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 order of goods submitted (by email or other usual
method of communication between the parties) from an authorised person of the intended
buyer of the goods located in Italy (the “Buyer”) to Taché Company NV (“TCNV”)
(acting on its own behalf or as agent (mandatario) on behalf of Taché
Securities BV as the case may be) and every consignment of
goods to the Buyer by TCNV (acting on its own behalf or as agent (mandatario)
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 19 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.
An
authorised person of the Buyer submitting the order for the goods to TCNV
(acting on its own behalf or as agent (mandatario) on behalf of Taché
Securities BV as the case may be) shall expressly accept
the Consignment Conditions which have been delivered to the Buyer in advance
and are at any time available on the following website: [Terms Conditions
]. An order submitted by the Buyer (by email
or other usual method of communication between the parties) shall constitute a
proposal to enter into a consignment agreement with TCNV (acting on its own
behalf or as agent (mandatario) on behalf of Taché Securities BV as
the case may be) pursuant to the Consignment Conditions. The delivery of the
goods from TCNV (acting on its own behalf or as agent (mandatario) on
behalf of Taché Securities BV as the case may be) constitutes
the acceptance to enter into a consignment agreement with the Buyer. In case
TCNV (acting on its own behalf or as agent (mandatario) on behalf of Taché
Securities BV as the case may be) sends (at its own
expense) for the Buyer’s evaluation one or more goods without a specific order
from the Buyer for those goods, the acceptance from the Buyer of the delivery
constitutes the acceptance of the Consignment Conditions.
3.
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 22, the delivered goods are held by
the Buyer on consignment from TCNV (acting on its own behalf or as agent (mandatario)
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.
4.
Subject to Condition 25, 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 selected warehouse indicated by the Buyer (or to any other
location (i) based on the Buyer's instructions or (ii) any previous agreement
between the parties). 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.
5.
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 (mandatario) 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 (mandatario) 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.
6.
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 (mandatario)
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.
7.
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.
9.
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 8 above at the latest within 3 (three) business days after receipt of
the supplied goods as specified in any relevant Memorandum. 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 8 above.
10.
The
Buyer agrees that TCNV’s only obligation in respect of any goods (a) being in
breach of Condition 8 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 12 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 8 and/or any defect or
non-conformity as set out in this Condition 10 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.
11.
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 gross negligence (colpa grave) or wilful misconduct (dolo))
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 8 or otherwise.
12.
Returns
made by the Buyer pursuant to Condition 10 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.
14.
With
the submission of an order or the acceptance of a delivery (in case no order
has been made) by the Buyer, as the case may be, the Buyer accepts to 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.
16.
With
the submission of an order of goods (by email or other usual method of
communication between the parties) from an authorised person of the Buyer to
TCNV (acting on its own behalf or as agent (mandatario) on behalf of Taché
Securities BV as the case may be) or the acceptance of a
delivery (in case no order has been made), the Buyer accepts all the terms and
conditions under the Consignment Conditions and in particular, the Buyer is
accepting the terms and conditions under Conditions 4, 9, 10, 11, 13, 14 and 15.
17. 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.
18. 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.
19. 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 (MANDATARIO)
ON BEHALF OF TACHÉ SECURITIES BV
20.
A
consignment of goods pursuant to a Memorandum may be effected by TCNV acting
(i) on its own behalf as principal and title holder (proprietario) of the
relevant goods (“Principal Consignment”); or (ii) as agent (mandatario)
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 (mandatario) in relation
to the consignment of any diamonds to which Taché Securities BV holds
ownership title (proprietà).
21.
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.
22.
With
the submission of an order or the acceptance of a delivery (in case no order
has been made) by the Buyer, the Buyer accepts that 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.
23.
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.
24.
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.
25.
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 S.A
R.L 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/.
I presenti Termini e le Condizioni Generali di Consegna sono disponibili in
inglese al seguente indirizzo web https://www.groupetache.com/terms-conditions/.