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TACH 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 Tach Company NV (TCNV) (acting on its own behalf or as agent (mandatario) on behalf of Tach Securities S.A R.L 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 Tach Securities S.A R.L 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 Tach Securities S.A R.L 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 Tach Securities S.A R.L 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 Tach Securities S.A R.L 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 Tach Securities S.A R.L as the case may be) sends (at its own expense) for the Buyers 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 Tach Securities S.A R.L, as notified to the Buyer from time to time), and the relevant goods are owned by and title thereto shall remain with TCNV or Tach Securities S.A R.L 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 Tach Securities S.A R.L (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 Tach Securities S.A R.L 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 Tach Securities S.A R.L remain identifiable and traceable as the property of TCNV or Tach Securities S.A R.L (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.

8.                   TCNV warrants that the diamonds invoiced in this Memorandum are exclusively of natural origin and are untreated. This warranty provided by TCNV is based upon personal knowledge and/or written guarantees provided by the supplier of these diamonds and/or upon the certificates received from recognized institutions when available.

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 TCNVs 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, Tach Securities S.A R.L or any other person in respect thereof.

11.               To the extent permitted by law, neither TCNV nor Tach Securities S.A R.L 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 Buyers 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, Tach Securities S.A R.L 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 TCNVs 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.

13.               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 TCNVs 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 TCNVs option, by the courts and according to the laws of the place where the goods were delivered.

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.

15.               TCNV reserves the right to vary these Consignment Conditions from time to time on giving the Buyer at least 5 business days notice in writing.

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 Tach Securities S.A R.L 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 arms 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 TACH COMPANY NV AS PRINCIPAL OR AS AGENT (MANDATARIO) ON BEHALF OF TACH SECURITIES S.A R.L

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 Tach Securities S.A R.L 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. Tach Securities S.A R.L 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 Tach Securities S.A R.L holds ownership title (propriet).

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 Tach Securities S.A R.L 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 Tach Securities S.A R.L 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 Tach 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.tachediamonds.com/Terms-Conditions.

I presenti Termini e le Condizioni Generali di Consegna sono disponibili in inglese al seguente indirizzo web https://www.tachediamonds.com/Terms-Conditions.