Nivoda Express Supplier Terms & Conditions

Version 1.0 – Last Updated: 6 February 2023

1. Introduction

1.1 These Terms govern our provision of, and your use of, Nivoda Express. Nivoda Express is the term we use to describe the collection of features and functionality of (or offered in connection with) the Nivoda Platform, whereby we may from time to time allow users to send Consigned Goods to us and have them stored securely by us. By doing so, users of Nivoda Express may benefit from additional services that we may offer from time to time in connection with Nivoda Express, which could bring benefits such as shorter delivery times, enhanced quality control, and the ability to send Consigned Goods out on consignment by using Nivoda Memo.

1.2 You acknowledge that it is your decision, at your discretion, whether or not (and to what extent) to use Nivoda Express. If you do decide to use Nivoda Express, you agree that you have made your own assessment as to the merits of Nivoda Express and that your use will be strictly subject to these Terms.

2. Interpretation

2.1 Unless otherwise defined herein or the context otherwise requires, terms defined in the Purchase Terms shall have the same meanings when used in these Terms.

2.2 In these Terms, the following terms shall have the following meanings:

Affiliate	1. Any entity which is Controlled by Nivoda or under common Control with Nivoda.
Certificate	2. In relation to goods which are diamonds or other precious stones, any accompanying certificates, grading reports, quality document or diamond dossier.
Consigned Goods	3. Goods that are consigned to us by Nivoda Express users in accordance with clause 6 (and in particular clause 6.7), as more specifically defined in the applicable Consignment Form.
Consignment Form	4. The form to be submitted by you in relation to any goods that you wish to consign to Nivoda in connection with your use of Nivoda Express, in the form available at https://app.nivoda.net/supplier/consignments from time to time.
Consignment Longstop Date	5. Has the meaning given in clause 11.2.
Consignment Package	6. Has the meaning given in clause 6.5.
Consignment Period	7. The period: 8. (i) beginning on the date that we issue a Successful Consignment Notice in relation to Consigned Goods; and 9. (ii) ending on the date that the Consigned Goods are returned to the Return Address in accordance with clause 11.
Control	10. Has the meaning given in section 1124 Corporation Tax Act 2010, and the term “Controlled” shall be construed accordingly.
Insurance Parameters	11. Has the meaning given in clause 7.3.3.
Nivoda	12. Nivoda Limited, a company registered in England and Wales with company number 10736332.
Nivoda Express	13. The Nivoda Express service operated by us in connection with the Platform from time to time, as described in clause 1.1 above.
Nivoda Memo	14. The ability for users of the Platform, being potential purchasers of particular goods, to take temporary possession of such goods on an On Memo basis.
On Memo	15. Has the meaning given in clause 9.1.
Purchase Terms	16. Has the meaning given in clause 3.1.
Security Parameters	17. Has the meaning given in clause 7.3.1.
Successful Consignment Notice	18. Has the meaning given in clause 6.6.
Return Address	19. Has the meaning given in clause 11.4.1.
Return Request	20. Has the meaning given in clause 11.1, and includes Return Requests that are deemed to have been issued pursuant to clause 11.2.
Terms	21. These Nivoda Express Terms and Conditions, as updated from time to time and available at https://nivoda.net/product/services/nivoda-express-suppliers/.
Verification	22. Has the meaning given in clause 6.6.

2.3 In these Terms:

2.3.1 A person includes a natural person, firm, corporate or unincorporated body (whether or not having separate legal personality).

2.3.2 A reference to a party includes its successors and permitted assigns.

2.3.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

2.3.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.3.5 Unless the context otherwise requires:

2.3.5.1 the terms us, our, or we are references to Nivoda; and

2.3.5.2 the terms you or your are references to the user of Nivoda Express who has agreed to these Terms.

2.4 To contact us please use the contact form of our Platform. To give us formal notice of any matter under these Terms please refer to Clause 16 of the Purchase Terms.

3. Status of these Terms

3.1 These terms apply in addition to the Purchase of Goods Terms and Conditions available at https://nivoda.net/product/services/nivoda-express-suppliers/ and the documents referred to therein (including our Terms and Conditions of Use, Privacy Policy, AML Policy and Sourcing Protocol), each as amended from time to time (together the “Purchase Terms“), which are expressly incorporated by reference. Your compliance with the Purchase Terms in all respects shall be an ongoing condition to our obligations under these Terms and your ability to use Nivoda Express.

3.2 In the event of any conflict or inconsistency between these Terms and the Purchase Terms, these Terms will prevail as regards any issue relating specifically to Nivoda Express and the Purchase Terms will prevail in all other respects.

3.3 We may amend these Terms from time to time by posting the updated version on our Platform. We will use reasonable endeavours to make you aware of any significant changes at least 30 days before they are due to take effect, but it is your responsibility to check for any changes to these Terms every time you use the Platform and especially before you use any Nivoda Express feature(s). Your continued use of Nivoda Express (or any part thereof) will be taken as your agreement to any revised terms.

3.4 By using Nivoda Express (or any part thereof) you confirm that you are able to agree to and perform all the obligations set out in these Terms (and any other terms and conditions incorporated by reference or agreed between us from time to time). In accordance with Clause 7.4 of our Terms and Conditions of Use, you also confirm and agree that you are acting on behalf of a bona fide business in the jewellery trade.

4. Terms of Nivoda Express Service

4.1 Use of Nivoda Express is at our discretion. Nivoda Express will not be appropriate for all users of our Platform, and accordingly not all users of our Platform will be eligible for Nivoda Express. Our decision as to whether a particular user is entitled to use Nivoda Express shall be final.

4.2 We may discontinue Nivoda Express at any time and for any reason, at our discretion. We may also withdraw your right to use Nivoda Express at any time and for any reason (including if you are in breach of these Terms), at our discretion. If we discontinue Nivoda Express or if we withdraw your right to continue to use Nivoda Express, we will notify you to explain how and when your ability to use Nivoda Express will end, and how and when any unsold Consigned Goods will be returned to you.

5. Our Group

5.1 These Terms are entered into by us on behalf of us and our Affiliates, in conjunction with whom we operate the Platform and provide our services. Accordingly:

5.1.1 we may at our discretion exercise our rights and carry out our obligations under these Terms through or with the assistance of any of our Affiliates; and

5.1.2 if you breach these Terms, we shall be entitled (without prejudice to any other right or remedy we or our Affiliates may have) to claim against you for damages suffered by us and/or any of our Affiliates.

6. Consignment of Goods

6.1 Nivoda Express users may request to consign goods to us by submitting a Consignment Form.

6.2 Submission of a Consignment Form represents a request by you to consign the goods detailed therein to us, and may be accepted or refused in our absolute discretion.

6.3 You are responsible for ensuring that full and accurate details of the goods and the proposed consignment are included in reasonable detail in the Consignment Form. Acceptance by us of a Consignment Form shall not be taken to relieve you from this obligation.

6.4 If we require further information or amendments to the Consignment Form we will notify you through the Platform and you will have 2 days from such notification to provide such information or edit the Consignment Form. If you do not re-submit the Consignment Form within such period, the Consignment Form will automatically lapse and you must submit a new one.

6.5 If we accept the proposed consignment of goods as detailed in a Consignment Form, we will provide you with notice of our acceptance through the Platform and you will have 2 days from the date of such notification to procure the delivery of the applicable goods to us, together with all relevant Certificates and supporting information we may reasonably require (a “Consignment Package“). Unless otherwise agreed, delivery must be to the Nivoda office address specified in the Consignment Form.

6.6 Once we have received a Consignment Package, we will within 5 days undertake a review of the contents of the Consignment Package to verify that the relevant goods, Certificates and any supporting evidence is as described in the Consignment Form (“Verification“). If we are not satisfied that Verification has been successful, we will notify you of the same through the Platform and return the whole or part of the consignment package, not meeting the criteria to you. If we are satisfied that Verification has been successful, we will notify you of the same through the Platform (a “Successful Consignment Notice“).

6.7 Consignment Packages shall only be considered consigned to us from the point that we issue a Successful Consignment Notice in relation to the same, whereupon the contents of the relevant Consignment Package shall be considered Consigned Goods for the purposes of these Terms.

7. Title, Risk and Insurance

7.1 Legal title in all Consignment Packages and Consigned Goods remains yours at all times unless and until a sale of the goods is concluded in accordance with the Purchase Terms.

7.2 Risk in and to all Consignment Packages remains with you unless and until the goods become Consigned Goods in accordance with clause 6.7. We accept no responsibility in respect of, and to the fullest extent permitted by law we shall not be liable for, any loss, theft or damage to any of the contents of Consignment Packages unless and until they become Consigned Goods.

7.3 From the point at which the contents of a Consignment Package become Consigned Goods and for the duration of the Consignment Period:

7.3.1 we will hold the Consigned Goods securely in a safe at our or one of our Affiliates’ offices in accordance with good industry practice;

7.3.2. we will accept responsibility for, and subject to clause 12 we will acquire the risk in and be liable to you (but no third party) for, and we hereby indemnify you in respect of, any loss, theft or damage of the Consigned Goods while in our possession or control;

7.3.3 we will procure that Consigned Goods will be insured for the duration of the Consignment Period in accordance with good industry practice ; and

7.3.4 we will not handle or otherwise deal with the Consigned Goods other than as contemplated by these Terms, including to: (i) issue the Consigned Goods out On Memo, (ii) to sell the Consigned Goods in accordance with the Purchase Terms, (iii) to arrange for storage and, if sold, delivery of the Consigned Goods; (iv) to transfer the Consigned Goods to any of our or our Affiliates’ sites; (v) to loan the Consigned Goods out for events and trade shows, or (vi) return the Consigned Goods to you.

8. Sales of Consigned Goods

8.1 We may (and you hereby grant us permission and authorisation to List (on your behalf) the Consigned Goods for sale on the Platform in accordance with the Purchase Terms on such terms as we may reasonably determine (including as to price and returns) for the duration of the Consignment Period, subject only to clause 8.2. You must give us the information required for us to correctly List the Consigned Goods (including all of the information in Schedule 1 of the Purchase Terms).

8.2 You set the desired sale price for the Consigned Goods. Once set, and unless and until amended in accordance with clause 8.3, those prices are final and you will be legally bound to sell at that price in accordance with the Purchase Terms. The price must be communicated to us as part of the Consignment Form and must be a total USD amount (no other currencies or pricing methods (such as rapaport price discount or price per carat) are accepted and the USD total will prevail in the event of any conflict between it and any other currencies or pricing methods).

8.3 You may decrease the list price at any time by notifying us [through the Platform] and we will update the price as soon as reasonably practicable. You may increase the price at any time by notifying us through the Platform and we will update the price as soon as reasonably practicable, provided that if the Consigned Goods are On Memo, such increase will only take effect from the date that such Consigned Goods cease to be On Memo.

8.4 In respect of any sales made through the Platform, you will be notified once such sale is confirmed and you may then invoice us in respect of the same. Payment will be handled in accordance with the Purchase Terms.

8.5 You may offer any Consigned Goods for sale during the Consignment Period outside of the Platform provided always that:

8.5.1 you must not confirm such sale (and will ensure that such offer remains conditional) until we have confirmed to you in writing that the relevant goods are not out On Memo and are able to be sold (i.e. that we have not agreed a sale and that we are not in the process of agreeing a sale or potential sale with a third party); and

8.5.2 if you conclude such sale other than through the Platform, we will handle fulfilment of the delivery of the Consigned Goods to the buyer (but without accepting any liability to the buyer) and such sale will be conditional upon you or the buyer providing us with such details as are necessary to fulfil such order (including, where the buyer is not yet a user of Nivoda, information required in order for the buyer to be registered as a new user on the Platform). If such sale causes the buyer to become a new user of the Platform, we will not charge a fee for this service. Otherwise our standard rates will apply.

9. Bailment (‘Memoing’) of Consigned Goods

9.1 If you have opted in to use Nivoda Memo, we may (and you hereby grant us permission and authorisation to) transfer possession of the Consigned Goods (or part thereof) to any prospective buyer on a temporary basis. Such goods are referred to as being “On Memo“.

9.2 We will retain secure possession of Certificates notwithstanding that the Consigned Goods to which they relate may be On Memo.

9.3 As between us and potential purchasers that take possession of Consigned Goods on an On Memo basis, use of Nivoda Memo will be in accordance with our Nivoda Memo terms and conditions from time to time in force, which are available here: [INSERT URL]. You acknowledge and agree that you approve the use and content of such terms from time to time in force for such purposes.

10. Other Permitted Uses of Consigned Goods

We may also (and you hereby grant us permission and authorisation to) use the Consigned Goods:

10.1 in order to lend the Consigned Goods to events and trade shows;

10.2 to allow the Consigned Goods to be inspected by any interested party during the Consignment Period;

10.3 in any other manner as may be required by law or regulatory authority;

10.4 to transfer the Consigned Goods to our other sites and facilities (or those of our Affiliates) at our discretion during the Consignment Period; and

10.5 for purposes that are ancillary or incidental to any other purpose permitted or contemplated by these Terms.

11. Return of Consigned Goods

11.1 You can request that any Consignment Goods are returned to you at any time during the Consignment Period by notifying us of such request through the Platform (a “Return Request“). You may issue a Return Request in respect of some or allof a Consignment Package.

11.2 Our maximum Consignment Period (exclusive of the time it takes us to return the Consigned Goods to you) is 180 days from the date of our receipt of the same (the “Consignment Longstop Date“). You will automatically be deemed to have issued a Return Request (if you have not done so already) on the Consignment Longstop Date.

11.3 We will process Return Requests as soon as commercially feasible following:

11.3.1 the Return Request; or

11.3.2 if the Consigned Goods (or part thereof) which are the subject of a Return Request are On Memo when the Return Request is received, the date on which we regain possession of the Consigned Goods, provided that if the goods are subsequently sold while On Memo: (i) the sale will take priority over the Return Request, (ii) the Consigned Goods will be sold in accordance with these Terms and the Purchase Terms; and (iii) the Return Request will be deemed void ab initio.

11.4 Return Requests will be processed in accordance with the following procedure:

11.4.1 Consigned Goods which are the subject of a Return Request will be returned to the nearest Affiliate site at the next available weekly inter-company shipment. The relevant Affiliate will then arrange for delivery to such address as you may specify in the Return Request or, if you have failed to specify a return address, the address linked to your user profile on the Platform (in each case the “Return Address“);

11.4.2 You are responsible for the accuracy of the address you give us in the Return Request and the address linked to your user profile. You are also responsible for the security of your account details and credentials. Delivery by us or on our behalf to the Return Address will be in full satisfaction of our obligations to you to return the Consigned Goods, regardless of whether the Return Address: (i) is inaccurate, out of date or otherwise erroneous; or (ii) is changed as a result of your account on the Platform having been compromised; and

11.4.3 Consigned Goods will usually be returned to the Return Address within 10 working days of a Return Request.

12. Liability

12.1 With respect to any loss, damage or theft of any Certificates forming part of any Consigned Goods while within our possession or control, we will (or will procure that a third party will) at our own cost reissue or replace the Certificate. You accept that:

12.1.1 this shall be your sole remedy in the event of any such loss, damage or theft; and

12.1.2 the contents of any particular Certificate are based on observations, interpretations and standards which can differ from lab to lab and on a case by case basis, and therefore the replacement Certificate may not be the same as the original provided to us.

12.2 These Terms set out our full obligations to you and shall operate to exclude any other warranties, representations, covenants or obligations that we would otherwise owe you, whether express or implied (by statute, course of dealing or otherwise), which shall to the fullest extent permitted by law, be excluded from this agreement.

12.3 We will not be liable to you under or in connection with these Terms (whether in contract, tort, or otherwise) for or in respect of:

12.3.1 Consequential or indirect loss;

12.3.2 Loss of profits, sales, opportunity, anticipated savings, contracts, or business;

12.3.3 Loss of use or corruption of software, data or information; and

12.3.4 Loss of or damage to goodwill or reputation.

12.4 Nothing in these Terms limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.

12.5 Subject to the foregoing provisions of this clause 12, our aggregate liability to you shall not exceed:

12.5.1 in relation to claims by you against us for loss, theft or damage of Consigned Goods under clause 7.3.2, the value of the Consigned Goods in question (being the lower of: (i) the price specified in the Consignment Form; or (ii) the price set for the goods on the Platform); and

12.5.2 in relation to any other claims under or in connection with these Terms, the lower of: (i) 100% of the fees you have paid us in the 6 months preceding the date of such claim; or (ii) [£50,000].

13. General

13.1 These Terms, together with the documents referred to herein, constitutes the entire agreement and understanding of the parties as regards Nivoda Express and supersedes any prior agreement, draft agreement, arrangement or understanding (whether in writing or not and whether express or implied) between the parties relating to the subject matter of these Terms.

13.2 We may vary these Terms by updating the current version of the Terms available at [INSERT URL] from time to time. The updated version of these Terms will apply to your next use of Nivoda Express (or part thereof). We will use reasonable endeavours to bring your attention to any material amendments, but it is your responsibility to check for updates to these Terms each time you use Nivoda Express (or any part thereof).

13.3 We will not be in breach of these Terms nor liable for any delay in performing, or failure to perform, any of our obligations under these Terms if such delay or failure results from a Force Majeure Event. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the relevant obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 2 calendar months or longer, we may terminate the agreement formed by these Terms on written notice to you.

13.4 Any failure by us to exercise or delay in exercising a right, power or remedy provided under these Terms or by law does not affect or constitute a waiver of that right, power or remedy. No single or partial exercise of any right, power or remedy by us shall prevent any further or other exercise or the exercise of any other right, power or remedy.

13.5 These Terms are governed by and shall be construed in accordance with the laws of England. Non-contractual obligations (if any) arising out of or in connection with these Terms (including the formation of a contract by them) shall also be governed by the laws of England.

13.6 You submit to the exclusive jurisdiction of the courts of England and Wales as regards any claim, dispute or matter (whether contractual or non-contractual) arising out of or in connection with the agreement formed by these Terms. We may bring proceedings against you in England and Wales or any other jurisdiction.