Terms and Conditions

1. Introduction
1.1 We are Octavian International Limited ("Octavian", "us", "we", "our"), a company registered in England and Wales under number 04185988.
1.2 These are the terms and conditions upon which we do business. Please read them carefully as in certain places they restrict your legal rights, and please contact us if you want to clarify or discuss any of these terms and conditions.
1.3 Octavian may revise or update these terms and conditions at any time without notice to you. The current version of these terms and conditions can be found on our web site, which is located at www.octavianinternational.com

2. Definitions and interpretation In these terms and conditions
2.1 unless the context otherwise requires, the following definitions apply: "Agreement of Sale" has the meaning given to that term in clause 6.2; "Business Day" means Monday to Friday except statutory, public and bank holidays in England and Wales; "Goods" means the electronic gaming machines, gaming hardware, gaming software and other equipment that Octavian sell from time to time; "Octavian Goods" has the meaning given to that term in clause 3.2; "Third Party Goods" has the meaning given to that term in clause 3.2; and "Unpaid Goods" has the meaning given to that term in clause 8.2;
2.2 words importing the singular shall include the plural and vice versa, words importing a gender shall include all genders and words importing persons shall include bodies corporate, unincorporated associations and partnerships;
2.3 any reference to a statute, statutory provision or subordinate legislation is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation;
2.4 references to clauses are references to clauses of these terms and conditions; and
2.5 headings are included for ease of reference only and shall not affect the interpretation or construction of these terms and conditions.

3. Dealings between you and Octavian
3.1 These are the terms and conditions (as revised or updated from time to time in accordance with clause 1.3) upon which we are willing to sell the Goods to you. They will apply to all dealings between you and Octavian to the exclusion of all other terms and conditions (including any terms and conditions which you may purport to apply under any purchase order, confirmation of order or similar document).
3.2 We sell two types of Goods: Goods that are manufactured by third parties ("Third Party Goods") and Goods that are manufactured by us or on our behalf ("Octavian Goods"). These terms and conditions apply to the sale of both types of the Goods.
3.3 No variation to these terms and conditions will be binding unless a director of Octavian, or other authorised Octavian personnel, consents to the variation in writing.

4. Information about the Goods
4.1 All samples, drawings, descriptive matter, specifications and advertising we issue and any descriptions or illustrations contained in our catalogues or on our web site are issued or published for the sole purpose of giving you a general idea of the Goods. Although we make every effort to ensure that information about the Goods is correct, sometimes it may be incomplete, out of date or inaccurate. In particular, some details, such as colour, technical specification, functionality and dimensions, may not be a true representation and subject to change without notice.
4.2 If you wish to rely on a particular piece of information about any of the Goods then you must let us know in writing, providing full details as to the relevant piece of information. If Octavian consents to your request for reliance then we will confirm this to you in writing. If we do not provide written consent that you may rely on a particular piece of information given to you about any of the Goods, any sample, or the suitability of any of the Goods for a particular purpose, you cannot make a claim against us or cancel an order based on such information.

5. Quotations
5.1 All quotations and offers we make to you about the sale of the Goods are subject to these terms and conditions.
5.2 All quotations and offers we make to you are made on an "invitation to treat" basis only. This means that we are not obliged to sell the Goods to you on the terms stated in the quotation or offer until, and only to the extent that, those terms are agreed as part of a binding Agreement of Sale. Please see clause 6.2 for details of how a binding Agreement of Sale is made between you and us. Each offer or quotation we make shall lapse automatically 30 days after it is made.

6. Orders
6.1 If you wish to purchase any of the Goods you must provide us with a purchase order containing at least the description and number of Goods you wish to order.
6.2 If we accept an order from you, we will send you written confirmation of this as soon as reasonably possible, after receipt of your order or, if earlier, at the time we dispatch/make available for collection the ordered Goods to you. It is at the moment we accept your order that an agreement of sale is made between you and us for the sale of the Goods specified in your order (“Agreement of Sale”). Each Agreement of Sale is subject to these terms and conditions to the exclusion of all other terms and conditions (including any terms and conditions which you may purport to apply under any purchase order, confirmation of order or similar document).
6.3 All orders that you place and all confirmations of orders that we give are subject to the provisions of these terms and conditions. If there is any inconsistency between these terms and conditions and any order you place or confirmation we give then these terms and conditions shall prevail.
6.4 You may cancel or modify an order at any time before we accept it. Unless agreed otherwise in writing by Octavian and subject to you paying all our costs incurred up to the date of cancellation, you may not cancel or modify an order that we have accepted.

7. Delivery and collection of the Goods
7.1 As soon as reasonably possible after acceptance of your order we will provide you with details regarding your order, including for example, details of when you order will be dispatched.
7.2 If the Goods you order are in stock then we aim to despatch the Goods to you or make them available for collection within five Business Days after we receive your order or, if later, by the date set out in your order.
7.3 If the Goods you order are not in stock then we will despatch the Goods or make them available for collection once they are in stock.
7.4 We recognise that you may suggest collection/delivery dates in your orders for the Goods. We will try to meet your suggested collection/delivery dates; but we cannot, and do not, guarantee to make the Goods available for collection or to deliver the Goods by any particular date. We accept no liability for any loss or damage you may suffer as a result of our failure to make the Goods available for collection or to deliver the Goods on or by a particular date.
7.5 If you notify us that you want to collect the ordered Goods from our offices then we will let you know when the Goods are ready for collection and you must collect the Goods within seven days of the date on which we notify you that the Goods are ready for collection. We may charge you an administration fee for the collection of the Goods by you. If you fail to collect the Goods within seven days then we may charge you and you will be liable to pay us for all costs we incur in continuing to keep the Goods, in addition we may sell the Goods to another customer without notice to you.
7.6 If you notify us that you want us to deliver the ordered Goods then we will deliver the Goods to the delivery address you specify (which may be the address of the end customer to whom you are reselling the Goods). We may charge you for delivery of the Goods to their end destination.
7.7 You must make all arrangements necessary for you or your end customer to take delivery of the Goods when we deliver them, including providing labour and suitable unloading equipment for the unloading of the delivered Goods. If you or your end customer do not accept delivery of Goods or we are unable to deliver or are delayed in delivering the Goods because of your or your end customer's actions or omissions then we may charge you and you will be liable to pay us for all costs we incur as a result.
7.8 If you are an existing customer and you do not notify us whether the ordered Goods are to be collected or delivered then we may make them available for collection or deliver them to your usual delivery address (as applicable) based upon our previous dealings with you. Otherwise, if you are a new customer, we will contact you to confirm your delivery or collection requirements.
7.9 We may supply the Goods either all on one date or by separate batches on different dates from time to time. Either you or we can, by notice, cancel an Agreement of Sale if we are unable to supply the Goods within 120 days of the date the Agreement of Sale is made and it has not been otherwise agreed by the parties in writing. If this happens neither party can make any claim against the other. If an Agreement of Sale is cancelled and some of the ordered Goods have been supplied then the cancellation will only apply to the Goods that have not been supplied (which in this context does not include the Goods that have been dispatched and are in transit at the time of cancellation).
7.10 If you are collecting the ordered Goods from our offices then risk of loss of or damage to the Goods passes to you on collection of the Goods.
7.11 If we are delivering the ordered Goods to you or your end customer then risk of loss of or damage to the Goods passes to you on delivery of the Goods. Octavian accepts no liability for loss or damage caused to the Goods by the carrier.

8. Title to the Goods
8.1 We own all the Goods that you order from us until we receive from you in cleared funds all monies due to us in relation to the Goods, at which time title to the Goods passes from us to you.
8.2 You must clearly identify the Goods that you have ordered from us but not paid for in full (“Unpaid Goods”) as belonging to us and keep them safe, secure, comprehensively insured against loss and damage and separate from other property. Except as otherwise expressly set out in this clause 8 you must not:
(a) part with possession of the Unpaid Goods;
(b) allow any right to be created over the Unpaid Goods; or
(c) make, nor allow anyone other than us to make, any additions, alterations or modifications to, or remove any part of, any of the Unpaid Goods.
8.3 You may sell Unpaid Goods in the ordinary course of your business on the understanding that the proceeds of sale belong to us.
8.4 We may, by notice, cancel your right to sell Unpaid Goods if you fail to pay us on time for any Agreement of Sale. If:
(a) you are unable or deemed unable or admit inability to pay your debts as they fall due; or
(b) you enter into a composition, compromise, assignment or arrangement with any of your creditors (whether by way of a voluntary arrangement, scheme of arrangement, deed of compromise or otherwise); or
(c) a moratorium is sought or declared in respect of you or any of your indebtedness or an application is made to court for protection from your creditors; or
(d) an administrator, liquidator (compulsory or voluntary other than a liquidator appointed in a solvent winding up for the purposes of amalgamation or reconstruction), provisional liquidator, receiver, administrative receiver, receiver and manager, voluntary arrangement supervisor, compulsory manager or other similar officer is appointed to or in respect of you or the whole or any part of your property, assets or undertaking; or
(e) a petition or application is presented or documents are filed or faxed with a court for the appointment of an administrator, liquidator or receiver to you [provided that if you are contesting the winding-up petition in good faith and with due diligence the notice shall not be treated as having being given until a period of 5 Business Days has expired since the presentation of the petition or application without it having been either discharged or struck out]; or
(f) a meeting is convened, a resolution is passed or notice is given of the intention to appoint an administrator, liquidator or receiver (including an administrative receiver and a receiver and manager) to you; or
(g) an order is made for your winding-up, administration or dissolution; or
(h) possession is taken of the whole or any part of your property, assets or undertaking; or
(i) you cease or threaten to cease to carry on all or a substantial part of your business or operations or sells, transfers or otherwise disposes of the whole or a substantial part of its undertaking or assets, either by a simple transaction or a number of transactions; or
(j) any other analogous step, process or procedure is taken in relation to you in any jurisdiction, or you become subject to the laws relating to insolvency, bankruptcy or liquidation in any jurisdiction, then your right to sell Unpaid Goods will automatically end and we may refuse to supply you with any further Goods.

9. Acceptance of the Goods
9.1 If you or your end customer do not receive all of the Goods or you or your end customer find that any of the Goods do not conform to these terms and conditions or the Agreement of Sale then you must notify us of this fact in writing within 3 Business Days of the date of collection or delivery of the Goods (as applicable). If we do not receive notification from you within this period then you will be deemed to have accepted that: you have or your end customer (as applicable) has received the right quantity of the Goods; the Goods are free from damage; and the Goods conform to these terms and conditions, the Agreement of Sale and your requirements for the Goods as notified to us.
9.2 If within the period specified in clause 9.1 you notify us that you or your end customer have not received all of the Goods you ordered then you must promptly provide us with reasonable evidence supporting your claim. If we accept your claim then we will, at our sole discretion and by way of full and final settlement of the claim either: refund any monies you have paid to us for the unreceived Goods; or dispatch to you or your end customer the unreceived Goods.
9.3 If within the period specified in clause 9.1 you notify us that any of the Goods you or your end customer received were damaged whilst they were at our risk or do not conform to these terms and conditions or the Agreement of Sale then you must promptly return the Goods to us and provide us with reasonable evidence supporting your claim. If we accept your claim then we will, at our sole discretion and by way of full and final settlement of the claim either: refund any monies you have paid to us for the damaged/non-conforming Goods; repair the damaged/non-conforming Goods; or replace them with Goods that conform with these terms and conditions.
9.4 If you wish to return the Goods to us for reasons other than those set out in clauses 9.1 to 9.3 above, then, provided the Goods have been returned to us undamaged, unused, in their original condition and original, sealed and unopened packaging, we may, at our sole discretion, accept their return. The Goods shall remain at your risk until we confirm to you in writing that they conform with this clause 9.4 and that we accept their return. You shall be responsible for all costs (including, without limitation, all transportation and insurance costs) relating to the return of the Goods. If we accept their return then we will refund any monies you have paid to us for the returned Goods less a restocking fee equal to the higher of: fifteen per cent of the price of the Goods; and one hundred pounds sterling. If you have not paid us for the Goods then we may charge you separately for the restocking fee.

10. Goods bought for resale
10.1 If you resell any Good then you must:
(a) not modify, delete or obscure any copyright, trade mark, patent or other proprietary notice which is on the Good, the Good's packaging or the documentation that accompanies the Good;
(b) not use or apply on or in relation to the Good (including as or part of any corporate, trade or business name) any other trade marks, logos or wordings;
(c) pass onto your customers all documentation, including instructions of use, that we supply to you with the Good;
(d) not make any representations, warranties, claims or guarantees to your customers about us or the Good that are false or misleading or inconsistent with those contained in the documentation supplied by us with the Good; and
(e) adhere to any additional terms and conditions that we may notify to you from time to time in order to ensure that you and we comply with the Good manufacturer's requirements.
10.2 You shall indemnify us against all costs, damages, losses and expenses we incur or suffer as a result of your failure to comply with your obligations under clause 10.1.

11. Performance of the Goods
11.1 For each Third Party Good we supply to you we will pass on to you, to the extent that we are able to do so, the benefit of any standard warranty or guarantee that is provided to the end user of the Good by the Good manufacturer.
11.2 In addition, we may offer a separate written warranty or guarantee in respect of a Good we supply to you. If we offer a separate written warranty or guarantee for a Good then details of the warranty/guarantee will be provided with the Good at the time of its despatch/collection
11.3 Save to the extent required by law, Octavian does not warrant to you that each of the Octavian Goods we supply to you under this Agreement of Sale is of satisfactory quality.

12. Price
12.1 The price payable by you for each of the Goods you order will be our current list price for the Good at the date the Good is despatched or made available for collection (as applicable) less any discount (if any) agreed in writing between you and Octavian and confirmed to you in writing from time to time by us. You can obtain a copy of our current list price upon request. Our prices do not include the cost of delivery or our collection administration fee, which we may charge you for separately.
12.2 The prices for the Goods set out in clause 12.1 will apply irrespective of any prices that you may include on any purchase order or similar document.
12.3 Details of any discount or other non-standard pricing structure that we agree with you from time to time shall be treated by you as information of a confidential nature. You must keep this information confidential and not disclose it to any third party.
12.4 All charges set out in these terms and conditions and any Agreement of Sale are exclusive of value added tax. Where applicable, we will add value added tax, duty and/or other sales taxes and/or any customs, import or export duties we are liable to pay on any of the Goods we sell to you to any charges at the current rate at the date we invoice you for the charges.

13. Payment
13.1 If we inform you that we require you to pay:
(a) a non-refundable deposit; or
(b) the full purchase price for the Goods, in advance of the date the Goods are despatched or collected then we may invoice you for, and you must pay, the required amount in cleared funds prior to the despatch/collection date (as applicable).
13.2 Subject to clause 13.1, we will invoice you for the Goods you order on or around the date we make the Goods available for collection or we despatch the Goods (as applicable). If we make available for collection/despatch the Goods in batches on different dates then we will only invoice you for the Goods we make available for collection/despatch.
13.3 We will charge you and you must reimburse us for any duty, value added tax and/or other sales taxes and/or any customs, import or export duties we are liable to pay on any of the Goods we sell to you.
13.4 In respect of each invoice we submit to you, you must pay the total amount set out in the invoice so that we receive in cleared funds a sum equal to the total amount on collection/despatch unless otherwise agreed in writing. You must pay the total amount of the invoice even if you dispute its amount on the understanding that if any dispute is resolved and it is determined that Octavian have invoiced a total that is too great we will rectify our mistake by promptly making an appropriate payment to you. You must notify us of any query you have about an invoice within 7 days of the date of the invoice.
13.5 All payments you make must be in pounds sterling unless our invoice states otherwise.
13.6 You must make all payments due to us without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
13.7 If you fail to pay us on time we may, amongst other things:
(a) charge you interest on the outstanding amount at the rate of 3% above the Barclays Bank plc base rate, accruing on a daily basis until payment is made in full;
(b) refuse to supply you with any further Goods until payment is made in full;
(c) set off any monies we owe you against any monies you owe us.

14. Credit limit
14.1 When we first start trading with you we may, by agreement with you, set up a trading account for you with a credit limit, which we may increase or decrease from time to time.
14.2 If you have a trading account with us then you must keep within your credit limit at all times. If you exceed your credit limit, or if the value of an order would make you exceed it, then we will not supply you with any further Goods until you reduce the outstanding balance sufficiently so that it falls within the scope of your credit limit.

15. Our liability to you
15.1 Nothing in these terms and conditions or any Agreement of Sale shall exclude or limit our liability for: death or personal injury arising from our negligence; fraud or fraudulent misrepresentation; or any other liability that cannot be limited or excluded by law.
15.2 The warranties and conditions stated in these terms and conditions are in lieu of all other conditions, warranties or other terms that might be implied into or incorporated into these terms and conditions or any Agreement of Sale whether by statute, common law or otherwise, all of which are hereby excluded to the extent permitted by law.
15.3 Subject to clause 15.1, we will not be liable to you under any statute or in contract, tort or otherwise for any:
(a) loss of profits, business revenue, business opportunity, contracts, goodwill and/or anticipated savings, whether direct or indirect; and/or
(b) indirect or consequential loss or damage, which arises out of or in relation to these terms and conditions or any Agreement of Sale.
15.4 Subject to clause 15.1, our total aggregate liability to you under or in connection with each Agreement of Sale (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited to the total price payable by you under that Agreement of Sale.
15.5 Subject to clause 15.1, our total aggregate liability to you under or in connection with these terms and conditions (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited in each calendar year to £1,000.

16. Assignment
16.1 You may not assign, dispose of or delegate any of your rights of obligations under these terms and conditions or any Agreement of Sale without our prior written consent.
16.2 Both Octavian and you shall in all cases act as principal in respect of these terms and conditions and each Agreement of Sale and will be responsible and liable for the acts and omissions of our respective employees and sub-contractors. You will also be responsible and liable to Octavian for the acts and omissions of your end customers where those acts and omissions put you in breach of these terms and conditions or any Agreement of Sale.

17. Intellectual Property
17.1 You hereby acknowledge that any proprietary rights used on or in relation to the Goods supplied hereunder, including, but not limited to, any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in Octavian or the manufacturers of the Third Party Goods.
17.2 You hereby acknowledge that it is your sole responsibility to comply with any terms and conditions of licence attaching to any Third Party Goods supplied and delivered by Octavian (including if so required the execution and return of a software licence relating to the Third Party Goods). You are hereby notified that failure to comply with such terms and conditions could result in you being refused a software licence or having the same revoked by the manufacturer of the Third Party Goods. You further agree to indemnify Octavian in respect of any costs, charges or expenses incurred by Octavian as a result of any breach by you of such terms and conditions.

18. Confidentiality
18.1 You shall safeguard and (save as may be required by law) keep confidential all information entrusted to you by Octavian which is not in the public domain and take all reasonable precautions to safeguard Octavian’s confidential information.
18.2 Only those members of staff who need to be aware of confidential information in order for you to fulfil your obligations under these terms and conditions shall be entitled to access to the confidential information.
18.3 All confidential information passed to you by Octavian shall remain the exclusive property of Octavian and you undertake to return such information at the request of Octavian or, at the least, upon termination or expiry of these terms and conditions.
18.4 The communication of any security key or login credentials to third parties is prohibited and will result in immediate withdrawal of the use of the Goods and the possible instigation of further legal proceedings.

19. General
19.1 We will not be liable to you for any breach of our obligations under these terms and conditions or any Agreement of Sale to the extent that the breach is due to circumstances beyond our reasonable control, which shall include, without limitation, wars, acts of terrorism, labour disputes, shortages of materials or labour and problems with our sub-contractors.
19.2 No third party, including, without limitation, your end customers, shall have any rights under or in connection with these terms and conditions or any Agreement of Sale by virtue of the Contracts (Rights of Third Parties) Act 1999.
19.3 If at any time any provision of these terms and conditions or any Agreement of Sale is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision, or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of these terms and conditions or any Agreement of Sale.
19.4 Any failure by either party to enforce at any time any term or condition under these terms and conditions or any Agreement of Sale shall not be considered a waiver of Octavian's or your right thereafter to enforce each and every term and condition of these terms and conditions and any Agreement of Sale.
19.5 The relationship between Octavian and you is that of independent contractor. Neither party is the agent of the other and neither party has any authority to make any contract or impose any obligation on the other party without their express prior written consent.
19.6 These terms and conditions and each Agreement of Sale are governed by and shall be construed in accordance with English law and, except as set out in clause 19.7, Octavian and you hereby submit to the exclusive jurisdiction of the English courts.
19.7 If you fail to pay us on time for any monies due to us under these terms and conditions or any Agreement of Sale then you acknowledge and agree that we may bring a claim against you for non-payment in any jurisdiction in which you or your assets are located.