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CONSIGNMENT/SALES AGREEMENT

THE TERMS AND CONDITIONS IN THIS CONSIGNMENT/SALES AGREEMENT (THE “AGREEMENT”) CREATE A CONTRACT BETWEEN YOU (“YOU” OR “YOUR”) AND D|+ SIGN KELCHER, LLC. AND ITS AFFILIATES (“D|+ SIGN KELCHER”, “WE”, “US” OR “OUR”). PLEASE READ THIS AGREEMENT CAREFULLY. 

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN JURY TRIALS, IN COURT PROCEEDINGS OR CLASS ACTIONS TO RESOLVE DISPUTES.

YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IF YOU WISH TO CONSIGN OR SELL GOODS ON D|+ SIGN KELCHER MARKETPLACE, AND BY CLICKING “AGREE” YOU CONFIRM THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. 

Our Terms of Service located at: https://www.dsignkelcher.com/terms (“TOS”), are incorporated by reference and made a part of this Agreement to which You are agreeing, and such TOS additionally apply to any of Your and Our activities under this Agreement.  

 

ONCE YOU AGREE TO THIS AGREEMENT, IT WILL REMAIN IN EFFECT AND GOVERN ALL TRANSACTIONS BETWEEN YOU AND D|+ SIGN KELCHER UNTIL YOU OR WE TERMINATE IT PURSUANT TO SECTION 5 OF THIS AGREEMENT.

 

1. OVERVIEW; ACCOUNT CREATION

 

We market and sell (and provide a marketplace for marketing and sale of) luxury designer items, jewelry, watches, fine art, home goods and other goods. To sell an item with Us, You first need to contact us via e-mail and provide your contact and payment information. Once we get back with you, You can request that We (i) sell the items that You ship to Us or that We have collected from You (collectively, the “Property”) on a consignment basis (“Consignment”), (ii) subject to Our eligibility requirements, purchase the Property from You (“Get Paid Now”), (iii) trade in the Property in exchange for Site credit (a “Trade-In”), or (iv) transact a combination of Consignment, Get Paid Now, or Trade-In transactions with respect to Your Property.

 

2. CONSIGNMENT

 

If You choose Consignment for Your Property, You, not D|+ Sign KelCHer, will still own the Property (the “Consigned Property”), even after You deliver the Consigned Property to Us. After We receive or pick up the Consigned Property from You, We will send You an email confirming the items of Consigned Property have been received. Once We have further evaluated, inspected, and authenticated the item(s), You will be able to log into Your “MySales” page through Our website, applications, or other services (collectively, the “Service”) to view the status of Your items and the list price(s) assigned to those Accepted Items (as defined in Section 2(b)(ii) below)). The Accepted Items will then be processed and listed as available for sale on the Service and, at Our discretion, may also concurrently be displayed and available for purchase at one of Our retail store locations. Please note that all list prices are determined at Our sole discretion unless We have previously agreed otherwise with You in writing.

 

(a) Delivery Of Consigned Property; Risk Of Loss

(i) We accept the risk of loss or damage to Consigned Property only when (i) We take physical possession of the Consigned Property, or (ii) You use Our approved, pre-paid shipping label and approved method of shipment to ship Your Consigned Property and the label is processed into Our approved shipping vendor’s tracking system and You actually provide the Consigned Property to the vendor (“Approved Transit”). A “Shipment” means items of Consigned Property that are placed with a carrier of vendor and shipped together under one Approved Transit shipping label.

(ii) If an item of Consigned Property is damaged, stolen, or lost while in Our possession or during Approved Transit, it will be treated as Sold (as defined in “Title to Property” at Section 2(e) below) and We will pay You a Commission (defined in “Commissions and Payment for Consigned Property” at Section 2(f) below) on that item. The Commission will be based on the damaged, stolen, or lost item’s estimated Net Selling Price (defined in Section 2(f) below), which will be determined solely by Us. This payment represents the amount You would have received in the normal course of a sale, less any discounts or promotions applied under this Agreement, and the payment will be processed and paid under the regular schedule of Commission payments as described in Section 2(f) below. 

(iii) In the event You request return of an item of Consigned Property, and it is damaged during shipping, You must notify us and then return such damaged item to Us in compliance with Our shipping instructions and at Our expense along with any evidence We request to validate Your damage claim. If We can validate, and ultimately agree with, Your damage claim, We will provide the Commission. 

Unless otherwise prohibited by law, this remedy will constitute Your sole remedy and entire recourse against Us for Consigned Property that is damaged, stolen, or lost and is in lieu of any other remedy otherwise available as a matter of law or equity. 

 

(iv) Any claim by You for a damaged, stolen, or lost item must be made to Us in writing within sixty (60) days of the day that You became aware or should have reasonably become aware of the alleged damage, theft, or loss. In the case of a damaged item, We may have minor damage to an item repaired by a certified repair service within a commercially reasonable amount of time and to re-list the item for sale by You at a price We determine.

(b) Consigned Property Acceptance Conditions 

(i) Upon receipt of an item of Consigned Property, We will evaluate it to determine, in Our sole discretion, its authenticity, quality, and value. The item’s condition will affect the valuation and pricing.

(ii) We only accept Consigned Property that We think is appropriate for resale on the Service. We reserve the right to accept or reject an item for any reason, but generally to be accepted, the Consigned Property must be at a minimum (in Our sole discretion): (1)  in fair to pristine condition; (2)  listed in Our current Designer Directory at the time of evaluation; (3)  authentic (which means, among other things, that the item is not counterfeit, fake, stolen or subject to any geographic sale restrictions, such as in the case of gray market goods); and (4) consistent with the representations and warranties You make in the “Your Representations, Warranties, and Indemnification” at Section 8. If an item meets Our criteria for acceptance, the item will appear as Accepted in our corresponding message, at which point the item will be considered an “Accepted Item. 

 

(iii) If We decide to reject an item, We will return the item to You at Our expense (however We may also destroy or retain items in certain circumstances like those listed in “Unauthenticated Items” at Section 4 below). 

(c) Consignment Period And Return Of Property

(i) Subject to termination of this Agreement pursuant to Section 5 hereof, the “Consignment Period” for each item of Consigned Property begins on the date an item is Accepted by Us for Consignment and ends 365 days thereafter, even if this Agreement has been terminated during that time by You or D|+ Sign KelCHer. At any time during the Consignment Period, and subject to this provision, You may request in writing that We return any Accepted Item (a “Return Request”), so long as the Accepted Item has not already been Sold. Once We receive Your Return Request, We will use commercially reasonable efforts to remove the Accepted Item from the Service, and from any of Our retail store locations, if applicable, before it is Sold. 

(1)  If Your Return Request is made any time prior to the end of the Consignment Period, We will return the Accepted Item to You and will charge You the costs of return and such costs will be deducted from Your pending Commissions (if available). If You do not have enough pending Commissions available to cover the Costs (as defined below in this Section), We will not return the item to You unless and until You pay for the costs of return prior to shipment. “Costs” of return are equal to: (A) a fee of $100 per fine art piece and $15 per every other item, which fees reflect Our up-front costs of storing, cataloging, and photographing the item in preparation for sale, plus (B) applicable shipping costs.

(2)  If an Accepted Item has not been Sold and You have not submitted a Return Request by the end of the Consignment Period, You relinquish all right, title, and interest to such Accepted Item and authorize Us to re-purpose or donate the item to a charity of Our choice without further notice or any compensation to You. 

(3)  If an Accepted Item has not been Sold by the end of the Consignment Period, We will contact You and, at Your option and Our expense: (A) return the Accepted Item to You, or (B) re-purpose or donate the item to a charity of Our choice. 

(ii)  If at the end of the Consignment Period We are unable, after using commercially reasonable efforts (and in any event within thirty (30) days of Our first attempt), to contact You at the email or physical address We have on file for You any items of Consigned Property may be re-purposed or donated to a charity of Our choice

(d) Efforts To Sell; Price

(i) As long as You are in full compliance with this Agreement, We will display on the Service (and, at Our sole discretion, display and make available for sale at one of Our retail locations), and will make commercially reasonable efforts to sell the Consigned Property. 

 

(ii) Unless We have agreed otherwise in writing to a specific price at which a specific item must be Sold, We, in our sole discretion, will determine the initial selling price for each item of Consigned Property (the “Initial Sale Price”) based on Our evaluation of that item, together with Our determination of the current re-sale market price for that item. The original manufacturer’s suggested retail price of an item, while sometimes listed on the item product description page on Our website, is used as a reference only.     

 

(iii) In order to market and promote the sale of each item of Consigned Property, We may in Our sole discretion apply an immediate 20% discount to the item of Consigned Property, which will affect its Initial Sale Price, unless We have otherwise agreed in writing that such discount is not permitted, or if We have agreed that a discount is permitted only with Your prior written consent.   

(iv) We may offer additional discounts and promotions during the Consignment Period, at Our sole discretion and without notice to You, to efficiently market and sell the Consigned Property, unless We have otherwise agreed in writing that further discounts are not permitted, or We have agreed that such discounts are permitted only with Your prior written consent.

(e) Title To Property

You will continue to own and have title to each item of Consigned Property until that item is “Sold” or until the end of the Consignment Period. An item will be considered Sold at the earlier of when:

(i) We sell it to a customer and the Consigned Property is not returned to Us within the period specified in Our then-current Return Policy (see www.dsignkelcher.com/returns, which may be updated, modified and changed from time to time); or

 

(ii) it is lost, stolen, damaged, or destroyed while in Our possession.

 

(f) Commissions And Payment for Consigned Property

 

(i) Commissions. We will pay You a Commission on each item of Consigned Property that is Sold. The Commission will be equal to the item’s Net Selling Price (as defined in Section 2(f)(ii) below) multiplied by the applicable Commission Rate (as defined in Section 2(f)(iii)below). The Commissions You receive for Sales of Your Consigned Property are the sole compensation You will receive under this Agreement for such sales. This Section describes how Commissions are created and when and how they are paid. 

 

(ii) Definitions.

1. “Commission Window” means (1) for the first Commission Window, the period that begins on the date Your first item of Consigned Property is Sold and ends at the end of the month that is one year after such date and, (2) for subsequent Commission Windows, the one-year period that begins on the following day after the expiration of the previous Commission Window. For example, if Your first item of Consigned Property sells on March 5, Your first Commission Window begins on March 5 and ends on March 31 of the following year and each of Your Commission Windows thereafter will begin on April 1 and continue until March 31 of the following year.

2. “Net Selling Price” means the price at which an item of Consigned Property is Sold, less applicable discounts and promotions and excluding taxes and shipping. “Net Sales” means the total amount We received from sales of Your Consigned Property within a Commission Window, less applicable discounts and promotions and excluding taxes and shipping. For example, if You had three items of Consigned Property that Sold in a Commission Window whose Net Selling Prices were $5,000, $100, and $4,000, Your Net Sales for that Commission Window would be $9,100.

(iii) Rewards Program. D|+ Sign KelCHer Rewards program (the “Commission Rates”) used to calculate the commission (the “Commission”) You receive for each item of Consigned Property that is Sold is found at https://www.dsignkelcher.com/commission-chart (which We may update and modify from time to time). 

(iv) Commission Rates and Commission Windows. The Commission Rate that will apply to sales of Your Consigned Property within a Commission Window is based on Your Net Sales within that Commission Window. We may also, from time to time in Our sole discretion and without notice to You, (i) for promotional reasons, offer special Commission Rates that apply only to specific item categories, are offered for a specific period of time, or that have other special conditions, or (ii) make other changes to its Commission structure and the Commission Rates, such changes to be effective as of the date they are published on the website as set forth in Section 2(f)(iii) above. 

(v) Commission Rate Reset. After the end of the first Commission Window and after the end of each Commission Window thereafter, Your starting Commission Rate for the next Commission Window will be set at the highest Commission Rate You achieved in the previous Commission Window. For example, if You reached Net Sales of $11,000 in Your first Commission Window and the then-current Commission Rate that applies to Net Sales of $11,000 is 70%, Your starting Commission Rate for the next Commission Window will be 70%. If in Commission Window 2, You only reach Net Sales of $1,400 and the then-current Commission Rate that applies to Net Sales of $1,400 is 55%, Your starting Commission Rate for Commission Window 3 will be reset to 55%.

 

(vi) Payments. We typically begin processing Commission payments on the 15th day of every month for sales of Consigned Property that occurred during the previous month. For example, payments processed on April 15th would cover the sales period from March 1 through March 31. Payments will be made to You by direct deposit, in the form of Site credit, by physical check or, another payment method mutually acceptable to You and Us. Should You choose to receive payment by paper check, You may, in our sole discretion, be charged a processing fee.

The timing of processing and delivering Commission payments will vary by the payment method You select but will typically take at least two business days (provided, however, that these times are estimates only and are subject to change).

Payment processing services for consignment sales and pursuant to Our Get Paid Now program (as set forth more fully in Section 3below) are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service(collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to consign or sell on D|+ Sign KelCHer, You agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Us enabling payment processing services through Stripe, you agree to provide Us accurate and complete information about You, and You authorize Us to share it and transaction information related to Your use of the payment processing services provided by Stripe.

(vii) Your Information. If you create an account and sell an item with or to Us, You will be required to provide contact, payment, billing, and other information. All information You provide to Us must be (and must at all times during the term of this Agreement remain) true, accurate and complete. In order to receive Commissions, refunds or other payments, You must provide Us with all necessary information, including but not limited to a valid email address, postal address, first and last name, and bank account information. We will not be responsible for communication errors should Your information be inaccurate or incomplete. You are responsible for ensuring that You can receive emails from Us, and We are not responsible for any emails that were not received by You because they were blocked or filtered as spam. If You fail to provide Us with accurate and up to date information: (a) We will not be responsible for any misapplied payments or payments sent to a wrong address, and (b) any unclaimed funds may be subject to collection by governmental authorities under applicable unclaimed funds and escheat laws. We have no obligation to You if any of Your unclaimed funds are turned over to governmental authorities.

(viii) Disputes. If there is a Dispute (as defined in “Informal Dispute Resolution” at Section 20(b)), between You and Us relating to Your Consigned Property, We will have no obligation to pay any Commissions or other amounts due to You, including without limitation, amounts unrelated to the Dispute, unless and until the Dispute is resolved. We may withhold any Commissions due to You (including any due for Sold items of Consigned Property not subject to the dispute) and setoff such Commissions in full or partial satisfaction of any amounts You owe to Us.

 

3. GET PAID NOW

Certain items of Property may be eligible for Our Get Paid Now program. If You choose Get Paid Now for Your eligible items of Property, You agree to sell and relinquish all right, title, and interest to the items of Property so designated (the “Get Paid Now Property”) to Us for an amount equal to the offer price We communicate to You (the “Offer Price”) as set forth more fully below.

(a) Further Inspection and Authentication; Request for Additional Information

(i) To submit a request for the Get Paid Now option, You must deliver the relevant Property to Us for consideration and provide all relevant information required by this Agreement. Once we receive Your Property, We will evaluate it to determine, in Our sole discretion, the Property’s condition and authenticity in a manner consistent with the way in which We authenticate Consigned Property. If We decide not to provide an Offer Communication to You (as defined below) or Accept the Get Paid Now Property for Consignment or Trade-In (as defined below), the Get Paid Now Property will be returned to You consistent with Section 2(c)(i)(1) at Our expense.

(ii) In addition to information provided under Section 2(f)(vii), You may be asked to provide additional documentation and/or information concerning Yourself and/or the Get Paid Now Property, including all documentation or information We request to comply with local, state and federal law (including Our obligation to report Property received to the proper authorities as required by applicable law and to file Forms 8300 with the Internal Revenue Service to report high value cash transactions where applicable.)

 

(b) Determining the Offer Price; Accepting or Rejecting the Offer 

(i) If We decide to purchase any of Your Get Paid Now Property, We will determine the Offer Price for each item using factors that We deem to be appropriate. The Offer Price(s) will be communicated to You via either Your MySales page or directly via email (the “Offer Communication”). The Offer Communication will remain in effect for a period of seven (7) days from the date it is delivered to You, at which time the Offer Communication will be null and void. 

(ii) You may accept the Offer Price(s) by designating Your instructions for each item as indicated in the Offer Communication. 

 

(iii) The Offer Communication may provide You with additional options to either (1) consign the Get Paid Now Property at a stated Consignment price (the “Consignment Offer”) which will be treated as Consigned Property under Section 2 above, (2) Trade In the Get Paid Now Property in exchange for Site credit in the amount specified, or (3) request that the Get Paid Now Property be returned to You at the address indicated in Our records. Such return will be at no cost to You and We will insure the Get Paid Now Property for the full value of the Offer Price. 

(c) Risk of Loss

You are responsible for all risk of loss or damage to the Get Paid Now Property until We take physical possession of it; however, if You use Approved Transit, We will assume the risk of loss or damage to the Get Paid Now Property upon Shipment. 

(d) Payment for Get Paid Now Property

Prior to payment of an Offer Price, You will be required to sign an acceptance form (“the Final Offer to Purchase”) confirming Your acceptance of the Offer Price for each piece of Property. We will issue payment for the Get Paid Now Property in the amount stated in the Final Offer to Purchase, via the method of payment You provide. Payment processing services are provided by Stripe as set forth more fully in Section 2(f)(vi) above.

(e) All Sales Final  

ONCE YOU HAVE SIGNED THE FINAL OFFER TO PURCHASE, THE TRANSACTION IS COMPLETE. ALL SALES ARE FINAL. NO REFUNDS, RETURNS OR CREDITS ARE PERMITTED.

 

4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS

We are committed to preventing the sale of counterfeit and inauthentic goods and have created an authentication process to prevent the sale of counterfeit and stolen goods on the Service. However, You are responsible in the first instance for ensuring the authenticity of all items You provide to us. If We cannot confirm the authenticity of any item of Property You have provided, We may, in Our sole discretion, refuse to accept the item and return it to You. If We determine at any time that an item is counterfeit, unapproved, allegedly stolen, or offered for sale in an unauthorized geographic market (for example, gray market goods), We will notify You that we have made such a determination and You will have an opportunity to provide proof of purchase or other proof of authenticity, including sales receipts and other indications of origin or provenance acceptable to Us. Any item that We finally determine, in Our sole discretion, to be counterfeit will not be returned to You and will be destroyed by a certified third-party vendor or, in Our sole discretion, turned over to the appropriate law enforcement agency. We also fully cooperate with brands seeking to track down the source of counterfeit items and in addition to the rights above, if required by court order or directive of law enforcement, We may reveal to brands the contact information of sellers submitting goods that have been challenged as infringing, unapproved, suspicious, allegedly stolen, or offered for sale in an unauthorized geographic market (for example, gray market goods). We reserve the right, in Our sole discretion, to deny the use of Our services to any consignor who submits counterfeit items for sale on the Service.

We are subject to laws and regulations relating to claims that items offered to Us or on the Service are counterfeit, have been stolen, or otherwise violate applicable law. We take such reports seriously and will cooperate with law enforcement in all investigations.

 

5. TERMINATION; DENIAL OF SERVICE

You and We may each terminate this Agreement in writing at any time, for any reason. Termination will be effective on the date of such notice and any applicable costs relating to return of Consigned Property listed under “Consignment Period and Return of Property” at Section 2(c), will apply.

At D|+ Sign KelCHer, We truly value Our customers and are committed to providing a safe, respectful, and positive experience for You, as well as for the members of Our team. We reserve the right, in our sole discretion, to deny or terminate access to Our services of any customer who engages in behavior prohibited by our KelCHer Respect Guidelines (available on our website and which We may modify or amend from time to time).

 

6. NO ASSIGNMENT

You may not assign this Agreement or any interest You have in it without Our prior written consent. Any prohibited assignment is null and void. This Agreement will inure to the benefit of, and are intended to be enforceable by, the parties and their respective successors and assigns. 

 

7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: 

YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. OUR CONSIGNMENT, GET PAID NOW, AND OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WE MAKE NO WARRANTY THAT (A) OUR SERVICES WILL MEET YOUR REQUIREMENTS OR (B) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM US OR THROUGH OR FROM OUR WEBSITE OR OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

D|+ SIGN KELCHER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR FOR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR FOR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE OUR SERVICES OR OUR WEBSITE; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (C) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT; OR (D) ANY OTHER MATTER RELATING TO OUR SERVICES OR THIS AGREEMENT.

IN NO EVENT WILL OUR LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT WE HAVE ACTUALLY RECEIVED OR PAID AS A RESULT OF SELLING OR PURCHASING YOUR PROPERTY HEREUNDER. 

THE FOREGOING DISCLAIMERS AND LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF OUR BUSINESS, AND WE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMERS AND LIMITATIONS.

PLEASE SEEK THE ADVICE OF APPROPRIATE PROFESSIONALS REGARDING THE TERMS OF THIS AGREEMENT AND THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT. 

 

8. YOUR REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION

You hereby represent and warrant that (a) You are at least 18 years of age, (b) You have good and marketable title to each item of Consigned Property, Property and/or Get Paid Now Property and as the legal and equitable owner have full authority to consign and sell the Consigned Property, Property and/or the Get Paid Now Property; (c) none of the Consigned Property, Property and/or the Get Paid Now Property is subject to any liens or other encumbrances; (d) neither the Consigned Property, Property nor the Get Paid Now Property includes counterfeit goods; (e) neither the Consigned Property, Property nor the Get Paid Now Property infringes upon, misappropriates, or violates any trademark, copyright, or other intellectual property or other proprietary right of any third party, any state or federal law, or any administrative regulation; and (f) neither the Consigned Property, Property nor the Get Paid Now Property is from, or the result of, illegal activity, including theft or fraud. With respect to Get Paid Now Property, You further represent and warrant that no transaction initiated by You, including the purchase by Us of the Get Paid Now Property, will cause Us to be in violation of any anti-money laundering, anti-terrorism, or other applicable state or federal law of the United States of America, any state, or any foreign country.

You will indemnify and hold Us harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs, incurred by Us as a result of or arising in any way out of Our display or sale of the Consigned Property or the Get Paid Now Property, including but not limited to, civil or criminal suits over authenticity or ownership of the Consigned Property or Get Paid Now Property, legality of sales, or copyright or trademark infringement. 

   

9. GOVERNING LAW

This Agreement, or the breach thereof, and all claims of any kind relating to or arising out of this Agreement and the relationship between You and D|+ Sign KelCHer, whether tort, contract, or statutory, will be governed exclusively by the laws of California, without regard to its conflicts of laws principles (whether of California or any other jurisdiction). Any Dispute between You and Us that is not subject to arbitration or cannot be heard in small claims court will be resolved exclusively in the state or federal courts of Georgia and the United States, respectively, sitting in Fulton County, Georgia. The United Nations Convention on Contracts for the International Sale of Goods will not in any way apply to this Agreement or any sales or consignments made under this Agreement. 

   

10. AMENDMENTS TO THIS AGREEMENT

We may update or change any of the terms and conditions of this Agreement at any time in Our sole discretion upon thirty (30) days’ notice, except as set forth above in “Commissions and Payment” at Section 2(f)(iv) above which provides that Commission Rates may be changed by Us at any time and without notice to You and that such change is effective immediately. 

You will be bound by all revised terms on the effective date, including any changes to the Commissions or Commission Rates, unless You terminate this Agreement before the effective date of the revised terms. If You do not agree to any revised terms, Your sole recourse is to terminate this Agreement in accordance with “Termination; Denial Of Service” at Section 5 above before the effective date of the revised terms. 

 

11. ENTIRE AGREEMENT

This Agreement, including Our Terms of Service (available at https://www.dsignkelcher.com/terms) and any terms, policies, or documents incorporated by reference, sets forth the final, complete, and exclusive agreement between You and Us regarding the subject matter hereof and terminates and supersedes all prior understandings or agreements on such subject matter. Except as expressly set forth in “Commissions and Payment” at Section 2(f) and “Amendments to this Agreement” at Section 10 above, this Agreement may be modified only by a writing signed by You and Us. In the event there is a conflict between the terms of this Agreement and any terms or documents incorporated by reference, this Agreement will control. 

 

12. NO IMPLIED WAIVER

Any failure by You or Us to enforce any provision of this Agreement will not constitute a waiver of such provision or of any other provision of this Agreement.

 

13. SEVERABILITY

If any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement will remain valid and enforceable as though such term were absent upon the date of the execution of this Agreement.

 

14. SURVIVAL OF TERMS AFTER AGREEMENT ENDS

Notwithstanding any other provision of this Agreement, any provision of this Agreement that imposes or contemplates continuing obligations on You or Us will survive the termination of this Agreement.

 

15. HEADINGS

Headings used in this Agreement are provided for convenience only and will not be used to construe meaning or intent.

 

16. NOTICES

All notices under this Agreement must be in writing (which includes emails).

If You have any questions or comments about this Agreement, the Service or wish to terminate this Agreement, please contact Us by email at: dsign.kelcher@gmail.com.

We will provide all notices to You at the email address or physical address that You have provided to Us. You are solely responsible for keeping that information current and accurate.

All agreements, notices, disclosures, and other communications that We provide electronically to You satisfy any legal requirement that such communications be in writing.

 

17. DISPUTE RESOLUTION PLEASE READ THIS ARBITRATION SECTION CAREFULLY TO UNDERSTAND YOUR RIGHTS, BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. 

(a) Scope 

For all matters, disputes, or claims between You and Us arising from or related to this Agreement or Your relationship with Us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including any dispute about the interpretation or application of this dispute resolution provision or the enforceability, revocability or validity of this arbitration provision or any portion of the arbitration provision (“Disputes”)  will be resolved by the processes and procedures described in this Section 17, first amicably and then through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. YOU AND D|+ SIGN KELCHER WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO HAVE ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES RESOLVED IN COURT. 

(b) Amicable Resolution 

In the event of a Dispute, You and D|+ Sign KelCHer will first negotiate in good faith to informally resolve the Dispute. You may notify Us of a Dispute by emailing Us at: dsign.kelcher@gmail.com.  The notice must specifically describe the nature of the Dispute and the relief You seek. You and D|+ Sign KelCHer will have sixty (60) days from the date of receipt of such a notice to try to resolve the Dispute (or such longer period as You and D|+ Sign KelCHer may agree upon in writing). If the Dispute is not resolved satisfactorily within sixty (60) days after You or D|+ Sign KelCHer receives notice from the other party in accordance with “Notices” at Section 16 above, You or D|+ Sign KelCHer can submit the Dispute to binding arbitration in accordance with the arbitration provisions below. 

(c) Binding Arbitration 

Except for any controversy or claim properly filed and pursued in small claims court on an individual basis (as explained in “Small Claims Court Option” in Section 17(d) below), any Dispute that remains unresolved after You and D|+ Sign KelCHer attempt to resolve it informally will be resolved by binding arbitration brought on an individual basis, in which case either You or D|+ Sign KelCHer may commence confidential binding arbitration under the terms in this Section 17(c). The arbitration will be administered by the American Arbitration Association (AAA) under the Consumer Arbitration Rules (available online at www.adr.org or by calling 1-800-778-7879), as amended by this Agreement. The place of arbitration will be in the County of San Francisco, California. The arbitration will be conducted by a single arbitrator, selected by the AAA in accordance with the applicable Consumer Arbitration Rules. The arbitration may be held by teleconference or by video conference unless the arbitrator determines upon request by You or by Us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel, the expense and other pertinent circumstances. If the parties are unable to agree on a location, such determination shall be made by the arbitrator. The arbitrator’s decision(s) shall be final and binding. The arbitrator shall have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction.

(d) Small Claims Court Option 

If You entered into this Agreement individually, You have the choice to submit any Dispute before a small claims court, if applicable, instead of having the Dispute resolved by arbitration. You can make this choice either before or after the Dispute is submitted for resolution by Arbitration. 

(e) CLASS ACTION AND LITIGATION WAIVER 

BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, CLASS ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT PERMITTED, AND YOU ARE AGREEING TO GIVE UP AND WAIVE THE ABILITY TO PARTICIPATE IN A CLASS ACTION. COMBINING INDIVIDUAL PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES IS ALSO NOT ALLOWED. DISPUTES REGARDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE FOREGOING CLASS ACTION WAIVER SHALL BE EXCLUSIVELY RESOLVED BY AN ARBITRATOR APPOINTED BY THE AAA, PURSUANT TO THE APPLICABLE ARBITRATION RULES, AS DETAILED IN THIS SECTION 17. 

(f) Severability. 

Should any portion of this Section 17 be deemed unenforceable by the arbitrator or a court of competent jurisdiction, the unenforceable portion will be severed without affecting the remainder of this Section 17, which will remain in full force and effect. If the severance of any portion of Section 17 results in any claims proceeding on a class or representative basis, those claims will be litigated in court and not in arbitration; the parties agree to stay any litigation of those claims pending the outcome of any individual claims in arbitration.

21. MISCELLANEOUS.

You agree that no joint venture, partnership, employment, or agency relationship exists between You and Us as a result of this Agreement or Your access to and use of the Service. Except as otherwise expressly provided in this Agreement, there will be no third-party beneficiaries to this Agreement.

 

 

APPENDIX A

CONSIGNMENT AND GET PAID NOW PROCESS SUMMARY

1. Submit Your items to Us.

2. You may designate some or all items for Consignment.

3. You may request Get Paid Now Offers for any of Your eligible items. 

4. Once We have authenticated and evaluated such eligible items, You may receive a Get Paid Now Offer Communication for some or all of Your eligible items via Your MySales page or directly via email.

5. We are under no obligation to extend an Offer Price for or to purchase eligible items that do not meet Our acceptance standards in Our discretion. 

6. The Offer Communication, on the Get Paid Application, will list Your options to for each of Your items: either (1) accept the Get Paid Now Offer Price for direct deposit, (2) accept the Trade In Offer Price for site credit, (3) consign the item at the Consignment Offer stated subject to the terms of this Agreement relating to Consignment, or (4) accept the Get Paid Now Offer + Trade In Offer Price for site credit, and if we have your physical item during negotiations: (5) request that the item be returned to You. 

7. For items for which You have accepted the Get Paid Now Offer Price or the Trade In Offer Price, You will receive an additional Final Offer to Purchase for Your signature via Your MySales page or by email.

8. You will earn a Commission for items that are Sold to a third party.

9. Items that cannot be accepted for Get Paid Now, Trade-in, or Consignment will be returned to You.

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