NOW, THEREFORE, in consideration of the foregoing promises, the mutual covenants contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
(a) Within ten (10) calendar days after the Effective Date, Consignor will place at Consignee's location on a consignment basis, such quantities and types of jewelry and watches (the "Products") as set forth on the consignment form located at www.truefacet.com/consignment (collectively, the "Consigned Inventory"). Consignor shall provide and deliver all Products to Consignee's location at its sole expense, FOB Consignee. By entering into this Agreement, Consignor grants Consignee the right to use the brand's logos, likeness, product images and other reasonable intellectual property on the Consignee's website and any marketing materials provided by Consignee.
(b) The consignment period for any Product in the Consigned Inventory shall commence on the date the Product is accepted by Consignee and shall end one hundred and eighty (180) days thereafter ("Consignment Period"). The Consignment Period may be extended upon mutual written agreement of both parties.
(a) Consignee will only accept Products that are authentic, clean, and in excellent condition. Any defects should be brought to Consignee's attention upon delivery of the Products. Consignee will document condition of all Products in a report and such report will be made available to Consignee upon request. Consignor agrees that the condition of the Product may affect the value of the Product.
(b) Upon receipt of Consigned Inventory, Consignee shall evaluate each Product in the Consigned Inventory to determine its quality and authenticity. Any Product that fails to meet Consignee's quality and authenticity standards will be returned to Consignor, at Consignor's expense. If any Product provided to Consignee hereunder 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.
Consignor hereby grants to Consignee the right to sell Consigned Inventory on behalf of Consignor pursuant to this Agreement. During the Consignment Period, Consignee shall use commercially reasonable efforts to make available for purchase the Consigned Inventory on Consignee's website located at www.truefacet.com. Consignee reserves the right to include Consigned Inventory as part of the sales and promotions that Consignee offers to its customers.
(a) Consignor's who are vendors of Consignee shall provide Consignee with a merchandising pricing sheet that lists the minimum sale price ("Floor Price") for each Product in the Consigned Inventory. Consignor's who are customers of Consignee shall receive a Floor Price for each Product in the Consigned Inventory via email within three (3) days after the Consigned Inventory is placed at Consignor's location pursuant to Section 1 of this Agreement. Consignee agrees to maintain the Floor Price, and will accept nothing less than such Floor Price for any Product sold, unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, Consignee reserves the right, in its sole discretion, to adjust the sale price of any Product in the Consigned Inventory.
(b) Upon sale of Product(s) to Consignee's customers, Consignee shall remit to Consignor the Floor Price for such Product ("Consignor Share") and retain the difference between the actual sale price and the Floor Price for such Product as set forth herein. Upon expiration of time period set forth in Consignee's return policy located at www.truefacet.com/returns, on the fifteenth (15th) day of the following month, Consignee shall pay Consignor, Consignor Share from all sales of Consigned Inventory made during the immediately preceding month. All such payments shall be made by a method mutually agreeable to the parties. Notwithstanding the foregoing, in no event shall Consignee be obligated to make any such payments to Consignor unless and until Consignee receives the proceeds from any such sale.
All Consigned Inventory shall remain the property of Consignor until Consignee sell's it to Consignee's customer. Consignee shall acquire no right, title or interest in the Consigned Inventory other than the right to possess the Consigned Inventory as a Consignee and sell the Consigned Inventory on behalf of Consignor pursuant to the terms of this Agreement. Consignee accepts all risk of loss and full responsibility for the condition of, any shortages in and the payment for all Consigned Inventory which may be lost, stolen, damaged or destroyed while in its possession or control. Consignee shall use commercially reasonable efforts to (i) identify all Consigned Inventory as being the property of Consignor, (ii) separate Consigned Inventory from other property of Consignee, and (iii) maintain complete and accurate records concerning the Consigned Inventory.
At any time after the termination of the Consignment Period, Consignor may, by written notice to Consignee, request return of Products from the Consigned Inventory. All such returns will at Consignor's expense. In the event, Consignor requests Consignee to return Products prior to the termination of the Consignment Period, Consignee shall charge a fee of twenty dollars ($20) per Product to cover Consignee's inventory holding cost. Any Products not sold during the Consignment Period, will be returned to Consignor, at Consignor's expense.
This Agreement will be effective from the time Consignor clicks "I Agree" ("Effective Date") and shall continue in full force and effect thereafter unless sooner terminated as provided for herein. Either party may terminate this Agreement, at any time, without cause, upon fifteen (15) days written notice to the other party. This Agreement may be terminated at any time by either party upon written notice to the other party, if the other party is in material breach of this Agreement and fails to cure such breach within ten (10) days after it receives written notice thereof from such party. All accrued rights or responsibilities will survive termination or expiration of this Agreement. Upon termination of this Agreement, any remaining Consigned Inventory shall be returned to Consignor at Consignor's expense. In the event, Consignor terminates this Agreement while the Consignment Period is in effect, for each Product returned to Consignor, Consignee shall charge a fee of twenty dollars ($20) per Product to cover Consignee's inventory holding cost. Termination shall not affect either party's obligations for undisputed payment accrued prior to the effective date of termination or warranties which have not yet expired.
Consignor represents and warrants to Consignee that during the term of this Agreement (i) Consignor has good title to the Products, free of all liens, claims and encumbrances; (ii) the Products are authentic and not counterfeit or knock offs; (iii) the Products will conform in all material respects, with the Product specifications set forth on the labeling of the Product; and (iv) the Products do not violate, infringe or misappropriate any intellectual property or proprietary rights of any third party. Consignor shall promptly replace, at its sole expense, any Product that does not conform to the foregoing warranties.
(a) NEITHER PARTY, OR THEIR RESPECITVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE PRODUCTS, THE USE THEREOF, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
(b) IN NO EVENT SHALL CONSIGNEE BE LIABLE, IN THE AGGREGATE, FOR ANY DIRECT DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY IN LAW OR IN EQUITY, IN EXCESS OF THE ACTUAL SALE PRICE RECEIVED BY CONSIGNEE FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.
(c) To the extent the exclusions and limitations of liability set forth in this Section is not permitted under applicable law, Consignee's liability in such case will be limited to the greatest extent permitted by law.
Consignor hereby agrees to indemnify, defend and hold harmless Consignee against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable attorneys' fees) and judgments arising from a third party claim against Consignee arising from (i) Consignee's sale of the Product, or (ii) Consignor's breach of the warranty set forth in Section 8.
Consignor and all of Consignor's employees, agents, and contracted staff (collectively "Consignor's Staff") while performing any services pursuant to this Agreement are independent contractors and not employees of Consignee. Consignor's Staff are not eligible for and may not participate in any Consignee health, welfare, pension, disability, insurance, leave or any other benefit of employment plan or program. Consignee will not provide worker's compensation insurance for any Consignor Staff or withhold any taxes or other required withholding to any pay to any Consignor Staff; Consignor is solely responsible for these obligations, if any, to Consignor's Staff.
Consignee shall procure, at its own cost and expense, insurance coverage in amounts as may be expected of a diligent and professional company in the industry, taking properly into account its obligations and liabilities under this Agreement, and shall name Consignor as an additional insured for general liability coverage under this Agreement. Such insurance coverage shall be maintained during the Term of this Agreement. All policies shall contain a minimum of thirty (30) days' notice of cancellation or material change, which notice shall include Consignor. Consignee shall furnish certificates of insurance upon reasonable request by Consignor and provide renewal certificates at least thirty (30) days' prior to the expiration of the policy.
Each party hereby acknowledges that it has or may have access to confidential and proprietary information of the other party including, without limitation, business information related to purchasing, supplies, product pricing, vendor identification, and other financial 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. The receiving party shall (a) only use the disclosing party's Confidential Information to perform its obligations pursuant to this Agreement, (b) 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 shall 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.
If the transportation or delivery of any Product is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of Consignor including, but not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of God or of the public enemy, riots, public disorders, strikes, labor disputes, transportation embargoes or delays, failure of common carriers, shortages of any Products, or acts or regulations or priorities of the government or branches or agencies thereof, Consignor shall be excused from making deliveries hereunder to the extent of such prevention, restriction or interference.
Any notice required or allowed by this Agreement shall be in writing and shall be delivered either by hand to a party, by reputable overnight courier, facsimile with proof of confirmation, or by certified mail, return receipt requested at the address set forth below. Any party may change its address by giving written notice of such change in accordance with the provisions of this paragraph: If to Consignor: At the address set forth on consignment form that is submitted.
If to Consignee : TrueFacet, Inc.
1412 Broadway, Suite 1504
New York, NY. 10018
Consignor shall not assign this Agreement or any rights nor delegate obligations hereunder without the prior written consent of the other party, and any such attempted assignment without the prior written consent of Consignee shall be void and of no force or effect. This Agreement will be binding upon the parties' respective successors and permitted assigns.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. The sections of this Agreement entitled limitation of liability, indemnification, and miscellaneous shall survive the termination of this Agreement. The paragraph headings herein are provided only for reference and shall have no effect in the construction or interpretation of this Agreement. Consignor may not assign this Agreement. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement. This Agreement and any other agreements between the parties entered into shall be governed by and construed in accordance with the laws of the State of New York. This Agreement contains the entire agreement of the parties, and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter. Consignee may change the terms and conditions of this Agreement from time to time. If Consignee changes any terms of this Agreement, Consignee will notify Consignor via email and Consignor will be required to follow the link in the email and click "Agree" to accept the new terms. The most current version of this Agreement will be available at www.truefacet.com/consignment-terms
CONSIGNOR ACKNOWLEDGES THAT CONSIGNOR HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. .