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.
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.
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 Commiss