Memo Buyer Terms & Conditions
Version 2.0 – Last Updated: 5 August 2024
1. Introduction
1.1 We offer a service to certain sellers on our Platform (the “Ultimate Owners“) called Nivoda Memo.
1.2 Nivoda Memo is the term we use to describe the service we offer, and the associated features and functionality of the Nivoda Platform, whereby users of Nivoda Express who have consigned goods to us can, through us, allow potential purchasers to take temporary possession of such goods on a temporary basis in order to investigate the potential purchase of the goods (“Nivoda Memo“).
1.3 These Terms form the agreement between you, a potential buyer of certain Consigned Goods, and us which sets out (among other things):
1.3.1 the basis by which you may take possession (but no ownership, title or other interest in) of the Consigned Goods;
1.3.2 how long you may take possession of the Consigned Goods, and when they must be returned if you do not wish to purchase them;
1.3.3 the basis for any eventual purchase by you of the Consigned Goods; and
1.3.4 how you must treat the Consigned Goods whilst within your possession and your liability with respect to the Consigned Goods.
1.4 You acknowledge that it is your decision, at your discretion, whether or not (and to what extent) to use Nivoda Memo. If you do decide to use Nivoda Memo, you agree that you have made your own assessment as to the merits of Nivoda Memo and that your use will be strictly subject to these Terms, to the exclusion of any other terms and conditions that you may seek to incorporate (by reference or otherwise).
1.5 Any notices or communications by you to us must, unless otherwise agreed by us in writing from time to time, be through the communication options available in the Platform.
2. Interpretation
2.1 Unless otherwise defined herein or the context otherwise requires, terms defined in the Supply 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.
Available Goods
2. Has the meaning given in clause 6.1.
Certificate:
3. In relation to goods which are diamonds or other precious stones, any accompanying certificates, grading reports, quality document or diamond dossier.
Consigned Goods:
4. Has the meaning given in clause 7.2.
Control
5. Has the meaning given in section 1124 Corporation Tax Act 2010, and the term “Controlled” shall be construed accordingly.
Memo Request
6. Has the meaning given in clause 6.2.
Nivoda:
7. Nivoda Limited, a company registered in England and Wales with company number 10736332.
Nivoda Memo:
8. Has the meaning given in clause 1.2.
Supply Terms
9. Has the meaning given in clause 3.1.
Terms
10. These Nivoda Memo Buyer Terms and Conditions, as updated from time to time and available at www.nivoda.com/memo-terms-conditions.
Ultimate Owners
11. Has the meaning given in clause 1.1.
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 you, the person using Nivoda Memo as a potential purchaser who has agreed to take possession of certain Consigned Goods according 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 Supply of Goods Terms and Conditions available at www.nivoda.com/supply-of-goods-terms-conditions and the documents referred to therein, each as amended from time to time (together the “Supply Terms“), which are expressly incorporated by reference. Your compliance with the Supply Terms in all respects shall be an ongoing condition to our obligations under these Terms and your ability to use Nivoda Memo.
3.2 In the event of any conflict or inconsistency between these Terms and the Supply Terms, these Terms will prevail as regards any issue relating specifically to Nivoda Memo and the Supply 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 any Nivoda Memo services. Your continued use of Nivoda Memo (or any part thereof) will be taken as your agreement to any revised terms.
3.4 By using Nivoda Memo (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 in writing from time to time). In accordance with our Terms and Conditions of Use available here: www.nivoda.com/memo-terms-conditions, you also confirm and agree that you are acting on behalf of a bona fide business in the jewellery trade.
4. Terms of Use of Nivoda Memo
4.1 Any use by you of Nivoda Memo (or any part thereof) is at our discretion. Nivoda Memo will not be appropriate for everyone and not everyone will be eligible to be a user of Nivoda Memo. Our decision as to whether a particular user is entitled to use Nivoda Memo shall be final, and this decision may vary on a case by case basis and from time to time. If we allow you to use Nivoda Memo in any particular instance this does not mean that you have the right to use Nivoda Memo in any other instance.
4.2 We may discontinue Nivoda Memo at any time and for any reason, at our discretion (and in whole or in part). We may also withdraw your right to use Nivoda Memo at any time and for any reason (including if you are in breach of these Terms), at our discretion. If we discontinue Nivoda Memo or if we withdraw your right to continue to use Nivoda Memo, we will notify you to explain how and when your ability to use Nivoda Memo will end, and you must return any Consigned Goods currently within your possession or control as instructed by us.
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. Memo Requests
6.1 We may from time to time identify goods listed for sale on our Platform which have been consigned to us and which are available to be leant out to prospective purchasers on a temporary basis (“Available Goods“).
6.2 You may request to take temporary possession of Available Goods through Nivoda Memo, our live chat function or direct email to investigate the potential sale of such goods by using the Nivoda Memo functionality within the Platform. Each such request is a “Memo Request“.
6.3 When we receive a Memo Request, we will endeavour to confirm as soon as possible (and at our discretion) whether we agree to loan the relevant Available Goods to you. If:
6.3.1 we indicate that we are not in a position to agree to the Memo Request, then you will not be able to take possession of the relevant Available Goods, neither party will have any further liability to the other with respect to the Memo Request, and these Terms shall cease to apply in relation to such Memo Request; or
6.3.2 we notify you that your Memo Request has been accepted, then we will send the relevant Available Goods to you in accordance with clause 7 and these Terms shall continue to apply.
7. Memoing and Return of Goods
7.1 If we accept your Memo Request, we will send the relevant Available Goods to the address that you have included in your Memo Request. You are solely responsible for the accuracy of that address and will be liable to us for any loss or damage (including of or to the relevant Available Goods) that flows from such inaccuracy.
7.2 From the time that the relevant Available Goods which are the subject of a Memo Request arrive at your nominated address, such goods shall constitute “Consigned Goods” for the purposes of these Terms.
7.3 You are responsible for checking the Consigned Goods immediately upon receipt for any damage or defects (other than those which may be identified within the applicable specification on the Platform) and must notify us of such damage or defects within 24 hours of receipt. If you fail to do so, you agree that such damage or defects will be taken to have occurred during the Consignment Period and you therefore accept your liability in accordance with clause 7.7.
7.4 Consigned Goods do not include any Certificates. Certificates shall remain in our or the Ultimate Owner(s)’ control, notwithstanding that the Consigned Goods to which they relate may be consigned to you. In the event that you purchase the Consigned Goods in accordance with these Terms, the Certificates for such Consigned Goods shall be sent to you at the same address that you included in your Memo Request, subject to the completion of such sale and purchase in accordance with clause 9.
7.5 Unless a sale has been conducted in accordance with clause 9 (in which case the Supply Terms shall prevail), if you wish to avoid a sale being deemed to have been agreed in accordance with clause 8.6 you must return the Consigned Goods to us prior to the end of the Consignment Period. For these purposes you shall be deemed to have returned the Consigned Goods to us once they have entered the custody and possession (and are at the insured risk) of the courier or shipping company arranged through the Platform. You must do this by creating a return shipment using the functionality within the Platform and following the steps set out in the Supply Terms. If, in breach of this clause, you arrange your own shipment then: (i) you shall remain liable for the Consigned Goods until they are returned to and accepted by us; and (ii) such goods must reach us within the Consignment Period. For the avoidance of doubt, if you have used your own courier and the Consigned Goods reach us after the end of the Consignment Period, the Consigned Goods will be deemed to have been sold and returned and will therefore be subject to higher returns fees in accordance with clause 7.8.
7.6 If you fail to return the goods to us in accordance with clause 7.5 (including, for the avoidance of doubt, due to their loss or theft), then (without prejudice to our other rights and remedies under these Terms or at law), clause 8.6 will apply.
7.7 You agree, warrant and undertake to and with us that the Consigned Goods will be returned to us in their original condition. We will undertake quality control checks upon our receipt of each of the Consigned Goods and these checks will, in the absence of evidence of manifest error, be final and binding. If such checks indicate that there has been any damage to the Consigned Goods during the Consignment Period then you will be deemed to have failed to properly return the Consigned Goods to us in accordance with clauses 7.5 and 7.6, and clause 8.6 will apply.
7.8 Following any sale of the Consigned Goods in accordance with these Terms, you will have 7 days to return the Consigned Goods, subject to a higher returns fee. You are responsible for the costs of returning the Consigned Goods to us and any applicable handling fees or returns fees otherwise communicated to you through the Platform.
7.9 Unless we agree otherwise in writing from time to time:
7.9.1 the same goods cannot be consigned to you more than once and you must not issue a further Memo Request in relation to goods that have already been consigned to you;
7.9.2 you may not consign the Consigned Goods (or otherwise grant any rights of possession of any kind) to any third party; and
7.9.3 Consigned Goods must remain within your possession and control at the address where the Consigned Goods are received and be securely held by you in accordance with best industry practice for the full duration of the Consignment Period.
7.10 We will determine, at our sole discretion, the maximum amount of Consigned Goods which you will be able to take possession of at any given time (Consignment Limit). Your Consignment Limit may be separate from any Purchasing Limit (as defined in the Supply Terms) and if so an aggregate limit may also apply across your Consignment Limit and Purchasing Limit. Any applicable limits will be communicated to you through our Platform and you will be able to view the amount of any limit remaining. In the event that we issue an invoice to you for the sale of Consigned Goods in accordance with these Terms, such invoiced amount shall be deducted from your Consignment Limit.
8. Status, Risk and Insurance of Consigned Goods
You acknowledge and agree that:
8.1 your right to possess the Consigned Goods begins from the date of your receipt of the Consigned Goods and lasts until the earlier of:
8.1.1 7 days from the date of your receipt of the Consigned Goods and for these purposes the delivery note will be conclusive evidence of the date of receipt;
8.1.2 the date that we request you to return the Consigned Goods (which we may do at any time at our discretion); or
8.1.3 the date that any sale of the Consigned Goods by us to you is completed in accordance with clause 9,
(in any case, the “Consignment Period“);
8.2 you are only permitted to use the Consigned Goods during the Consignment Period as directed or instructed by us (and unless otherwise notified you will have the right to use the Consigned Goods only for the purposes of inspection with a view to making us an offer to purchase the Consigned Goods);
8.3 the Consigned Goods shall remain legally and beneficially owned by us or the Ultimate Owner(s) during the Consignment Period and thereafter, unless sale of the Consigned Goods to you is subsequently agreed to and concluded. You must not do anything which would or may affect our or any Ultimate Owner’s ownership, rights and interests in and to the Consigned Goods;
8.4 the Consigned Goods shall be, and shall remain, at your sole risk (and you will be solely liable to us and responsible for any loss or theft thereof or damage thereto) during the Consignment Period and thereafter until the Consigned Goods are returned to us in accordance with clause 7.5 or a sale is agreed and concluded (at which point the Supply Terms shall prevail);
8.5 without prejudice to the generality of the foregoing, you must not without our prior written consent: (i) damage, alter or modify the Consigned Goods in any way; (ii) dispose of, transfer or encumber (or purport to dispose of, transfer or encumber) the Consigned Goods or any title or interest therein (or purport to do so or in any way hold yourself out as having the right to do so); or (iii) interfere with any identification marks or labels attaching to or relating to the Consigned Goods (to the extent applicable);
8.6 if you fail to return the Consigned Goods to us at the end of the Consignment Period (other than where the Consignment Period has ended due to a sale pursuant to clause 9) this shall be treated as the sale of such Consigned Goods by us to you, in accordance with our Supply Terms. The price for such sale will be the price given to the Consigned Goods on the Platform.
8.7 it is your responsibility to, and you will, ensure that the Consigned Goods are insured (to their maximum sale value) against all risks whilst in your care, custody or control up until such time as the Consigned Goods are safely returned to us in accordance with clause 7.5 or a sale is finally concluded. All proceeds received or receivable by you in respect of any such insurance shall be held on trust for us. You will provide evidence of such insurance to us on request; and
8.8 you will indemnify us and the Ultimate Owner(s) in respect of, and keep us and them indemnified from and against, all losses, liabilities and expenses (including legal fees) suffered or incurred by us as a result of or arising out of: (i) any loss, theft of or damage to the Consigned Goods while at your risk or within your possession under these Terms; and (ii) any breach by you of these Terms.
9. Sales of Consigned Goods
9.1 While we hope that you will decide to make an offer to purchase the Consigned Goods, nothing in these Terms gives you the right to buy, or imposes on us the obligation to sell, any Consigned Goods.
9.2 Any such sale and purchase is subject to agreement, and must (unless agreed otherwise in writing by us) be concluded through the Platform on the basis of our Supply Terms.
9.3 If you agree sale terms relating to Consigned Goods with a third party to whom you intend to sell the Consigned Goods:
9.3.1 you must confirm the sale within the Platform within 2 hours; and
9.3.2 you acknowledge and agree that you have no right to sell the Consigned Goods to such party, and that you therefore have no authority to agree a sale to that third party, unless and until the sale from us to you is first confirmed in accordance with our Supply Terms.
9.4 The price of Consigned Goods is fixed for the duration of the Consignment Period. It is subject to revision if and when the Consigned Goods are returned to us.
10. Liability
10.1 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.
10.2 You are responsible for inspecting the Consigned Goods and making your own decision whether or not to purchase the Consigned Goods. Because you will have had the opportunity to inspect the Consigned Goods yourself, and because we sometimes operate as a broker between you and the Ultimate Owner(s) as the seller, to the fullest extent permitted by law we will not be responsible or liable for any inaccurate or misleading information that may have been listed or communicated through the Platform or otherwise relating to the Consigned Goods.
10.3 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:
10.3.1 Consequential, special or indirect loss;
10.3.2 Loss of profits, sales, opportunity, anticipated savings, contracts, or business;
10.3.3 Loss of use or corruption of software, data or information; and
10.3.4 Loss of or damage to goodwill or reputation.
10.4 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.
10.5 Subject to the foregoing provisions of this clause 10, our aggregate liability to you shall not exceed the amount of the fees you have paid us for use of the Platform in the 6 months preceding the date of such claim (or if you have not paid us any fees, £1.00).
11. General
11.1 These Terms, together with the documents referred to herein, constitute the entire agreement and understanding of the parties as regards your use of Nivoda Memo 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.
11.2 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 at our discretion terminate the agreement formed by these Terms on written notice to you.
11.3 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.
11.4 You undertake that you will at your own cost and expense do, or procure to be done, all further acts and things and execute or procure the execution of all other documents as we may from time to time reasonably require for the purpose of giving us the full benefit of the provisions of these Terms.
11.5 These Terms are governed by and shall be construed in accordance with the laws of England and Wales. 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 and Wales.
11.6 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.
