TACHÉ COMPANY NV
GENERAL CONSIGNMENT CONDITIONS EFFECTIVE May
16th 2023
PART
A – GENERAL
1.
The
following general consignment conditions (the “Consignment Conditions”)
are applicable on every consignment of goods to the intended buyer of the goods
located in Belgium (the “Buyer”) by Taché Company NV (“TCNV”)
acting on its own behalf or as agent on behalf of Taché Securities BV as
the case may be, the Buyer acknowledging that it has already agreed to the use
of these Consignment Conditions in respect of every such consignment. Subject
to Condition 17 below, these Consignment Conditions
(together with the terms and conditions included in the consignment invoice in
respect of the consigned goods (the “Memorandum”)) supersede any prior
written communications and/or agreements and understandings between the parties
in respect of the consignment of the goods specified in the relevant Memorandum
and shall apply in preference to and supersede any and all terms and conditions
in respect of any order placed by the Buyer and any other terms and conditions
submitted to or by the Buyer, including in respect of any diamonds already on
consignment by TCNV to the Buyer as at the effective date stated at the top of
the first page of these Consignment Conditions. Where the context so requires,
“Consignment Conditions” shall be construed to include the terms and conditions
included in the Memorandum.
2.
Without
limitation to any other terms of these Consignment Conditions, the Buyer
accepts that until any consignment of goods pursuant to a Memorandum is terminated
as referred to in Condition 20, the delivered goods are held by
the Buyer on consignment from TCNV (acting on its own behalf or as agent on
behalf of Taché Securities BV, as notified to the Buyer from
time to time), and the relevant goods are owned by and
title thereto shall remain with TCNV
or Taché Securities BV as applicable.
3.
Subject to Condition 22, the
transfer to the Buyer of the risks of loss of or damage to the goods is made as
soon as the goods are delivered to the Buyer. The value of the goods specified
in the Memorandum is the value which the Buyer is liable for to TCNV or Taché Securities BV (as applicable) in the event of any loss of or damage to the
goods.
4. The Buyer must at all times following delivery of the goods to it (i) keep the goods consigned to the Buyer by TCNV acting as agent on behalf of Taché Securities BV separately identifiable from any other goods consigned to the Buyer by TCNV (acting on its own behalf) or by any other person other than TCNV; (ii) ensure that the goods consigned to the Buyer by TCNV acting on its own behalf or as agent on behalf of Taché Securities BV remain identifiable and traceable as the property of TCNV or Taché Securities BV (as the case may be) pursuant to the serial identification number included on the delivery parcel; and (iii) not remove, deface or obscure any identifying number or packaging on or relating to the consigned goods.
5.
The
Buyer agrees and acknowledges that under no circumstances may any goods
consigned to it, whether under an Agent Consignment or Principal Consignment,
be further consigned or transferred by the Buyer to any other third party. For
the avoidance of doubt this shall not prevent the Buyer from holding the
consigned goods through an authorised representative or agent of the Buyer (provided that the Buyer remains
fully liable and responsible for the consigned goods in accordance with these
Consignment Conditions notwithstanding such holding) or from having the consigned goods
valued by a professional valuer.
6.
The
Buyer must not cause any damage to the consigned goods, nor any modification
whatsoever to the consigned goods. The Buyer must
have a market standard all risks insurance policy covering all loss of or
damage to the goods.
8.
The
Buyer must carefully inspect the supplied goods upon receipt and notify TCNV in
writing of any alleged defects or problems of non-conformity of the supplied
goods with the description of the goods in the relevant Memorandum or the terms
of the warranty in Condition 7 above at the latest within 3 (three)
business days after receipt of the supplied goods. If the Buyer fails to do so,
the Buyer shall be deemed to accept that the supplied goods are without defects
and are in conformity with the description in the relevant Memorandum and the
terms of the warranty in Condition 7 above.
9.
The
Buyer agrees that TCNV’s only obligation in respect of any goods (a) being in
breach of Condition 7 or (b) being defective or not being in
conformity with the description of such goods in the Memorandum shall be to
replace the such goods with goods as described in the relevant Memorandum if
available, but only after the Buyer has returned the defective goods to TCNV, subject
to compliance with Condition 11 below. If the Buyer fails to return the defective goods within 1 (one) week
of the notification of such goods being defective, the relevant goods will be
deemed to have been accepted by the Buyer notwithstanding the original
notification for the price specified on the Memorandum (subject to any
modification to the price specified on the Memorandum agreed between the Buyer
and TCNV prior to the original notification of alleged defects by the Buyer).
The
Buyer agrees that its recourse in respect of the warranty in Condition 7 and/or any defect or
non-conformity as set out in this Condition 9 represents the total liability of
TCNV with respect to the goods and sale and delivery of the goods, regardless
of whether said liability is based in contract, warranty, negligence,
indemnity, strict liability or otherwise, and the Buyer shall have no further
recourse against TCNV, Taché Securities BV or any other person in respect
thereof.
10.
To
the extent permitted by law, neither TCNV
nor Taché Securities BV nor any of their affiliates shall be liable (except
in respect of TCNV in case of fraud, gross negligence (zware
fout/faute grave) or
wilful misconduct (opzet/intention)) to
the Buyer, any successors in interest or any beneficiary or assignee of these Consignment
Conditions for any consequential, incidental, indirect, special or punitive
damages arising out of the goods, these Consignment Conditions or any breach
thereof, or any defect in, or failure of, or malfunction of the goods, whether
based upon loss of use, lost business opportunity, lost profits or revenue,
interest, lost goodwill, work stoppage, impairment of other products, loss by
reason of shutdown or non-operation, increased expenses of operation, cost of
purchase of replacement power or claims of the Buyer or customers of the Buyer
for service interruption or any claim of whatever nature from the Buyer or the Buyer’s
customers and whether or not such loss or damage is based on contract,
warranty, negligence, indemnity, strict liability or otherwise.
Payment
of the final purchase price payment in respect of any diamonds by the Buyer to
TCNV pursuant to a final invoice (“Factuur”)
shall extinguish any right which the Buyer might otherwise have had in respect
of the purchased diamonds under these Consignment Conditions against TCNV, Taché Securities BV or any other party, whether
pursuant to Condition 7 or otherwise.
11.
Returns
made by the Buyer pursuant to Condition 9 will only be accepted if TCNV’s specialists confirm that the goods
conform to the goods originally shipped, without any damage (other than such
damage specified by the Buyer where relevant), modification or intervention of
any kind.
12.
These
Consignment Conditions and the Memorandum in respect of the goods, as
applicable, and any non-contractual obligations arising out of or in connection
with the Consignment Conditions and the Memorandum shall be governed by and
construed in accordance with Belgian law. The Parties agree to submit to the
exclusive jurisdiction of the courts of Antwerp, Belgium in respect of any
dispute arising out of or in connection with these Consignment Conditions, the Memorandum
and the consignment of the goods. However, at TCNV’s option, proceedings may be
brought by the courts and according to the laws of the place where the Buyer
has its registered office and/or, also at TCNV’s option, by the courts and
according to the laws of the place where the goods were delivered.
13.
The
Buyer will be responsible for covering all costs arising from any dispute,
including but not limited to legal costs and court fees (subject
to any legally binding rule or court decision providing otherwise). Failure by the Buyer to acquaint
itself with these Consignment Conditions in the native language of the
jurisdiction of the Buyer does not exempt the Buyer of their full
implementation.
15.
Each
of TCNV and the Buyer acknowledges that (i) it has
all information as referred to in article 5.16 of the Belgian Civil Code; (ii)
it has reviewed and agreed to these Consignment Conditions on an arm’s length
basis with the other party; and (iii) these Consignment Conditions reflect a
fair and appropriate balance between the rights and obligations of the parties.
16.
Each
of TCNV and the Buyer expressly waives, to the fullest extent permitted by law,
any right it may have to renegotiate these Consignment Conditions or the
Memorandum in respect of the consignment of goods solely on the basis of
article 5.74 of the Belgian Civil Code.
Each of
TCNV and the Buyer expressly waives, to the fullest extent permitted by law,
any right it may have to terminate these Consignment Conditions or the
Memorandum in respect of the consignment of goods in the case of an
anticipatory breach by the other party.
PART B
– CONSIGNMENT OF DIAMONDS BY TACHÉ COMPANY NV AS PRINCIPAL OR AS AGENT ON
BEHALF OF TACHÉ SECURITIES BV
17.
A
consignment of goods pursuant to a Memorandum may be effected by TCNV acting (i) on its own behalf as principal and title holder of the relevant
goods (“Principal Consignment”); or (ii) as agent on behalf of Taché
Securities BV as title holder of the relevant goods (“Agent
Consignment”). Any sale of goods pursuant to a Factuur
will be effected by TCNV acting as principal and title holder of the goods
specified in the relevant Factuur, in accordance with
its terms and conditions. Taché Securities BV retains the right to appoint at
any time and from time to time any other person as its agent in relation to the
consignment of any diamonds to which Taché Securities S.A
R.L holds ownership
title.
18.
The
relevant Memorandum will specify in respect of each consignment of goods
whether it is a Principal Consignment or an Agent Consignment. In the event
that a consignment of goods includes goods some of which are consigned as a
Principal Consignment and some of which are consigned as an Agent Consignment,
the relevant Memorandum will specify which goods are being consigned as a
Principal Consignment and which goods are being consigned as an Agent
Consignment.
19.
A
consignment of goods originally made as a Principal Consignment may
subsequently change to being an Agent Consignment in respect of all or part of
such goods as a result of a transfer of title to the relevant goods from TCNV
to Taché Securities BV whilst the goods are on consignment with the Buyer. In each such case TCNV will send the
Buyer an updated Memorandum via email confirming in respect of which goods on
consignment to the Buyer that a transfer of title from TCNV to Taché Securities
BV has taken place.
20.
The
Buyer agrees and acknowledges that any goods specified in a Memorandum as being
consigned to the Buyer under an Agent Consignment are pledged, charged and/or
held to the order of GLAS Trust Corporation Limited in its capacity as Security
Trustee.
21.
The
Buyer irrevocably confirms that it does not have and will not claim, exercise
or enforce any right of set-off, retention, ownership, security or proprietary
interest, counterclaim or similar right in respect of any goods consigned under
a Memorandum (whether under an Agent Consignment or Principal Consignment) and
waives any and all grounds under applicable law for any such claims.
22.
These
Consignment Conditions shall apply until such time as the goods referred to in
the relevant Memorandum have either been returned to and accepted by TCNV or
the Buyer has been issued with a Factuur in respect of such goods (as the
case may be), at which point these Consignment Conditions shall terminate. For
the avoidance of doubt and in accordance with the terms of such Factuur, goods sent pursuant to a Memorandum are only
deemed to be sold upon (and title to the relevant goods remains
with TCNV or Taché Securities BV as applicable until) full payment
of the amount specified in the Factuur issued by TCNV
in respect of the relevant goods
as well as any invoiced interest and any
accrued fees. Prior to this, (i) TCNV retains the
right to request the goods to be shipped back to it at any time and the Buyer shall comply with
such request (to the extent permitted by law); and (ii) in the event of the
insolvency of the Buyer, the Buyer shall forthwith use all reasonable
endeavours to return the goods to TCNV. Should the Buyer fail to return the
goods when requested by TCNV, TCNV reserves the right to invoice the goods to
the Buyer at a price 20% higher than the value of the goods specified under the
Memorandum (to the extent permitted by law).
These Consignment Conditions are available in English at: https://www.groupetache.com/terms-conditions/ .
Deze
Consignatievoorwaarden zijn beschikbaar in het Engels op: https://www.groupetache.com/terms-conditions/ .
Les
présentes Conditions de Consignation sont disponibles en anglais à l'adresse
suivante: https://www.groupetache.com/terms-conditions/ .