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 located in Switzerland submitted (by email or other usual method of communication between the parties) from an authorised person of the consignee (the “Consignee”) to Taché Company NV (“TCNV”) (acting on its own behalf or as agent on behalf of Taché Securities BV as the case may be) and every consignment of goods to the Consignee by TCNV (acting on its own behalf or as agent on behalf of Taché Securities BV as the case may be), the Consignee acknowledging that it has already agreed to the use of these Consignment Conditions in respect of every such consignment. Subject to Condition 22 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 Consignee and any other terms and conditions submitted to or by the Consignee, including in respect of any diamonds already on consignment by TCNV to the Consignee 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 Consignee submitting the order for the goods to TCNV (acting on its own behalf or as agent on behalf of Taché Securities BV as the case may be) shall expressly accept the Consignment Conditions which have been delivered to the Consignee in advance and are at any time available on the following website: [website hyperlink to be inserted]. An order submitted by the Consignee (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 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 on behalf of Taché Securities BV as the case may be) constitutes the acceptance to enter into a consignment agreement with the Consignee. In case TCNV (acting on its own behalf or as agent on behalf of Taché Securities BV as the case may be) sends (at its own expense) for the Consignee’s evaluation one or more goods without a specific order from the Consignee for those goods, the acceptance from the Consignee of the delivery constitutes the acceptance of the Consignment Conditions.
(a) The Factuur (as defined in Condition 14) represents an offer by TCNV to enter into a sales contract based on the price proposed by TCNV in the Factuur;
(b) The Consignee can accept the offer to enter into a sales contract by way of confirmation (by email or other usual method of communication between the parties) of the final purchase price proposed in the Factuur.
4. The Consignee acknowledges and agrees that the ownership (Eigentum) of the goods will remain with TCNV or Taché Securities BV, as the case may be, as long as the goods are subject to these Consignment Conditions.
5. The Consignee further acknowledges and agrees that all goods owned by Taché Securities BV, as notified to the Consignee from time to time, have been pledged (verpfändet) by Taché Securities BV to GLAS Trust Corporation Limited in its capacity as security trustee on behalf of the pledgees. The Consignee agrees to hold possession of the goods owned by Taché Securities BV (the "Pledged Goods") as custodian of GLAS Trust Corporation Limited in its capacity as security trustee on behalf of the pledgees. In its role as custodian, the Consignee acknowledges and agrees that any disposition (i.e., sale, transfer of ownership, creation of a pledge or usufruct or similar) by the Consignee of the Pledged Goods requires the prior written approval from GLAS Trust Corporation Limited in its capacity as security trustee on behalf of the pledgees and that GLAS Trust Corporation Limited in its capacity as security trustee on behalf of the pledgees may at any time instruct the Consignee as custodian to return the Pledged Goods. Any pledge rights or retention rights that the Consignee may have in respect of the Pledged Goods are subordinated to those of the pledgees. The Consignee expressly and irrevocably agrees to comply with any instructions of GLAS Trust Corporation Limited in its capacity as security trustee on behalf of the pledgees with respect to the Pledged Goods. GLAS Trust Corporation Limited in its capacity as security trustee on behalf of the pledgees will inform the Consignee of any release of the pledge over the Pledged Goods.
6. Without limitation to any other terms of these Consignment Conditions, the Consignee accepts that until any consignment of goods pursuant to a Memorandum is terminated or a valid sales contract has been entered into as referred to in Condition 3 and Condition 24, the delivered goods are held by the Consignee on consignment from TCNV (acting on its own behalf or as agent on behalf of Taché Securities BV, as notified to the Consignee from time to time), and the relevant goods are owned by and title thereto shall remain with TCNV or Taché Securities BV as applicable.
7. Subject to Condition 27, the Consignee is responsible for any loss of or damage to the goods caused by the Consignee as soon as the goods are delivered to the selected warehouse indicated by the Consignee (or to any other location (i) based on the Consignee's instructions or (ii) any previous agreement between the parties). The value of the goods specified in the Memorandum is the value which the Consignee is liable for to TCNV or Taché Securities BV (as applicable) in the event of any loss of or damage to the goods.
8. The Consignee must at all times following delivery of the goods to it (i) keep the goods consigned to the Consignee by TCNV acting as agent on behalf of Taché Securities BV separately identifiable from any other goods consigned to the Consignee by TCNV (acting on its own behalf) or by any other person other than TCNV; (ii) ensure that the goods consigned to the Consignee by TCNV acting on its own behalf or as agent on behalf of Taché Securities S.A R.L 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.
9. The Consignee agrees and acknowledges that under no circumstances may any goods consigned to it, whether under an Agent Consignment or Principal Consignment (as defined in Condition 20), be further consigned or transferred by the Consignee to any other third party. For the avoidance of doubt this shall not prevent the Consignee from holding the consigned goods through an authorised representative or agent of the Consignee or from having the consigned goods valued by a professional valuer, provided that the Consignee safeguards that such authorised representative or agent of the Consignee (provided that the Consignee remains fully liable and responsible for the consigned goods in accordance with these Consignment Conditions notwithstanding such holding) or a professional valuer are subject to duties substantially equivalent to those of the Consignee as described in Condition 5.
10. The Consignee must not cause any damage to the consigned goods, nor any modification whatsoever to the consigned goods. The Consignee must have a market standard all risks insurance policy covering all loss of or damage to the goods.
12. The Consignee 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 11 above at the latest within 3 (three) business days after receipt of the supplied goods as specified in any relevant Memorandum. If the Consignee fails to do so, the Consignee 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 11 above.
13. The Consignee agrees that TCNV’s only obligation in respect of any goods (a) being in breach of Condition 11 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 Consignee has returned the defective goods to TCNV, subject to compliance with Condition 15 below. Should the Consignee fail to return the allegedly defective goods within 1 (one) week of the notification of such goods being allegedly defective, TCNV reserves the right to charge a contractual penalty up to the market value of the relevant goods as determined by TCNV in its own discretion.
The Consignee agrees that its recourse in respect of the warranty in Condition 11 and/or any defect or non-conformity as set out in this Condition 13 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 Consignee shall have no further recourse against TCNV, Taché Securities BV or any other person in respect thereof.
14. 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 or wilful misconduct) to the Consignee, 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 Consignee or customers of the Consignee for service interruption or any claim of whatever nature from the Consignee or the Consignee’s customers and whether or not such loss or damage is based on contract, warranty, negligence, indemnity, strict liability or otherwise.
Conclusion of any purchase agreement in respect of any supplied goods between the Consignee to TCNV pursuant to a invoice (“Factuur”) shall extinguish any right which the Consignee might otherwise have had in respect of the supplied goods under these Consignment Conditions against TCNV, Taché Securities BV or any other party, whether pursuant to Condition 11 or otherwise.
15. Returns made by the Consignee pursuant to Condition 13 will only be accepted without additional charges if TCNV’s specialists confirm that the goods conform to the goods originally shipped, without any damage (other than such damage specified by the Consignee where relevant), modification or intervention of any kind.
17. With the submission of an order or the acceptance of a delivery (in case no order has been made) by the Consignee, as the case may be, the Consignee 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 Consignee to acquaint itself with these Consignment Conditions in the native language of the jurisdiction of the Consignee does not exempt the Consignee of their full implementation.
19. 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 Consignee to TCNV (acting on its own behalf or as agent 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 Consignee accepts all the terms and conditions under the Consignment Conditions and in particular, the Consignee is accepting the terms and conditions under Conditions 7, 12, 13, 14, 16, 17 and 18.
20. Each of TCNV and the Consignee 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.
21. Each of TCNV and the Consigneeexpressly 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.
22. Each of TCNV and the Consignee 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
23. A consignment of goods pursuant to a Memorandum may be effected by TCNV acting (i) on its own behalf as principal and owner (Eigentümer) of the relevant goods (“Principal Consignment”); or (ii) as agent on behalf of Taché Securities BV as owner (Eigentümer) of the relevant goods (“Agent Consignment”). Any sale of goods pursuant to a valid sales contract based on 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 BV holds ownership title (proprietà).
24. 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.
25. With the submission of an order or the acceptance of a delivery (in case no order has been made) by the Consignee, the Consignee 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 Consignee. In each such case TCNV will send the Consignee an updated Memorandum via email confirming in respect of which goods on consignment to the Consignee that a transfer of title from TCNV to Taché Securities BV has taken place.
26. The Consignee 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.
27. 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 (on its own behalf or on behalf of Taché Securities BV, as applicable), or the Consignee has been issued with a Factuur in respect of such goods and has validly concluded a sales agreement based on the Factuur as described in Condition 3 (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) conclusion of a valid sales agreement between the Consignee and TCNV by the Consignee accepting the Factuur issued by TCNV in respect of the relevant goods. Prior to this, (i) TCNV retains the right to request the goods to be shipped back to it at any time and the Consignee shall comply with such request (to the extent permitted by law); and (ii) in the event of the insolvency of the Consignee, the Consignee shall forthwith use all reasonable endeavours to return the goods to TCNV. Should the Consignee fail to return the goods when requested by TCNV, TCNV reserves the right to charge a contractual penalty up to 20% higher than the market value of the goods, as determined by TCNV in its own discretion (to the extent permitted by law).
Die vorliegenden General Consignment Conditions sind in Englisch unter der folgenden Web-Adresse verfügbar https://www.tachediamonds.com/Terms-Conditions.
Les présentes General Consignment Conditions sont disponibles en anglais à l'adresse web suivante https://www.tachediamonds.com/Terms-Conditions.
I presenti General Consignment Conditions sono disponibili in inglese al seguente indirizzo web https://www.tachediamonds.com/Terms-Conditions.