Customer's own risk. Whilst Cert 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. Cert
Octavian does not warrant the availability, accuracy, completeness,
currency or reliability of the content or data on the Website. Cert
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 Cert Octavian Online Super User
Guide. The Customer shall ensure that the security measures within
the Customer's control as set out in the Cert Octavian Online Super
User Guide are adequately and properly maintained.
Cert Octavian reserve all rights to withdraw, amend or cancel
the Website, with or without notice, and Cert Octavian shall not be
contractually bound to offer any service once it has been
withdrawn, amended or cancelled.
Cert Octavian reserve the right to suspend or terminate the
Customer's account if it reasonably appears to Cert Octavian that
the Customer is in breach of any of the published Terms &
Conditions.
All design, text, graphic, code and software on the Website is
the property of Cert Octavian or its licensors. Unless prior
written agreement is obtained from Cert 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 Cert 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 Cert Octavian. All third
party-owned trademarks are acknowledged.
26. ELECTRONIC DATA INTERCHANGE (EDI)
Where the Customer and Cert Octavian agree to exchange
information by traditional EDI or other electronic messages, the
presumption will be that this will be undertaken using Cert
Octavian's standard message formats. Cert 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.
27. CONFIDENTIALITY
All business information disclosed by the Customer or Cert
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.
28. COMMUNICATIONS
All communications and notices concerning this agreement shall
be in writing and shall be delivered to the registered office of
the party concerned.
29. EFFECTIVENESS OF TERMS & CONDITIONS
These Terms & Conditions take effect from 1st May 2011 and
supersede all previous versions that are now null and void.
Receipt of stock into a Cert Octavian warehouse and / or use of
Cert Octavian Online is classed as acceptance of these Terms &
Conditions by the Customer, unless otherwise agreed in writing by
Cert Octavian. Cert Octavian reserve the right to alter these Terms
& Conditions subject to 28 days notice being given to the
Customer.
These Terms & Conditions are the complete and entire
agreement between Cert Octavian and the Customer (the 'Agreement')
and supersede any prior understanding or agreements (whether oral
or written) regarding the subject matter and may only be altered by
a Director of Cert Octavian in writing, or a service level
agreement signed by an authorised representative of Cert
Octavian. Should there be any inconsistency or conflict
between these Terms & Conditions and other published
information or data, then these Terms & Conditions will
supersede any such information.