Purchase of Goods Terms & Conditions

1.Introduction

1.1 These Terms apply to the purchase by us, Nivoda, and the supply by you, the Supplier, of the Goods specified in each Listing (each as defined herein). The Terms apply to all Listings. When you make a Listing, you declare that you have read, understood and agree to be bound by these Terms.

2.Interpretation

2.1 Definitions:

2.2 In these Terms:

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

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

2.2.3 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.

2.2.4 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 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 18.

3. Status of these Terms

3.1 These Terms apply in addition to any other terms of use or other terms and conditions, policies or guidelines which relate to our Platform or services or are otherwise notified to you or agreed between you and Nivoda from time to time, including:

3.1.1 our Terms and Conditions of Use;

3.1.2 our Privacy Policy;

3.1.3 our AML Policy; and

3.1.4 our Sourcing Protocol,

each as amended from time to time and each of which are expressly incorporated into these Terms.

3.2 In the event of any conflict or inconsistency between any of the provisions described in these Terms and any of the other policies/terms and conditions, the relevant policy/terms and conditions listed first in the following list will prevail:

3.2.1 the Privacy Policy (insofar as it relates to personal data);

3.2.2 the AML Policy;

3.2.3 the Sourcing Protocol;

3.2.4 these Terms; and

3.2.5 the Terms and Conditions of Use.

3.3 These Terms are agreed between you and Nivoda provided that any benefit or right granted under these Terms is also granted to and may be exercisable by any Group Company, any loss or damage suffered by any Group Company as a result of your breach of these Terms can be claimed by the relevant Group Company or by Nivoda on their behalf and any of Nivoda’s obligations under these Terms may be performed by any Group Company.

3.4 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 make a Listing on the Platform. Your continued use of the Platform will be taken as your agreement to any revised terms.

3.5 By using the Platform and making any Listings 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. Your Use of the Platform

4.1 Use of our Platform remains subject at all times to our other policies and terms of use communicated to you from time to time.

4.2 You may only use the Platform to make Listings and sell (or attempt to sell) your Goods. You must not use the Platform other than for bona fide commercial purposes. No consumers are permitted to use our Platform.

4.3 You must not use our Platform for any false or fraudulent purchases. While we use reasonable endeavours to ensure that the Platform is operated in accordance with all applicable laws in the jurisdiction where we are based, it is your sole responsibility to ensure that you are lawfully permitted to use our Platform, and that your use of our Platform is in accordance with all applicable laws, in any jurisdiction where you are based or carry on your business.

4.4 Every reasonable effort is made to ensure that our Platform and all information displayed on or communicated through it is true and up to date. However, as much of that information is provided by third parties we cannot guarantee its accuracy or completeness.

5. Listings

5.1 You may make a Listing:

5.1.1 through the Platform by following the in-Platform options and completing the required information;

5.1.2 by uploading a file with your Listings via file transfer protocol (FTP) to an FTP server provided by Nivoda, in such form and according to such instructions as Nivoda may specify from time to time;

5.1.3 by sharing your Listings through a file or application programming interface (API), subject to Nivoda’s continuing support of the same and according to such instructions as Nivoda may specify from time to time; or

5.1.4 by syncing your Listings through the Nivoda plugin for Microsoft Excel, ensuring that you comply with all requirements and instructions relating thereto as Nivoda may specify from time to time.

5.2 In relation to any Listings made via FTP or API:

5.2.1 you are responsible for ensuring that all such Listings comply with these Terms (and in particular that the full Specification is included in your upload and that the files are properly formatted and tabulated); and

5.2.2 you are responsible for ensuring that any changes to your use of the same (including any structural changes, any changes in the names or other details of the uploaded file and any changes in the link or credentials of your API/FTP access) are promptly notified to Nivoda.

5.3 You are responsible for ensuring that your systems meet the minimum requirements to use the Platform from time to time and that all client-side dependencies are in place to enable you to make Listings (including, without limitation and as applicable, a reliable internet connection, up to date operating system, an appropriate FTP client and an appropriately licensed Microsoft Excel product).

5.4 Nivoda endeavours to ensure that each of the Listing methods specified above will be available to use at any given time. However, Nivoda cannot guarantee that any or all of the methods will be available at any given time.

5.5 You must take all reasonable precautions to avoid introducing any virus, worm, or other malicious computer code into the Platform or Nivoda’s systems through the upload of any Listing, including as a minimum having up to date commercially available virus and malware protection on any system you use to upload any files.

5.6 Each Listing must set out in reasonable detail the Goods you are seeking to sell and the Specification of the Goods, which shall include as a minimum the information set out in Schedule 1.

5.7 You are responsible for ensuring that the terms of each Listing and the applicable Specification attaching to the Goods are (and remain for the duration of the Listing) complete and accurate in all respects, including the mandatory requirements for Listings relating to Gemstones and jewellery set out in Schedule 1. You will be solely liable to Nivoda, its Customers and any relevant third parties, for any incomplete or inaccurate Listings.

5.8 You are responsible for ensuring that each Listing complies with all applicable laws, regulations and codes of practice. For the avoidance of doubt, in the case of Listings relating to jewellery this includes laws, regulations and codes of practice relating to the marking of any precious metals contained in such Goods.

5.9 You acknowledge and agree that each Listing constitutes an offer by you to sell the Goods set out in the Listing to Nivoda in accordance with that Listing, the Specification and these Terms, and that we shall be free to accept or decline that offer at our absolute discretion. Once we notify you in writing that we agree to buy any Goods offered for sale in a Listing (which may be by email or via the Platform), your offer to sell the Goods is accepted by us and a binding legal contract is formed between you and us, whereby you agree to sell and we agree to buy the Goods according to the relevant Listing, the relevant Specification, and these Terms (each a Contract).

5.10 In the case of Consigned Goods, including Goods On Memo (each as defined in the Nivoda Express Supplier Terms & Conditions), a Contract will only be deemed to have been formed following the sale of such Goods in accordance with the Nivoda Express Terms & Conditions and the Nivoda Memo Terms & Conditions.

5.11 All Goods must be sold on our Platform at your best price. You agree that if at any time you list or offer for sale any Goods which are Listed on the Platform anywhere else at a lower price, you shall reduce the relevant Price on the Platform to match that lower price. In the case of melee diamonds, if you sell any products elsewhere which are broadly equivalent to Gemstone sold on our Platform, you must ensure that the Price on the platform is commensurate to the sale price of such other products offered elsewhere (taking into account minor variations in pricing which is customary in the industry).

5.12 Please take particular care to ensure that you List all Goods at the correct Price. We will use reasonable endeavours to spot any obvious mistakes in the Price of Goods that you List (and where we spot these we will notify you as soon as reasonably practicable), but you acknowledge and agree that we do not have any obligation to do so, that we do not have the ability to manually check every Listing and that it is your sole responsibility to List all Goods fully and accurately and at the correct Price. You agree to be contractually bound to sell Goods at the specified Price. You also acknowledge that we may have an obligation to sell the same Goods on to our Customers at a price which is derived from or based on the Price and will therefore have limited ability to cancel or amend the relevant Contract. Accordingly, once a Contract is confirmed, and unless we agree otherwise in our absolute discretion, you will be legally bound to sell the Goods at the Price that you have offered to sell at.

5.13 Unless expressly agreed otherwise by us from time to time (in our discretion), you are not permitted to require purchases to be made on a bulk, wholesale or minimum order basis. Any Goods listed by you must be available to be bought individually.

5.14 If a hold request is made in relation to any Goods you have Listed, you must respond to that hold request within 60 minutes (where received during office hours) or within 60 minutes in the next working day (where received outside of office hours). For these purposes ‘office hours’ means 9am to 5pm in your place of business (per your primary registered address on the Platform) and ‘working day’ means Monday to Friday (Monday to Saturday in India) excluding national holidays. If you confirm a hold request, that means that you are guaranteeing availability, and fixing the Price (whether or not the market price increases or decreases), of the relevant Goods for at least 48 hours.

5.15 You must keep your stock list on our Platform up to date. That means that, among other things, you:

5.15.1 should List and keep Listed all Goods which you have for sale from time to time;

5.15.2 keep your Listings up to date and remove Listings promptly if you sell the Goods through any other sales channel; and

5.15.3 only List Goods which you are actually in possession of (save to the extent that they are consigned to us or third parties with our agreement) and have the right to sell at the time when your Listing is made (subject only to any availability limitations which are clearly and unambiguously made known in the Specification). You must ensure that you do not List any Goods which you do not own and possess, even if you expect to acquire ownership and possession in the future.

5.16 Without prejudice to your obligations under Clause 5.1.3, you acknowledge and agree that:

5.16. 1 if you do not update your Listings at least every 2 hours, we may remove non-updated Listings from the Platform; and

5.16.2 any Listings which are not updated for 48 hours will be automatically removed from the Platform.

5.17 Without prejudice to the foregoing provisions of this Clause 5 or to any other rights or remedies we may have, Nivoda reserves the right to:

5.17.1 reject or remove any Listing in whole or in part where we reasonably believe the Listing is in any way incomplete or inaccurate, infringes these Terms, or otherwise in our discretion; and/or

5.17.2 suspend, remove and/or ban you from the Platform:

5.17.2.1 if we reject 2 or more Listings in accordance with Clause 5.17.1 in circumstances where we believe you are not complying with our high standards for suppliers;

5.17.2.2 if you are in breach of these Terms;

5.17.2.3 if we have any other grounds to believe that your continued use of the Platform would or may prejudice us, our business, our reputation or our Customers; or

5.17.2.4 for any other reason in our discretion.

6. Supplier-initiated Sales

6.1 We may enable you, through the Platform, to log sales that you have agreed with a Customer. Where you do so, that sale is not confirmed until the Customer has paid Nivoda and we have notified you through the Platform that the sale is confirmed. At that point, a Contract shall be formed in an alternative (but just as legally binding) manner to that outlined in Clause 5.9.

6.2 For the avoidance of doubt, as between you and Nivoda, and unless Nivoda expressly agrees otherwise in writing, these Terms will apply to that Contract to the exclusion of any other terms which you may have agreed with a Customer (including, without limitation, any shorter payment terms which you may have agreed with a Customer).

7. Jewellery

7.1 You shall be solely liable for any clear manufacturing errors in any jewellery you manufacture and sell via the Platform (including, in the case of Custom Jewellery, a failure to meet the Customer’s designs and/or specifications) and agree to accept returns of the same and issue any applicable refunds in accordance with Clause 10.3 or alternatively (at our discretion) to remake any such jewellery, in which case you shall be solely liable for any associated costs. In the event of any dispute we shall, acting reasonably, have sole discretion to decide whether a manufacturing error has occurred.

7.2 We may from time to time contact you directly with designs for Custom Jewellery that our Customers wish to be manufactured. If you express your interest in manufacturing such Custom Jewellery, we shall enter into good faith discussions to agree a fee for such manufacture.

7.3 You hereby warrant that you will not, to the best of your knowledge and belief (having made reasonable enquiry), manufacture any Custom Jewellery that infringes any third-party rights, including any copyright or other rights that may subsist in the Custom Jewellery designs. If you reasonably believe that the Custom Jewellery design provided by the Customer may infringe such third-party rights, you must not agree to manufacture such Custom Jewellery. If you become aware of such an infringement once work on manufacturing the Custom Jewellery has already begun, you must notify us immediately and we will together agree how to proceed.

8. Your Sale and Compliance Obligations

8.1 You hereby warrant and undertake that:

8.1.1 you will List, sell and conduct yourself on the Platform in accordance with good industry practice and the highest standards and practices that may reasonably be expected of a supplier in your industry;

8.1.2 all Listings will be true, complete and accurate and all Goods sold by you on or through the Platform will conform to the Specification;

8.1.3 all Goods sold by you will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by you or made known to you;

8.1.4 your use of the Platform will comply with, and all Listings and sales of Goods by you will comply with, all applicable statutory and regulatory requirements in any relevant jurisdiction; and

8.1.5 you shall obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to List, supply and sell the Goods in accordance with these Terms.

8.2 You represent, warrant and undertake that you will at all times use our Platform in accordance with our Sourcing Protocol and, without prejudice to the contents of our Sourcing Protocol, that you will:

8.2.1 comply at all times with the Kimberly process to avoid trade in conflict Gemstone (for more information visit https://www.kimberleyprocess.com/);

8.2.2 comply at all times with the Responsible Jewellery Council Supply Chain Policy (for more information visit here)

8.2.3 to the extent that you are supplying Nivoda with precious metals, gold, silver and platinum group metals, purchase these from the LBMA Good Delivery List (for more information visit https://www.lbma.org.uk/)

8.2.4 ensure that all Goods Listed and sold on or through the Platform may be lawfully sold and are ethically sourced;

8.2.5 ensure that all Goods Listed and sold on or through the Platform have been obtained, processed, polished, provided and supplied in accordance with all applicable laws and under ethical and safe conditions (and, without prejudice to the foregoing, that they do not involve any child or forced labour, animal cruelty, individuals employed on less than minimum wage or in dangerous or hazardous workplaces);

8.2.6 clearly state the country of origin of any diamonds or coloured gemstones listed on the Platform; and

8.2.7 have and maintain in place effective anti-money laundering, anti-corruption, anti-bribery and anti-modern slavery policies and procedures.

8.3 Where your Listing relates to the supply of diamonds, whether of natural or lab-grown origin, you must ensure that the following information is stated on all invoices:

8.3.1 confirmation that you have complied with the World Diamond Council System of Warranties;

8.3.2 that the diamonds to which the invoice relates have been purchased from legitimate sources not involved in the funding of conflict, in compliance with United Nations Resolutions and corresponding national laws;

8.3.3 that you guarantee that the diamonds to which the invoice relates are conflict free;

8.3.4 that the diamonds to which the invoice relates are exclusively of natural origin and are untreated, based on your personal knowledge and/or written guarantees provided by the supplier of such diamonds; and

8.3.5 that the invoice does not relate to any natural or lab grown diamonds (or products containing diamonds) equal to or larger than 0.5ct which originated from, were manufactured in or transited through Russia, and therefore that the shipment is not subject to the restrictions established by Reg. EU 833/2014 (Article 3p).

8.4 Where your Listing relates to the supply of laboratory grown diamonds, this must be clearly stated in the relevant Listing and on all relevant invoices. You must also be able to demonstrate at our request and to our reasonable satisfaction that your processes and procedures are sufficient to ensure that there is no risk of cross-contamination between laboratory grown diamonds and diamonds of natural origin.

8.5 Where your Listing relates to jewellery, you must ensure that you do not carry out any hallmarking of any Goods to which the Listing relates. This will be the responsibility of Nivoda or the Customer, and we may remove any Listing which relates to hallmarked jewellery from the Platform.

9. Shipping, Delivery, Title and Risk

9.1 If you have Listed any Goods in India, you must, within 24 hours of the date the Contract is confirmed (being the date that the sale is confirmed on the Platform), deliver the Goods to our local office in India.

9.2 In respect of all other sales, unless otherwise agreed, you must deliver the Goods to the delivery location specified in the Platform within 24 hours. In some cases we may agree to provide you with a postage label for you to dispatch the Goods to us, but our doing so is not a condition precedent to your obligation to dispatch the Goods and any failure to do so will not excuse you from your obligation to deliver the Goods.

9.3 Title to Goods passes to us once we have a contractual obligation to pay you the Price. The risk in Goods shall only pass to Nivoda upon signed-for delivery at the given delivery address. You must ensure that all Goods sold by you are properly packed and secured in such manner as to enable them to reach their destination in good condition and unharmed. You agree and undertake to ensure that the Goods are fully insured (as a minimum for the Price of the Goods) during transit. If any Goods are damaged or lost in transit, you will be liable to refund Nivoda the Price immediately upon return of the Goods to you (regardless of when or whether your insurer pays you).

9.4 Each delivery of Goods shall be accompanied by a delivery note from or on behalf of the Supplier showing the Contract number, the date that the sale was made (as recorded in the Platform), and the type and quantity of Goods (together with any and all relevant certificates and laboratory reports).

9.5 Delivery of Goods must be evidenced by a signed delivery note. It is your responsibility to ensure that you or your nominated couriers obtain a signature upon delivery and we cannot be held liable for any Goods which are unaccounted for to the extent they have not been signed for.

9.6 Unless otherwise agreed in writing, all Listings must be dispatched as single packages and you must not deliver Goods in instalments.

9.7 If any Goods are not delivered by the applicable delivery date then, without limiting any other right or remedy we may have, we may:

9.7.1 refuse to take any subsequent attempted delivery of the Goods; and

9.7.2 terminate the relevant Contract with immediate effect, in which case you must immediately pay us a full refund.

10. Returns

10.1 You agree that returns are mandatory for all Goods you sell on or through our Platform in accordance with the following returns policy and any other returns policies communicated to you through the Platform from time to time:

10.1.1 for all Goods you sell to us, we will have the right to return the Goods to you:

10.1.1.1 within reasonable time after we have notified you of a return, a return notification will be max 45 days from the date of receipt of the Goods by Nivoda; and

10.1.1.2 for a full refund of the invoice value, which must be paid back to us within 7 days of receipt by you of the returned Goods.

10.1.2 for any Goods you sell to us which do not comply in all respects with the Listing and Specification (in each case, a Discrepancy), we will have the right to return the Goods to you:

10.1.2.1 within reasonable time after we have notified you of a return, a return notification will be max 45 days from the date of receipt of the Goods by Nivoda; and

10.1.2.2 for a full refund of the invoice value, which must be paid back to us within 7 days of receipt by you of the returned Goods.

In each case, a consignment of Goods may be returned to you in whole or in part.

10.2 Nivoda reserves the right to determine whether or not there is a Discrepancy in its reasonable discretion. Examples (for illustration only, and without limitation) of Discrepancies include:

10.2.1 the wrong items being delivered;

10.2.2 an inscription being incorrect or not as stated in the Specification;

10.2.3 there being a missing or inaccurate certificate;

10.2.4 Gemstone being treated or showing signs of having been treated, where such treatment is not expressly and unambiguously stated in the Listing; and

10.2.5 items being visibly milky or cloudy or not “eye clean”/EC, or being damaged or chipped (other than where expressly and unambiguously stated as such in the Specification).

10.3 Notwithstanding Clause 1, in the case of Goods which are Custom Jewellery you shall only be obligated to accept a return and refund the cost of such Goods where there is a clear manufacturing error.

10.4 Where we are entitled to return any Goods purchased from you as specified above, we shall notify you in writing (which may be through the Platform or via email) and arrange for the Goods to be sent back to you at the address registered to you on our Platform or any other address which you provide us not more than 1 day after the date of our return request.

11. Payments and Payment Terms

11.1 We will pay you the Price for any Goods which we have agreed to buy under a Contract subject to you issuing us with a valid invoice in accordance with the following requirements:

11.1.1 you must upload the invoice using the upload functionality provided through the Platform, in a supported format (jpeg, jpg, png, pdf, xls or xlsx);

11.1.2 all invoices should be issued in US Dollars (USD), Euros (EUR), British Pounds Stirling (GBP) or Indian Rupees (INR), except that all invoices originating in India must be issued in Indian Rupees (INR) (in each case the Specified Currency). Payment by us will be subject to any currency conversions carried out by us and/or our bank pursuant to Clause 3;

11.1.3 you must issue the invoice to, and/or mark the invoice payable by, the relevant Group Company, as we may direct from time to time;

11.1.4 invoices must clearly set out: (i) the certificate number attributable to the Goods (or in the case of non-certificated or melee Goods, the relevant stock ID); (ii) the Price; (iii) any VAT or other applicable sales tax and any TCS Payments as defined in Clause 11.2 below; (iv) any unique order/Contract number; (v) who the contract is payable by (Nivoda or the relevant Group Company, per Clause 11.1.3); the information set out in Clause 8.3 and 8.4 (as applicable); and (vi) if your invoice is addressed to the Nivoda Group Company in India, the GDT Number, PAN number and our address in India, in each case which we will provide to you;

11.1.5 your invoice should show any applicable sales tax, but cannot contain any other fees, surcharges, duties, broker fees, taxes or other amounts of any kind: the Price you List the Goods at must be the final amount payable in respect of them. We do not pay broker fees and do not allow brokers to refer suppliers to the Platform. Prices are inclusive of the costs of packaging, shipping and insurance;

11.1.6 your invoice must not contain or purport to incorporate (by reference or otherwise) any other terms and conditions. You hereby agree that any terms and conditions you seek to incorporate through an invoice will be of no effect; and

11.1.7 all invoices must be final (not pro forma or similar).

We shall not be liable in any way for any delay or failure to pay you where your invoice is not submitted strictly in accordance with the requirements of this clause.

11.2 If you are required by law to pay any amounts to any applicable tax authority in India for tax deducted at source (each a TCS Payment) then you are permitted to include such TCS Payment as a line item on the relevant invoice to us in accordance with this Clause 11, provided that as a condition to doing so you must: (i) provide us with proof of payment of the TCS Amount (i.e. a TCS Challan) by the 10th day of the month following the month in which the TCS Payment was levied; (ii) file quarterly returns for all TCS Payments within the statutory timelines and shall send us all relevant certificates for all applicable TCS Payments by the 30th of the month following the quarters ending June, September and December and by 30th of May for the Quarter ending March; (iii) ensure that the TCS Payment does not exceed the legal minimum; and (iv) otherwise provide us with all assistance, information and documentation which we may reasonably require from time to time to assist us in verifying the TCS Payments and recovering any refunds, amounts or tax credits available to us in relation to the TCS Payments.

11.3 We will settle invoices in the Specified Currency or USD (at our option), and where the Specified Currency is not USD and we settle the invoice in USD, we will pay you an amount which is equal to the Price as converted into USD according to the using of the closing spot rate last reported by the Nominated FX Provider as at the time the Contract is made. You acknowledge that payment by us of such amount is in full and final settlement of the Price, regardless of whether that is the full amount you receive after any such exchange rates are applied.

11.4 You can issue an invoice from the date a Contract is made (i.e. the date we give you final confirmation of a sale through the Platform). Provided your invoice is duly payable in accordance with these Terms and is provided to us in accordance with the provisions of this Clause 11, we will aim to settle such invoice on the second Friday from the date that we receive:

11.4.1 the relevant invoice, or

11.4.2 the relevant Goods (or in the case of an invoice issued in respect of multiple Goods, the last of them),

whichever arrives last.

11.5 For example, if your invoice and all of the applicable Goods are received during business hours on a Friday, we will aim to settle that invoice by the following Friday, or if your invoice and all applicable Goods are received during business hours on a Saturday, we will aim to settle that invoice in 13 days’ time. Any invoice and Goods received outside of business hours will be deemed to have been received at the start of the next day. For these purposes ‘business hours’ means 9am to 6pm in the location to which the invoice is addressed. We will use reasonable endeavours to meet the payment terms set out in this Clause 11 but we will not be liable for late delivery unless we are more than 3 working days late in paying you.

11.6 If we are entitled to any volume discounts in accordance with Clause 12, you must apply that discount as a line item against the amount due on your invoice.

11.7 Payment will be made to you by electronic transfer to such bank account as we have on file for you from time to time. If this is different from the bank details included in your invoice, please note that the bank details we have on file for you will prevail, and such invoice will be deemed to have been settled by payment to that account. It is your responsibility to ensure that your bank details are kept up to date on our system. If you wish to change or update the bank details we have on file for you, you must notify us of such changes by email to [email protected]. It will usually take 2 working days for this change to take effect. Such change is not effected until we notify you (by reply to your email) that the change has been made on our systems and may be conditional upon new or refreshed KYC or AML checks.

11.8 If Nivoda, acting reasonably, disputes any invoice or other statement of monies due, Nivoda shall promptly notify you in writing and the parties shall negotiate in good faith to attempt to resolve the dispute promptly. You shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. Where only part of an invoice is disputed, we will pay you the undisputed amount while we seek to resolve any disagreement as to the disputed amount. Your obligations to supply the Goods under any Contract shall not be affected by any payment dispute.

11.9 Nivoda may at any time, without notice, set off any of your liability to Nivoda against any liability Nivoda has to you, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these Terms.

11.10 For the avoidance of doubt, there is no minimum invoice value. Unless we expressly agree otherwise on a case by case basis, invoices shall be issued and paid in accordance with this clause, whether or not such invoices represent a ‘de minimis’ value of any kind.

12. Volume Discounts

12.1 We may offer volume discounts on invoices issued by you in respect of Goods sold through the Platform. If we introduce any volume discounts that you are eligible for (in our discretion) we will discuss and will agree terms with you relating to the sale.

13. Feed Centre

13.1 Listings you make on the Platform are by default only visible on our Platform, which facilitates business to business sales. Customers can however request that you provide them with access to a rolling feed of your Goods which are Listed on the Platform, which can then be displayed on their consumer-facing website(s) (Feed Access).

13.2 You can decide to grant or refuse Feed Access in your total discretion. You can also revoke Feed Access at your discretion.

13.3 We will take reasonable steps to ensure that Feed Access is as secure and confidential as possible – for example by preventing the disclosure or web searching of certificate numbers and taking contractual steps to prevent and discourage data scraping. However, you acknowledge that no online system is 100% secure and that Feed Access may pose certain risks including the scraping of data by unauthorised third parties. You agree that you must employ your own judgment and make your own risk assessment as to the cost/benefit of using Feed Access, and that your use of Feed Access is at your own risk. We will not be liable for any loss or damage or other liability that you may suffer as a result of your use and granting of Feed Access, though we will provide reasonable assistance to help you restore any loss where it is within our power to do so.

14. Repairs and Resizing

14.1 We may from time to time contact you directly regarding requests by Customers to repair or resize jewellery. Unless otherwise agreed in writing, where we agree to the price you communicate to us for such repair or resizing, you agree to carry out such work on these terms:

14.1.1 the repair or resizing (as applicable) shall be carried out in accordance with the specification provided to you by Nivoda;

14.1.2 the repaired or resized jewellery (as applicable) shall be returned to Nivoda within the timeframe communicated to you by Nivoda; and

14.1.3 you shall be solely liable to Nivoda for any loss or damage to the jewellery whilst in your possession.

15. Limitation of Liability

15.1 Nothing in these Terms shall limit or exclude Nivoda’s, or any Group Company’s, liability for:

15.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

15.1.2 fraud or fraudulent misrepresentation;

15.1.3 any matter in respect of which it would be unlawful to exclude or limit liability; or

15.1.4 any loss or damage to Goods while Nivoda or any Group Company has temporary possession of such Goods for any purpose, including where such Goods are consigned to us in relation to Nivoda Express or Nivoda Memo, or because we are conducting video or image services.

15.2 Subject to Clause 15.1:

15.2.1 Nivoda and each Group Company shall under no circumstances whatsoever be liable to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of opportunity, or any other indirect or consequential loss arising under or in connection with these Terms; and

15.2.2 Nivoda’s and any Group Company’s total aggregate liability to the Supplier in respect of any and all claims and other losses or liabilities (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) arising under or in connection with:

15.2.2.1 any Contract shall in no circumstances exceed the Price of the Goods that were the subject of that Contract; and

15.2.2.2 these Terms generally (but not a Contract specifically), shall in no circumstances exceed the higher of: (i) the Price of the Goods that were subject to the last Contract made between Nivoda and the Supplier in accordance with these Terms (if any); or (ii) £100.

16. Term and Termination

16.1 These Terms last for so long as you are a Supplier and apply to any Contract made between you and us.

16.2 You may terminate these Terms by deleting your account on the Platform, provided you have no current Contracts to fulfil.

16.3 Either party may terminate these Terms and all extant Contracts made under them if the other party commits a material breach of these Terms and, where remediable, fails to remedy such breach within 30 days.

16.4 We may terminate these Terms and remove you as a user of the Platform at any time in our discretion.

16.5 On termination or expiry of these Terms:

16.5.1 any outstanding payments to either party by the other shall become due and payable;

16.5.2 the other party must erase all the other party’s Confidential Information from its computer systems (to the extent possible); and

16.5.3 you must immediately cease using the Platform and may not (yourself or through an affiliate or any connected person) use the Platform without Nivoda’s written consent; and

16.5.4 any clause of these Terms which is expressed to or which by its nature must be intended to survive termination or expiry shall so survive.

17. Indemnity

17.1 You shall indemnify, defend, and hold harmless Nivoda and its Group Companies, employees, suppliers, Customers, or other partners from any losses, costs, damages, liabilities, and expenses, arising out of:

17.1.1 any material breach by you of these Terms;

17.1.2 any third-party claim related in any way to your conduct in relation to your use of the Platform;

17.1.3 any claim made against Nivoda or its Group Companies by a Customer, to the extent that such claim relates to or arises out of any act, omission or statement made by you or on your behalf; and

17.1.4 unauthorised access to or use of the Platform through your account.

18. Communications Between Us

18.1 When we refer to “in writing” in these Terms, this includes email, messages sent by WhatsApp, messages sent via the online form on the Website or via the communication system on the Platform.

18.2 Any notice or other communication given under or in connection with these Terms must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, email, or using the online form on the Platform.

18.3 A notice or other communication is deemed to have been received:

18.3.1 if delivered personally, on signature of a delivery receipt;

18.3.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or

18.3.3 if sent by email (including the online form on the Platform), at 9.00 am the next working day after transmission.

For these purposes ‘working day’ means Monday to Friday (Monday to Saturday in India) excluding national holidays in the place where the notice is sent.

18.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email or other electronic communication, that such communication was sent.

18.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

19. Assignment

19.1 Nivoda may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms.

19.2 The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Terms without the prior written consent of Nivoda.

20. Confidentiality

20.1 You undertake that you shall not disclose to any person any information of a sensitive, proprietary or confidential nature concerning our Platform, or the business, affairs, customers, prices, clients or suppliers of Nivoda (together Confidential Information), except as permitted by Clause 2.

20.2 You may disclose Confidential Information:

20.2.1 to your employees, officers, representatives or professional advisers who need to know such information for the purposes of exercising your rights or carrying out your obligations under these Terms, provided that such recipients are bound by confidentiality obligations at least as stringent as set out herein; and

20.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that you have given us reasonable prior written notice of such disclosure (to the extent permitted by law).

20.3 You must not, and hereby undertake not to, use Confidential Information for any purpose other than to exercise your rights and perform your obligations under or in connection with these Terms.

21. Force Majeure

21.1 Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its 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 obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 2 months, Nivoda may terminate any and all Contracts formed by these Terms by giving 30 days’ written notice to the Supplier.

22. Entire Agreement

22.1 These Terms, together with the other terms, conditions and policies referred to herein, constitutes the entire agreement and understanding between Nivoda and the Supplier relating to the sale by you and purchase by Nivoda of the Goods. These Terms supersede any prior agreement, draft agreement, arrangement or understanding (whether in writing or not and whether express or implied) between the parties relating to the same.

22.2 The Supplier acknowledges and agrees that it is not entering into these Terms or any Contract in reliance upon, and hereby waives any right it might otherwise have to rely upon, any term communicated by, endorsed upon, delivered with or contained in the Platform or any documents other than these Terms and the documents referred to herein.

23. Waiver

23.1 No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

24. Severance

24.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms. If any provision of these Terms is deemed deleted under this Clause 24 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

25. No Partnership or Agency

25.1 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

25.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

26. Rights and Remedies

26.1 Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

27. Third Party Rights

27.1 We both agree that, save for the Group Companies, no third party shall have any right to enforce any of the provisions of these Terms.

28. Governing Law

28.1 These Terms, each Contract, and their subject matter and formation (and any non-contractual disputes or claims relating thereto) are governed by English law.

28.2 The Supplier agrees to the exclusive jurisdiction of the courts of England and Wales. This will not prevent Nivoda from enforcing these Terms and any Contract through any courts in the jurisdiction(s) where the Supplier is based or carries on its business.

SCHEDULE 1

SPECIFICATION DETAILS

This schedule sets out the requirements for the Specification of Goods. For further information about the nature, format and scope of information to be provided please visit our support pages.

Part 1 – Mandatory Information

Each Listing must include, in respect of any and all Goods which are subject to that Listing, the following information:

1. The stock number for the Goods.
2. A complete and accurate description of the Goods, including the shape, size and measurements.
3. For certificated Goods, the name of the relevant laboratory and the applicable certificate number.
4. The physical location of the Goods.
5. The availability status of the Goods. You must have the right to sell all Goods you List, but you can mark Goods as either: guaranteed available, on memo or on hold (or subject to prior sale). You can also indicate that Goods will be available but are currently in transit or at a laboratory for certification, as this is clearly specified in your Listing.
6. The Price of the Goods (which should be expressed: (i) in USD; and (ii) in terms of the price per carat and the total Price).
7. Any other information which is marked as mandatory from time to time on the Platform.

Part 2 – Additional Mandatory Information for Gemstone Listings

1. A complete and accurate description of the cut, colour, clarity, polish, symmetry, fluorescence intensity, fluorescence colour and depth (in percent) of the Goods.
2. Whether or not the Gemstones have been treated (and if so the nature of such treatment). For these purposes ‘treatment’ means any form of chemical process or other treatment which is designed to enhance the appearance, colour, clarity or other quality of a diamond, and ‘treated’ means having undergone treatment.
3. Whether the Gemstones are lab grown (in which case you must List all lab grown Gemstones under a separate user account).

Any other information which is marked as mandatory for Gemstone Listings from time to time on the Platform, including, where the Listing relates to diamonds of natural origin, the information set out in clause 8.3.

Part 3 – Additional Mandatory Information for Jewellery Listings

1. Whether the jewellery is finished or unfinished.
2. The composition of the jewellery, clearly setting out which precious metals feature in the jewellery and any other allergens.

Any other information which is marked as mandatory for jewellery Listings from time to time on the Platform.

Part 4 – Optional Information

1. The provision of the following further descriptive information relating to Goods is, subject to point 2 below, optional:
   1.1. any observations of the Goods including whether it has noticeable imperfections or is “eye clean”/EC, the shade and whether a diamond is “milky”;
   1.2 any fancy colour, intensity, colour or colour overtone;
   1.3 girdle, girdle percentage and girdle condition;
   1.4 culet size and condition;
   1.5 crown height and angle;
   1.6 pavilion height and angle;
   1.7 inscription;
   1.8 any certificate comment;
   1.9 any black inclusion, white inclusion, or open inclusion;
   1.10 the key to symbols;
   1.11 the mine of origin;
   1.12 mine to market tracking; and
   1.13 Canada mark eligibility.
2. Notwithstanding point 1 of this Part 4, you agree and acknowledge that: (i) you should always try to include as much detail as possible in your Listings; and (ii) if any information listed in point 1 of this Part 4 may reasonably be regarded as necessary or integral to the description of any particular Goods (for example because it would or may affect a Customer’s decision of whether or not to buy such Goods), then such information will be deemed to be mandatory information which must be provided pursuant to Part 1 point 2 above.