ResellXL is engaged in the marketing and sale of designer clothes, accessories and shoes for plus sized women;
Consignor owns or controls and has the right to sell certain items, described and itemized on ResellXL’s online and other forms, or collected from Consignor (the "Consignor") by an employee of ResellXL as part of its consignor service (collectively, the "Property"). Consignor wishes to sell that Property.
Consignor desires that the Property be sold on consignment by ResellXL, and ResellXL wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to ResellXL, subject to these Consignment Terms (the "Agreement").
Therefore, in consideration of the mutual premises and covenants contained in this Agreement, the receipt and sufficiency of which is acknowledged, and expressly subject to the provisions of ResellXL’s Terms of Service (see ResellXL’s website at www.ResellXL.com), which terms may be amended from time to time at ResellXL’s sole discretion), the parties agree as follows:
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Consignor makes the Property available to ResellXL on a consignment basis and ResellXL accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to ResellXL only when ResellXL takes physical possession of the Property. Consignor retains all risk of loss or damage to the Property until that time; provided, however, that if Consignor uses ResellXL’s approved method of shipment to ResellXL, specifically using ResellXL’s label and current integrated shipping arrangement (the "Label"), then ResellXL will insure or arrange for a third party to insure the Property against loss or damage in transit, up to a maximum of $10,000 per shipment. A "shipment" means items of Property shipped together under one Label.
ResellXL shall insure the Property in such amounts and against such risks as to which such goods are customarily insured, including insurance for theft and damage while in ResellXL’s possession, and shall provide evidence of such insurance coverage to Consignor upon request. If the Property is damaged or lost while in ResellXL’s possession, then a Property Sale, as defined below at Section 7, will be deemed to have occurred and ResellXL will reimburse Consignor in the amount of Consignor's Commission (also defined below), based on the damaged or lost Property's Net Selling Price(s), as defined at Section 8, and as determined solely by ResellXL.
3. ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS
ResellXL only accepts Property: it determines in its sole discretion to be in very good to excellent condition; is listed in its Designer Directory on its website; it determines in its sole discretion to be authentic; and that is made available to ResellXL in full compliance with the representations and warranties Consignor makes pursuant to this Agreement ("Acceptance").
Upon receipt, ResellXL will evaluate the Property to determine its authenticity, quality and value. The condition of such items will affect their valuation. Property that does not meet ResellXL’s quality standards will not be Accepted and will be returned to Consignor at Consignor's expense (see "Unauthenticated Items" and "Consignment Period and Return of Property" below), or donated to an entity of ResellXL’s choice, or returned to consignor if a printed, completed RETURN MY ITEMS authorization form was sent in with the consignment.
A $45 charge will be deducted from your payouts if your shipment contains more than 10% (1 in 10) of items we cannot immediately list for sale due to condition, stains, missing designer or size tags, counterfeit handbags, or not being on our accepted list without pre-approval.
We do not accept any items with a starting price of under $40.
4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
Consignor is responsible for ensuring the authenticity of all items offered for consignment. In the event ResellXL cannot determine the authenticity of any item of Property offered or provided for consignment, it shall have the right in its sole discretion to refuse to accept the item. In the event that ResellXL determines at any time that an item of Property is counterfeit, ResellXL will notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item ResellXL determines to be counterfeit will not be returned to Consignor and will be destroyed.
5. CONSIGNMENT PERIOD AND RETURN OF PROPERTY
Consignment Period" for an item of Property begins on the Effective Date and ends 180 days thereafter, whether or not such Consignment Period extends beyond the term of this Agreement. Consignor may request ResellXL return all or some of the Property if it is not sold within the 180 day period. Request must be made in writing at the time Property is initially shipped using a printed, fully completed RETURN MY ITEMS authorization form. For such Return Request, ResellXL will charge $7.50/item to cover shipping/handling charges and there is a $30 minimum.
6. EFFORTS TO SELL; PRICE
Subject to Consignor's performance of its obligations under this Agreement, ResellXL will display on its site and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that:
(a) ResellXL in its sole discretion will determine the initial selling price for the Property (the "Initial Sale Price"), based on its evaluation of the Property together with its determination of the current market price for each specific item of Property.
Consignors may choose to select their starting prices for their items. Otherwise, each item will be researched by ResellXL and competitively priced to sell quickly.
(b) ResellXL may offer price reductions or discounts during the Consignment Period, at its sole discretion and without notice to Consignor. Standard reductions will be 33% if an item sells between 61-120 days, 66% if an item sells between if an item sells between 121-180 days. Items not selling within 180 days will be removed from Consignor's inventory and either be donated to an entity of ResellXL’s choice, or returned to Consignor if a printed, completed RETURN MY ITEMS authorization form was sent in with the consignment. Applicable return fees will apply. No items will be returned without fully completed proper documentation as stated above.
7. TITLE TO PROPERTY
A "Property Sale" shall be deemed to have occurred where an item of Property is sold by ResellXL and not returned within the period specified ResellXL’s Return Policy; lost or stolen from ResellXL’s inventory; damaged or destroyed while in ResellXL’s possession. Title to and ownership of the Property will remain with Consignor until a Property Sale occurs or items expire at 180 days without a printed, completed RETURN MY ITEMS authorization form on file.
8. PAYMENT AND COMMISSIONS
Upon a Property Sale, the net selling price upon which all Commissions are based shall equal the price of the item of Property sold, less applicable discounts or sales fees from 3rd party website sales, excluding taxes and shipping (the "Net Selling Price").
Consignor acknowledges and agrees it will receive the following Commission (as defined below, the "Commission") based on the Net Selling Price of an item of Property:
(a) Commission in an amount equal to 51% of the Net Selling Price starting January 1, 2017
ResellXL may at any time and in its sole discretion temporarily increase the Commission from time to time for promotional reasons. The Commission shall be Consignor's sole compensation under this Agreement.
The timing of processing Commission payments will be typically be completed the 15th of the following calendar month after the sale and are delivered electronically through PayPal. In the event of any dispute between the Parties, Commissions will not be paid until such dispute is resolved. No manual checks will be cut, delivered, picked up or sent through the mail.
9. TERM AND TERMINATION
Term: This Agreement will commence as of the Effective Date and will continue until the completion of the Services, or 180 days after initial receipt of Property.
Termination: Either Party may terminate this Agreement at any time, for any reason. Termination shall be effective when either Party serves written notice thereof on the other Party. Costs listed above under Section 5, Consignment Period and Return of Property, will apply.
10. NO ASSIGNMENT
Consignor may not assign, transfer, or delegate any of its rights under this Agreement without ResellXL’s prior written consent. Any prohibited assignment shall be void.
11. NO PROPERTY WARRANTIES
ResellXL does not make any representation or warranty, expressed or implied about any item of Property, except to the extent a warranty is required by law and cannot be disclaimed. In no event shall ResellXL’s liability exceed the actual amount received for selling consignor’s Property.
12. CONSIGNOR’S REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
Consignor hereby represents and warrants that it has good and marketable title to each item of Property and has the right to consign and sell the Property, none of which is subject to any liens or other encumbrances, and further represents and warrants that the Property does not infringe upon or violate any trademark, copyright, or other proprietary right of any third party, any state or federal law, or any administrative regulation. Consignor hereby agrees to indemnify and hold ResellXL harmless from all damages, suits, litigation, awards, and costs, including but not limited to attorneys' fees and costs, as a result of or arising out of in any way ResellXL display or sale of the Property for any reason whatsoever, including but not limited to civil or criminal suits over authenticity, legality, ownership, infringement of copyright or trademark, or any other claim or litigation.
13. CHOICE OF LAW AND FORUM
This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, without regard to the conflict of laws provisions. Each Party irrevocably submits to the exclusive personal jurisdiction of the federal and state courts located in Fairfax County, Virginia, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Fairfax County, Virginia, such personal jurisdiction shall be nonexclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction.
14. ENTIRE AGREEMENT
This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
No waiver by any party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17. SURVIVAL OF TERMS AFTER AGREEMENT ENDS
Notwithstanding any other provision or general legal principles to the contrary, any provision of this Agreement that imposes or contemplates continuing obligations on a Party will survive the expiration or termination of this Agreement.