This Consignment Agreement (the "Agreement") is entered into between Markette Six, LLC ("Consignee"), and you ("Consignor", and together with Consignee, the "Parties", and each, a Consignment of Goods."Party"). This Agreement specifies the terms under which Consignor may provide gemstones, jewelry, watches, or other similar items to Consignee on a consignment basis, for sale by Consignee of behalf of Consignor.
Read this Agreement carefully. By clicking "I Agree," or otherwise manifesting assent to this Agreement by creating an account with Consignee, Consignor agrees to be bound by the terms of this Agreement and the terms and conditions of Consignee's www.markettesix/page/privacy-policy, which is hereby incorporated in this Agreement by reference and certifies that Consignor is at least 18 years old or older. If Consignor does not agree to (or cannot comply with) all of the terms of this Agreement, Consignor will not provide Products to Consignee. The person executing this Agreement on behalf of Consignor represents that he or she is an authorized representative of Consignor capable of binding Consignor to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Consignment of Goods.
- Consignment Request. Consignor will submit to Consignee a Consignment Request that accurately describes the gemstone, jewelry, or watch that Consignor wishes to deliver to Consignee for consignment (the "Product"). Consignee will review the Consignment Request and, within 5 business days, notify Consignee via electronic mail that it accepts or rejects the Consignment Request.
- Consignment for Resale. If Consignee accepts Consignor's Consignment Request, Consignor will, within 7 calendar days of notification of acceptance by Consignee, place the Product at Consignee's location on a consignment basis. Consignor will provide and deliver the Product to Consignee's location at its sole expense, FOB Consignee. The delivery and sale of the Product will be on a consignment basis, in accordance with the provisions of this Agreement.
- Inspection by Consignee.
- Consignee will only accept Products that are authentic, clean, and in excellent condition. Any defects will be brought to Consignee's attention by Consignor before delivery of the Products.
- Consignee will inspect all Products delivered by Consignor immediately upon such delivery. Consignee will have each Product evaluated by a certified expert in the Product's field. Any Product that fails to meet Consignee's quality and authenticity standards ("Nonconforming Goods"), a determination to be made wholly at Consignee's discretion, will be returned to Consignor, and Consignor will be charged $50 and cost of insured shipping to cover the evaluation and secure storage. Notwithstanding the foregoing, if any Product provided to Consignee under this Agreement is found to be counterfeit, Consignee reserves the right to confiscate such Product and provide the Product and any other information (including Consignor's personal information) requested by the person, government authority, or agency looking to trace the origin of such counterfeit Product.
- If Consignee desires to offer the Product on consignment, Consignee will, within 10 calendar days of its receipt of the Product, prepare and deliver an offer sheet to Consignor via electronic mail containing a summary of the evaluation of the Product, Floor Price, Commission Rate, and any other terms relevant to Consignee's consignment of the Product ("Consignment Offer").
- Within 3 calendar days of receipt of the Consignment Offer, Consignee will notify Consignor via electronic mail of its acceptance or rejection of the Consignment Offer. If Consignor rejects the Consignment Offer or fails to respond to Consignee's email within 5 calendar days, the Product will be returned to Consignor, at Consignor's expense, within ten calendar days of Consignee's receipt of Consignor's rejection or Consignor's failure to respond, and Consignor will be charged $50 and cost of insured shipping to cover the evaluation and secure storage. If Consignor accepts the Consignment Offer, Consignee will list the Product for sale on the Website (thereafter "Consigned Good") within three business days of its receipt of Consignor's acceptance ("Consignor's Acceptance").
- Terms of Agreement Prevail Over Consignor's Consignment Request. The terms of this Agreement prevail over any terms or conditions of Consignor contained in any other documentation and expressly exclude any general terms and conditions contained in any document issued by Consignor, including any Consignment Request or acceptance of Consignment Offer, regardless of whether or when Consignor has submitted such documents. Fulfillment of Consignor's Consignment Request does not constitute acceptance of any of Consignor's terms and conditions and does not serve to modify or amend any Consignment Offer or this Agreement.
Right to Sell Consigned Inventory
- Right to Sell. Consignor hereby grants to Consignee the right to sell the Consigned Good on behalf of Consignor pursuant to this Agreement during the Term as defined in Section 8.1. Upon Consignor's acceptance of the Consignment Offer, Consignee will use commercially reasonable efforts to make the Consigned Good available for purchase on Consignee's website located at www.markettesix.com (the "Website").
- Brand Rights. Consignor grants Consignee the right to use any of Consignor's logos, trademarks, likenesses, product images, and other reasonable intellectual property on the Consignee's website and any marketing materials provided by Consignee for any purpose consistent with this Agreement.
Title and Risk of Loss.
- Title Retained by Consignor Consignor will retain title to the Consigned Good unless and until it is purchased by Consignee at the time of resale to a Customer. When Consignee resells the Consigned Good to a Customer, title to the Consigned Good will pass from Consignor to Consignee and immediately thereafter from Consignee to the Customer.
Risk of Loss Passes Upon Delivery.
- Consignor assumes the risk of loss, theft, or damage to the Products and Consigned Goods until the same are delivered to Consignee.
- Notwithstanding Section 3.1, Consignee assumes the risk of loss, theft, or damage to the Products and Consigned Goods while in its possession or control.
- True Consignment. This Agreement is intended to be a true consignment agreement and the consignment created under this Agreement is intended to be a true consignment, where title to the Consigned Good remains with Consignor until purchased by Consignee immediately before being resold to a Customer on terms acceptable to Consignor.
- Price. Consignee agrees to maintain the Floor Price, and will accept nothing less than such Floor Price for any Consigned Good sold, unless otherwise agreed upon in writing by the parties. Consignor, with notification to Consignee, may change the Floor Price for any Consigned Good by submitting a request to Consignee requesting a new Floor Price. Notwithstanding the foregoing, Consignee reserves the right, in its sole discretion, to increase the sale price of any Consigned Good.
- Payment Amount. For the services provided by Consignee to Consignor under this Agreement, Consignor will pay Consignee an amount (the "Consignee Share") equal to the Commission Rate specified in the Consignment Offer multiplied by the actual sale price of the Consigned Good ("Actual Sale Price"), the Actual Sale Price being the price that the buyer paid for the item minus any additional fees, such as the appraisal fee. The difference between the Actual Sale Price and the Consignee Share (the "Consignor Share") will be paid to Consignor.
Payment Timing. Payment to Consignor will occur on the following schedule
- For all Consigned Goods that clear at least two business days before the fifteenth of the current month, Consignee will transmit payment to Consignor on the fifteenth of the current month. For all Consigned Goods that clear in the period between the fifteenth day of the current month and two business day before the last day of the current month, Consignee will transmit payment to Consignor on the last day of the current month. For all Consigned Goods that clear after the last business day of the current month, Consignee will transmit payment to Consignor on the fifteenth day of the next month. For purposes of this Section 6.2, "clear" means the Consigned Good has been delivered to the Customer and Customer has not shipped the Consigned Good for return to Consignee within the time period for returns set forth in Consignee's return policy located at www.markettesix.com/returns.
- Notwithstanding the foregoing, in no event will Consignee be obligated to make any such payments to Consignor unless and until (i) the time period for set forth in Consignee's return policy located at www.marekettesix.com/returns has expired for any such sale, and (ii) Consignee receives the proceeds from any such sale.
- Taxes. All amounts paid to Consignor under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Consignee under this Agreement. Consignor is responsible for all charges, costs, and taxes; provided, that, Consignor is not responsible for any taxes imposed on, or regarding, Consignee's income, revenues, gross receipts, personnel, or real or personal property or other assets.
- Return of the Consigned Goods. The Consigned Goods will at all times be subject to the direction and control of Consignor. At any time after the expiration of the Term, Consignor may, by written notice to Consignee, request return of the Consigned Goods. All such returns will be at Consignor's expense and risk of loss. In the event Consignor requests return of Consigned Goods pursuant to termination of this Agreement by Consignor before the expiration of the initial 120 day term described in Section 8.1, Consignee will charge Consignor a fee of one hundred dollars ($100) per Consigned Good to cover Consignee's cost for inventory holding, cataloging, and photographing the Consigned Good. All such returns will at Consignor's expense and risk of loss.
- Term. This Agreement will be effective from the time Consignor clicks "I Agree" or otherwise affirmatively manifests assent to this Agreement ("Effective Date"), and, unless earlier terminated pursuant to Section 8.2, will continue in full force and effect until 120 days after Consignor accepts the Consignment Offer (the "Term"). The Term may be extended upon the Parties' mutual written agreement.
- Termination. Either party may terminate this Agreement, at any time, without cause, upon thirty days written notice to the other party. Upon termination of this Agreement by either party, any Consigned Goods in Consignee's possession will be returned to Consignor pursuant to Section 7 of this Agreement.
- Effect of Termination. Termination will not affect either party's obligations for undisputed payment accrued prior to the effective date of termination or warranties which have not yet expired.
- Relationship of the Parties. Consignee's relationship with Consignor will be that of an independent contractor. Nothing in this Agreement is to be construed to create any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
- Definition and Exclusions. Each party hereby acknowledges that it ("Receiving Party") may have access to confidential and proprietary information of the other party ("Disclosing Party") including, without limitation, business information, financial information, and customer information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information does not include (i) information already known outside the scope of this Agreement, (ii) information in the public domain through no wrongful act of the Receiving Party, or (iii) information received outside the scope of this Agreement from a third party not under a confidentiality obligation to the Disclosing Party.
Duties. The Receiving Party will
- only use the Disclosing Party's Confidential Information to perform its obligations pursuant to this Agreement,
- not disclose the disclosing party's Confidential Information to any person or entity, except to its own employees or agents having a "need to know" (and who themselves are bound by similar nondisclosure restrictions).
- Upon termination, or at any time upon request by the Disclosing Party, the Receiving Party will return all Confidential Information in its possession or control or, at the sole discretion of the Disclosing Party may otherwise verify its destruction or deletion to the Disclosing Party.
- Representations and Warranties. Consignor represents and warrants to Consignee that during the term of this Agreement (i) Consignor has good title to the Products and Consigned Goods, free of all liens, claims, and encumbrances; (ii) the Products and Consigned Goods are as represented in the Consignment Request and not counterfeit or knock offs; (iii) the Products and Consigned Goods will conform in all material respects, with the Product and Consigned Goods specifications set forth on the labeling of the Product and Consigned Goods; and (iv) the Products and Consigned Goods do not violate, infringe, or misappropriate any intellectual property or proprietary rights of any third party.
Indemnification. Consignor will indemnify, hold harmless, and defend Consignee and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses arising out of or relating to any claim of a third party alleging or relating to:
- a breach or non-fulfillment of any representation, warranty, or covenant under/representation or warranty set out in this Agreement by Consignor;
- any negligent or more culpable act or omission of Consignor (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
- any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Consignor; or
- any failure by Consignor to comply with any applicable laws.
Limitation of Liability.
- No Liability for Consequential or Indirect Damages. IN NO EVENT IS EITHER PARTY OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Maximum Liability for Damages. IN NO EVENT WILL CONSIGNEE'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO CONSIGNEE FOR THE PRODUCT OR CONSIGNED GOOD GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE CONSIGNOR'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Survival. The following Sections will survive the termination or expiration of this Agreement: 1.3, 3, 4, 7, 8, 9, 10, 11, 12, 13, and 14.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") must be in writing and addressed to Consignee at firstname.lastname@example.org and to Consignor at the email address set forth in the Consignment Request. All Notices must be delivered by e-mail with confirmation of transmission.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized representative of the Party waiving its right.
- Equitable Remedies. Each Party acknowledges and agrees that (a) a breach by either Party of any of its obligations under Section 10 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach by such Party of any such obligations, the other Party will be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 14.7.
- Assignment. Consignor will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Consignee. Any purported assignment or delegation in violation of this Section is null and void. No permitted assignment or delegation relieves Consignee of any of its obligations under this Agreement. Consignee may assign any of its rights or delegate any of its obligations without the consent of Consignor.
- Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- Choice of Law and Forum. This Agreement will be governed by and construed in accordance with the Laws of the State of Oregon without reference to the conflicts of law provisions thereof. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court in the State of Oregon, County of Multnomah, and the parties irrevocably consent to the personal jurisdiction of such courts. Each party hereby waives any objection or defense of personal jurisdiction or forum non-conveniens it may otherwise possess.
- Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including the following force majeure events (each a "Force Majeure Event"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) requirements of applicable law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; and (h) shortage of adequate power or transportation facilities.