CONSIGNOR AGREEMENT
|
CONSIGNOR AGREEMENT1. RECITALSTHE NM LUXURY SHOP is engaged in the marketing and sale of designer clothes, accessories and shoes, etc. Consignor owns or controls and has the right to sell certain items, described and itemized on THE NM LUXURY SHOP’s online and other forms, or collected from Consignor (the "Consignor") by an employee of THE NM LUXURY SHOP as part of its consignor service (collectively, the "Property"). Consignor wishes to sell that Property. Consignor desires that the Property be sold on consignment by THE NM LUXURY SHOP, and THE NM LUXURY SHOP wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to THE NM LUXURY SHOP, subject to these Consignment Terms (the "Agreement"). Therefore, in consideration of the mutual premises and covenants contained in this Agreement, the receipt and sufficiency of which is acknowledged, and expressly subject to the provisions of THE NM LUXURY SHOP’s Terms of Service (see THE NM LUXURY SHOP’s website at), which terms may be amended from time to time at THE NM LUXURY SHOP’s sole discretion), the parties agree as follows: 2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCEConsignor makes the Property available to THE NM LUXURY SHOP on a consignment basis and THE NM LUXURY SHOP accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to THE NM LUXURY SHOP when THE NM LUXURY SHOP takes physical possession of the Property. Consignor retains all risk of loss or damage to the Property until that time; provided, however, that if Consignor uses THE NM LUXURY SHOP ’s approved method of shipment to THE NM LUXURY SHOP, specifically using THE NM LUXURY SHOP‘s label and current integrated shipping arrangement (the "Label"), then THE NM LUXURY SHOP will insure or arrange for a third party to insure the Property against loss or damage in transit, up to a maximum of $10,000 per shipment. A "shipment" means items of Property shipped together under one Label. THE NM LUXURY SHOP shall insure the Property in such amounts and against such risks as to which such goods are customarily insured, including insurance for theft and damage while in THE NM LUXURY SHOP’s possession, and shall provide evidence of such insurance coverage to Consignor upon request. If the Property is damaged or lost while in THE NM LUXURY SHOP’s possession, then a Property Sale, as defined below at Section 7, will be deemed to have occurred and THE NM LUXURY SHOP will reimburse Consignor in the amount of Consignor's Commission (also defined below), based on the damaged or lost Property's Net Selling Price(s), as defined at Section 8, and as determined solely by THE NM LUXURY SHOP. 3. ACCEPTANCE OF PROPERTY; CONDITION OF ITEMSTHE NM LUXURY SHOP only accepts Property: it determines in its sole discretion to be in very good to excellent condition; is listed in its Designer Directory on its website; it determines in its sole discretion to be authentic; and that is made available to THE NM LUXURY SHOP in full compliance with the representations and warranties Consignor makes pursuant to this Agreement ("Acceptance"). Upon receipt, THE NM LUXURY SHOP will evaluate the Property to determine its authenticity, quality and value. The condition of such items will affect their valuation. Property that does not meet THE NM LUXURY SHOP’s quality standards will not be Accepted and will be returned to Consignor at Consignor's expense (see "Unauthenticated Items" and "Consignment Period and Return of Property" below), or donated to an entity of THE NM LUXURY SHOP’s choice, or returned to consignor if a printed, completed RETURN MY ITEMS authorization form was sent in with the consignment. We do not accept any items with a starting price of under $40. Unless it is a children’s item and the minimum for a children’s item is $20 4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMSConsignor is responsible for ensuring the authenticity of all items offered for consignment. In the event THE NM LUXURY SHOP cannot determine the authenticity of any item of Property offered or provided for consignment, it shall have the right in its sole discretion to refuse to accept the item. In the event that THE NM LUXURY SHOP determines at any time that an item of Property is counterfeit, THE NM LUXURY SHOP will notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item THE NM LUXURY SHOP determines to be counterfeit will not be returned to Consignor and will be destroyed. 5. CONSIGNMENT PERIOD AND RETURN OF PROPERTYConsignment Period" for an item of Property begins on the Effective Date and ends 120 days thereafter, whether or not such Consignment Period extends beyond the term of this Agreement. Consignor may request THE NM LUXURY SHOP return all or some of the Property if it is not sold within the 120 day period. Request must be made in writing at the time Property is initially shipped using a printed, fully completed RETURN MY ITEMS authorization form. For such Return Request, THE NM LUXURY SHOP will charge $7.50/item to cover shipping/handling charges and there is a $45 minimum. 6. EFFORTS TO SELL; PRICESubject to Consignor's performance of its obligations under this Agreement, THE NM LUXURY SHOP will display on its site and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that: (a) THE NM LUXURY SHOP in its sole discretion will determine the initial selling price for the Property (the "Initial Sale Price"), based on its evaluation of the Property together with its determination of the current market price for each specific item of Property. Consignors may choose to select their starting prices for their items. Otherwise, each item will be researched by THE NM LUXURY SHOP and competitively priced to sell quickly. (b) THE NM LUXURY SHOP may offer price reductions or discounts during the Consignment Period, at its sole discretion and without notice to Consignor-
Standard reductions will be 15% if an item sells between 61-90 days, 25% if an item sells between 91-120 days. Items not selling within 120 days will be removed from Consignor's inventory and either be donated to an entity of THE NM LUXURY SHOP’s choice, or returned to Consignor if a printed, completed RETURN MY ITEMS authorization form was sent in with the consignment. Applicable return fees will apply. No items will be returned without fully completed proper documentation as stated above.
7. TITLE TO PROPERTYA "Property Sale" shall be deemed to have occurred where an item of Property is sold by THE NM LUXURY SHOP and not returned within the period specified THE NM LUXURY SHOP’s Return Policy; lost or stolen from THE NM LUXURY SHOP’s inventory; damaged or destroyed while in THE NM LUXURY SHOP’s possession. Title to and ownership of the Property will remain with Consignor until a Property Sale occurs or items expire at 120 days without a printed, completed RETURN MY ITEMS authorization form on file.
PAYMENT AND COMMISSIONSUpon a Property Sale, the net selling price upon which all Commissions are based shall equal the price of the item of Property sold, less applicable discounts, excluding taxes and shipping (the "Net Selling Price"). Consignor acknowledges and agrees it will receive the following Commission (as defined below, the "Commission") based on the Net Selling Price of an item of Property: (a) Commission in an amount equal 60% for items listed under $5,000 and 65% for items listed at or above $5,000. THE NM LUXURY SHOP may at any time and in its sole discretion temporarily increase the Commission from time to time for promotional reasons. The Commission shall be Consignor's sole compensation under this Agreement. The timing of processing Commission payments will be typically be completed the 15th of the following calendar month after the sale. In the event of any dispute between the Parties, Commissions will not be paid until such dispute is resolved. Any final value fees incurred from 3rd party website sales (ie Amazon, Ebay, Google) are split between consignor and THE NM LUXURY SHOP. 1. TERMS AND TERMINATIONTerm: This Agreement will commence as of the Effective Date and will continue until the completion of the Services, or 120 days after initial receipt of Property. Termination: Either Party may terminate this Agreement at any time, for any reason. Termination shall be effective when either Party serves written notice thereof on the other Party. Costs listed above under Section 5, Consignment Period and Return of Property, will apply. 2. NO ASSIGNMENTConsignor may not assign, transfer, or delegate any of its rights under this Agreement without THE NM LUXURY SHOP’s prior written consent. Any prohibited assignment shall be void. 3. NO PROPERTY WARRANTIESTHE NM LUXURY SHOP does not make any representation or warranty, expressed or implied about any item of Property, except to the extent a warranty is required by law and cannot be disclaimed. In no event shall THE NM LUXURY SHOP’s liability exceed the actual amount received for selling consignor’s Property. 4. CONSIGNOR’S REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATIONConsignor hereby represents and warrants that it has good and marketable title to each item of Property and has the right to consign and sell the Property, none of which is subject to any liens or other encumbrances, and further represents and warrants that the Property does not infringe upon or violate any trademark, copyright, or other proprietary right of any third party, any state or federal law, or any administrative regulation. Consignor hereby agrees to indemnify and hold THE NM LUXURY SHOP harmless from all damages, suits, litigation, awards, and costs, including but not limited to attorneys' fees and costs, as a result of or arising out of in any way THE NM LUXURY SHOP display or sale of the Property for any reason whatsoever, including but not limited to civil or criminal suits over authenticity, legality, ownership, infringement of copyright or trademark, or any other claim or litigation. 5. CHOICE OF LAW AND FORUMThis Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions. Each Party irrevocably submits to the exclusive personal jurisdiction of the federal and state courts located in Los Angeles County, California as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Los Angeles County, California such personal jurisdiction shall be nonexclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction. 6. ENTIRE AGREEMENTThis Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. 7. WAIVERNo waiver by any party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 8. SEVERABILITYIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 9. SURVIVAL OF TERMS AFTER AGREEMENT ENDSNotwithstanding any other provision or general legal principles to the contrary, any provision of this Agreement that imposes or contemplates continuing obligations on a Party will survive the expiration or termination of this Agreement. |