This Consignment Agreement (this “Agreement”) is between EMIER, and the individual consignor whose name is set forth below (“Consignor”). WHEREAS, EMIER is engaged in the business of selling and marketing of authentic, high-fashion designer items on a consignment basis; WHEREAS, Consignor desires to consign to EMIER certain items for the purpose of facilitating a sale of such items by EMIER pursuant to the terms and conditions set forth herein; and WHEREAS, if Consignor has previously entered into a Consignment Agreement with EMIER, this Agreement is intended to supersede such prior agreement in all respects and, for the avoidance of doubt, any Presented Items (as hereinafter defined) in EMIER’s possession as of the date of this Agreement will be governed by the terms and conditions of this Agreement (and not by the terms and conditions of any previously-entered into Consignment Agreement).
NOW, THEREFORE, based upon the mutual promises and covenants contained in this Agreement, the receipt and sufficiency of which is acknowledged, the parties hereby agree as follows:
1. GOODS TO BE RESOLD.
(a) Consignor shall make available to EMIER, on a consignment basis, such items as may from time to time be presented by Consignor and accepted by EMIER (each, a “Presented Item”). Within approximately fifteen (15) to twenty-one (21) days after EMIER’s receipt of any Presented Item, Consignor will receive a notification email from EMIER (the “Receipt”) when pricing is uploaded into Consignor’s online account portal for review. Consignor will then have 48 hours from the notification email to request updates or return of items unapproved. The online portal account will set forth a list of the Presented Items, the initial selling List Price (as hereinafter defined) of each such Presented Item and for any Presented Items with an initial List Price of $500 or more, the Firm Minimum Net Selling Price (as hereinafter defined), if requested by Consignor, at the time of the Receipt.
(b) For any Presented Item with a List Price of less than $500, EMIER may lower the List Price of such Presented Item and/or include such Presented Item in ongoing promotions throughout the Consignment Period, in EMIER’s sole and absolute discretion, and without further notification to Consignor or approval of Consignor.
(c) For any Presented Item with an initial List Price of $500 or more, Consignor may request, through Consignor’s online account portal, that a Minimum Net Selling Price for such Presented Item be visible to Consignor and that such Minimum Net Selling Price for such Presented Item remain firm for the first 60 days of listing (the “Firm Minimum Net Selling Price”). EMIER may sell Presented Items with a Firm Minimum Net Selling Price only within the visible price range established by the range between the Firm Minimum Net Selling Price and the initial List Price, at any time, at EMIER’s discretion. Following such first 60 days of listing, and notwithstanding any Firm Minimum Net Selling Price, EMIER may send subsequent notification emails that alter the List Price and the Firm Minimum Net Selling Price for one or more such Presented Items. Failure by Consignor to dispute the terms of any Receipt or subsequent notification email altering the prices within forty-eight (48) hours of transmittal of such Receipt or notification email to Consignor shall signify Consignor’s acceptance of the terms of such Receipt or notification email. Consignor’s timely dispute with respect to any Presented Items reflected on such Receipt or notification email shall render each such Presented Item an Item Not Accepted (as hereinafter defined). Each Receipt and notification email shall be deemed to form a part of this Agreement and shall in all respects be subject to this Agreement. If at any time during the Consignment Period the List Price is lower than $500, the terms of paragraph
(d) immediately above will apply. For purposes of this Agreement, “List Price” shall mean EMIER’s determination of a Presented Item’s current resale value based on EMIER’s assessment of market comps, the designer, condition, age and type, and sale availability, which shall in all respects be in EMIER’s sole and absolute discretion subject only to the terms of this Agreement.
2. DELIVERY OF PRESENTED ITEMS.
EMIER shall be responsible for the cost arranging for transportation to one or more of EMIER’s warehouses and/or retail locations. Consignor assumes all risk of loss or damage to a Presented Item while it is in transit until the items are unpacked, audited and assigned an internal tracking number, subject to the terms and conditions herein.
3. ACCEPTANCE OF PRESENTED ITEMS.
Upon receipt and processing of a Presented Item, EMIER will evaluate the Presented Item to ensure the item is one of the then current accepted brands (accepted brands list) and will determine its authenticity and quality. Any Presented Item that is not a current accepted brand (accepted brands list) or does not meet EMIER’s authenticity or quality standards as set forth at (consignment guidelines) as both may be amended from time to time by EMIER (each, an “Item Not Accepted”), will be returned to Consignor, at Consignor’s expense within thirty (30) days after LGS’s receipt of such Presented Item. EMIER’s designation of any items as an Item Not Accepted shall in no way alter the effect of this Agreement as to any other Presented Item, if any. Final acceptance of any Presented Item is held by EMIER upon in-person inspection of items by EMIER’s central processing team only. Under no circumstances shall Consignor be eligible for the Commission (as defined below) or any other sales commission, profit sharing or otherwise as to any Item Not Accepted. In the event that an Item Not Accepted is not physically retrieved by Consignor from EMIER for a period of thirty (30) days or EMIER requests return shipping information from Consignor without adequate response for a period of thirty (30) days after initial request, all applicable Items Not Accepted shall be deemed abandoned to EMIER and Consignor shall have no further right or claim as to any such Items Not Accepted or any proceeds thereof.
4. STOLEN AND COUNTERFEIT PRESENTED ITEMS.
Consignor hereby represents and warrants that that he/she has no reason to believe that any Presented Item is stolen or “counterfeit” (i.e., modern forgery intending to deceive). If EMIER determines at any time that a Presented Item is stolen or counterfeit, EMIER will provide notice to Consignor and Consignor will have an opportunity to provide proof of purchase/other proof of authenticity acceptable to EMIER in its sole and absolute discretion. Notwithstanding anything to the contrary in this Agreement, Consignor acknowledges that EMIER reserves the right to confiscate stolen or counterfeit items finally determined as such by EMIER and will not return such items to Consignor. If any Presented Item from Consignor is found to be stolen or counterfeit and EMIER is found liable for the sale of the stolen or counterfeit Presented Item, or if EMIER incurs any liability from such an item, Consignor acknowledges that the indemnification provisions set forth in Section 11 “Consignor’s Representations and Warranties and Indemnification” shall apply. Consignor’s personal information may be requested by law enforcement personnel, rights owners or their representatives looking to trace the origin of the stolen or counterfeit items. Consignor acknowledges and agrees that it is EMIER’s policy that EMIER may provide such information in its sole and absolute discretion.
5. EFFORTS TO SELL.
Consignor hereby grants to EMIER the right to illustrate and photograph any Presented Item, and to use such photographs, illustrations or images therefrom for such purposes as EMIER sees fit. Upon acceptance of a Presented Item, EMIER will display it in stores and/or online and will make commercially reasonable efforts to sell such Presented Item. Subject only to any Firm Minimum Net Selling Price, as applicable, and the process set forth in Section 1(c) above, as applicable, the List Price for each Presented Item will be set by EMIER as set forth in the Receipt, and may be changed from time to time by EMIER in its sole and absolute discretion without notice to Consignor. EMIER reserves the right to run promotions on its website, in its retail stores, and in other selling venues as part of its ongoing sales efforts; provided, however, that if any Presented Item is sold for less than the Firm Minimum Net Selling Price as provided in the Receipt, as applicable and during the first 60 days following the Receipt, Consignor shall receive the Commission (as set forth in Section 7 “Payment and Commissions”) calculated based on the Firm Minimum Net Selling Price provided in the Receipt.
6. CONSIGNMENT PERIOD; RETURN OF PRESENTED ITEMS; FEES.
The minimal consignment period is 6 weeks, early termination will incur full amount of consignment commission charge. At the end of 6 weeks, unsold items can be collected by consignor with free of charge. The “Consignment Period” for each Presented Item begins on the date EMIER accepts the Presented Item for consignment and first remits to Consignor the Receipt for such Presented Item, and ends on the last day of the calendar month that is 1 year following such date, unless otherwise noted on Consignor’s online account portal. Consignor may request the return of any Presented Item at any time during the Consignment Period, return shipping fees to be at Consignor’s sole expense and all risk of loss in transit to be borne by Consignor, EMIER shall remove any listing of any returned Presented Item from EMIER’s website and other selling platforms within a reasonable time period. Consignor agrees to provide Consignor’s credit card information to EMIER for payments and fees in accordance with this Agreement. Consignor authorizes EMIER to charge Consignor’s credit card on file for all payments and fees in accordance with this Agreement, including but not limited to the Return Shipping Fee and the Early Termination Fee. In the event Consignor ’s credit card on file does not process at the time of any payment, EMIER will notify Consignor and Consignor will have 6 weeks to update such credit card on file. In the event Consignor does not update such credit card on file within such 6 weeks, the Presented Items related to the payments and fees shall be deemed abandoned to EMIER and Consignor shall have no further right or claim as to any such Presented Items or any proceeds thereof.
7. PAYMENT AND COMMISSIONS .
Upon the sale of any item Presented Item, Consignor will receive a Commission (as hereinafter defined). The Commission will be equal to the Net Sales Price (as hereinafter defined) multiplied by the applicable Commission Rate (as hereinafter defined). The Commission shall be Consignor’s sole compensation under this Agreement as to any Presented Item. “Items Value” means the price at which a Presented Item Price less EMIER’s commission rate fees. The EMIER program (the “Commission Rates”) used to calculate the commission (the “Commission”) Consignor receives for each Presented Item is as follows:
Bag & Jewellery
AUD 0 - AUD 1,500
AUD 220 Flat Rate
Bag & Jewellery
AUD 1,501 - AUD 12,000
12% + AUD 50
Bag & Jewellery
AUD 12,001 PLUS
10% + AUD 250
|AUD 0 - AUD 1,000
AUD 250 Flat Rate
|AUD 1,001 PLUS
*Fashion categories including Clothes, Shoes, Hats, Sunglasses, Scarfs and Other accessories
*Item weights more than 3kg or has any part of its dimension (Length, Width, or Height,) longer than 40cm requires $200 extra handling fee.
8. RISK OF LOSS; INSURANCE.
Except as set forth hereunder, all risk of loss or damage to a Presented Item will pass to EMIER when a Presented Item is received by EMIER, has been audited, and assigned an EMIER Item Number at an EMIER location. Prior to that point, including while any Presented Item is in transit or unaudited by EMIER, EMIER shall only be responsible for providing insurance for the first $99 of value, unless otherwise agreed to in writing in advance with Consignor. Once in EMIER’s formal possession triggered by an EMIER Item Number creation, EMIER shall insure each Presented Item in such amounts and against such risks as to which such goods are customarily insured, including insurance for theft and damage. Notwithstanding the foregoing, EMIER’s liability hereunder shall be limited to the lesser of (i) either (A) the amount of Commission that Consignor would have received should the Presented Item have been sold at the then-current List Price (less any then-current and applicable discounts and/or promotions) or (B) if Consignor has not yet accepted a Receipt pursuant to the terms hereunder as to such Presented Item, the amount of Commission that EMIER reasonably believes Consignor would have received in the event of a consignment sale as to such Presented Item; and (ii) the amount of insurance proceeds received by EMIER for such Presented Item. Absent definitive evidence to the contrary, determinations under this Section 8 shall be made in EMIER’s sole and absolute discretion. Furthermore, EMIER shall not be responsible for any loss or damage that is specifically excluded by EMIER’s insurance policy, and notwithstanding anything contained in the foregoing, EMIER shall not be responsible for any loss or damage during return shipping.
9. TITLE TO PRESENTED ITEMS.
Title to and ownership in each Presented Item will remain with Consignor until such Presented Item is:
● Directly or indirectly sold by EMIER;
● Lost or stolen from EMIER’s stock on hand;
● Damaged or destroyed while in EMIER’s possession;
● Deemed to be an Item Not Accepted and Consignor has not requested that it be returned to Consignor; or
● Otherwise not physically present in EMIER’s stock on hand.
Either party hereto may terminate this Agreement at any time, for any reason, subject to the fees set forth herein. Termination shall be effective when either party hereto serves written notice thereof (a “Notice”) on such other party, to such party’s address (see Section 15 “Notices” below). EMIER shall return each Presented Item to Consignor or transfer ownership of any Presented Item to EMIER, at Consignor’s preference and expense, within ninety (90) days of EMIER’s receipt of a Notice; provided, however, that absent direction otherwise, EMIER will return each Presented Item to Consignor at Consignor ’s expense. Consignor shall also be liable for the Early Termination Fee as to each returned Presented Item. If a Presented Item cannot be returned to Consignor due to loss, Consignor expressly agrees that Consignor’s sole remedy hereunder shall be as set forth in Section 8 (“Risk of Loss; Insurance”) hereunder.
11. CONSIGNOR’S REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION.
Consignor represents and warrants that (i) Consignor is the sole legal owner of each Presented Item and (ii) Consignor obtained each Presented Item in a legal manner with clear title to each Presented Item. Consignor warrants and represents that any description of any Presented Item provided by Consignor to EMIER is complete, true, and accurate, and no defects have been discovered in the item(s) that Consignor has not disclosed. Consignor further warrants that (x) no Presented Item infringes upon or violates any trademark, copyright, or other proprietary right of any third party, any state or federal law, or any administrative regulation, (y) that all Presented Items deposited with EMIER is authentic and (z) that Consignor has not made any misrepresentations with respect to the authenticity of any Presented Item. In the event that any Presented Item or description tendered by Consignor to EMIER is deemed to be disingenuous by the trademark holder of the good, Consignor shall assume all liability with respect to the disingenuous and infringing good(s). Furthermore, Consignor hereby agrees to release, hold harmless, defend, and indemnify EMIER and its officers, directors, shareholders, agents, and employees from any and all liability, including attorneys’ fees and costs, with respect to any claims that may arise out of EMIER’s display, transport or sale of any Presented Item 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. Consignor further represents and warrants that by signing this Agreement, no rights of any third parties or trademark holders will be violated.
This Agreement amends and supersedes any prior consignment agreement between the parties hereto. For the avoidance of doubt, any Presented Items in EMIER’s possession as of the date of this Agreement will be governed by the terms and conditions of this Agreement (and not by the terms and conditions of any prior consignment agreement between the parties hereto). No amendment, modification or waiver of any terms of this Agreement shall be valid unless it is in writing and approved by the CEO of EMIER. EMIER may amend this Agreement at any time by providing Consignor with a revised version, which will be effective within five (5) days after Consignor’s receipt of such amended agreement. If Consignor disputes such amendment in writing within 5 business days, EMIER shall have the right to modify the Agreement to address Consignor’s concerns or to terminate the Agreement and return any Presented Item that remains in EMIER’s possession at the Consignor’s shipping and processing expense, in accordance with the other terms of this Agreement. No items will be shipped unless and until EMIER has a valid credit card on file from Consignor.
13. CHOICE OF LAW; JURISDICTION.
The laws of the State of Victoria shall govern this Agreement, excluding any conflict of laws rules. The parties each agree to the exclusive jurisdiction and venue in the state and federal courts located in Cook County, Victoria for the resolution of any dispute arising out of or in any way relating to this Agreement and submit to personal jurisdiction and venue in those courts for purposes of any such action.
If one or more of the provisions of this Agreement shall be declared or held to be invalid, illegal, or unenforceable in any respect in any jurisdiction, then the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby and any such declaration or holding shall not invalidate or render unenforceable such provision in any other jurisdiction.
Any and all notices, demands or other communications required or desired to be given hereunder, including, without limitation, any Notices, shall be validly given or made to (i) Consignor, at the email address set forth below or (ii) EMIER, at The Block Arcade, 282-284 Collins st Melbourne 3000, Australia (a) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, or by facsimile or email transmission, as applicable, or (b) five (5) days after being mailed, certified or registered mail, postage prepaid, as applicable. If such notice, demand or other communication be served personally, service shall be conclusively deemed made at the time of such personal service. Any party hereto may change its address for the purpose of receiving notices, demands and other communications as herein provided by a written notice given in the manner aforesaid to the other party or parties hereto. Consignor is responsible for keeping Consignor’s email address information current with EMIER. Consignor hereby agrees that all agreements, disclosures, communications and other Notices that EMIER provides via email to Consignor satisfy any legal requirement that such Notices be in writing.
16. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of both parties and each of their successors, heirs and assigns; provided, however, that Consignor may not assign any of its rights under this Agreement. This Agreement shall not inure to the benefit of any third party.
17. ELECTRONIC SIGNATURES.
For purposes of this Agreement, use of e-mail or other electronic medium, including use of the Electronic Signature Consent below, shall have the same force and effect as an original signature.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.