CONSIGNMENT AGREEMENT
These terms and conditions create a legally binding contract (the “Agreement”) between you and From Runway With Love LLC, a New York limited liability company (“FRWL,” “We,” “Us,” or “Our”). Please read this Agreement carefully. To confirm your understanding and acceptance of the Agreement, click “Agree” or sign the Agreement where indicated below. You must agree to this Agreement if you wish to consign goods with or through FRWL.
ONCE YOU AGREE TO THIS AGREEMENT, IT WILL REMAIN IN EFFECT UNTIL EITHER YOU OR FRWL TERMINATES IT IN ACCORDANCE WITH SECTION 9 BELOW.
1. OVERVIEW
FRWL markets and sells designer and bridge line clothing, shoes, handbags and accessories, home goods, fine jewelry, watches and other items. You would like FRWL to sell the items that you have sent to us or that we have collected from you (collectively, the “Property”) on a consignment basis on fromrunwaywithlove.com (the “Site”), other similar third-party site(s) and/or through social media (collectively, “Sales Platforms”). This means that you, not FRWL, will still own the Property, even after you transfer physical possession of the Property to FRWL. After FRWL receives or picks up Property from you, FRWL will send you an email in accordance with Section 19 below confirming the items of Property received and the initial list price (which is subject to change in accordance with Section 6 below), determined at FRWL’s sole discretion unless you and FRWL have previously otherwise agreed in writing to a specific price at which a specific item must be sold. Items are then considered “Accepted” for purposes of this Agreement. Accepted Items will then be immediately available for sale on Sales Platforms.
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
FRWL accepts the Property from you on a consignment basis only. You are responsible for all risk of loss or damage to the Property until FRWL takes physical possession of it; however, if you use FRWL’s approved, pre-paid shipping label and approved method of shipment to ship your Property, FRWL will assume the risk of loss or damage to the Property upon shipment. A “shipment” means items of Property that are shipped together under one FRWL approved, pre-paid shipping label. If an item of Property is damaged, stolen, or lost while in FRWL’s possession, it will be treated as Sold (defined in Section 7 below), and FRWL will pay you a Commission (defined in Section 8 below) on that item. The Commission will be based on the damaged, stolen, or lost item’s estimated Net Selling Price (defined in Section 8 below), which will be determined solely by FRWL. Except as otherwise provided by law, this remedy shall constitute your sole remedy and entire recourse against FRWL for Property that is damaged, stolen, or lost while in FRWL’s possession and is in lieu of any other remedy otherwise available as a matter of law or equity.
3. PROPERTY ACCEPTANCE CONDITIONS
Upon receipt, FRWL will evaluate each item of Property to determine, in its sole discretion, its authenticity, quality, and value. The item’s condition will affect the valuation. FRWL only Accepts Property for consignment: (a) that FRWL determines in its sole discretion to be in very good to excellent condition; (b) that is listed in FRWL’s current Designer Directory at the time of evaluation (see www.fromrunwaywithlove.com/designers for items currently being accepted); (c) that FRWL determines in its sole discretion to be authentic; and (d) for which the representations and warranties you make in Section 12(a) below are true and correct. Property that does not meet the above requirements will not be accepted and will be either (1) returned to you at your expense or (2) at your request and direction, FRWL will either (a) donate your items to a charity of FRWL’s choice (see Sections 4 and 5 below for more information) or (b) discard your items.
4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
FRWL is a legitimate business and does not deal in unauthenticated, counterfeit or stolen items. You are responsible for ensuring the authenticity and ownership of all Property you provide to us. If FRWL cannot confirm the authenticity or ownership of any item of Property you have provided, it shall have the right in its sole discretion to refuse to Accept the item. If FRWL determines at any time that an item of Property is counterfeit (or is suspected of being counterfeit) or stolen (or is suspected of being stolen), FRWL shall notify you that it has made such a determination and you will have an opportunity to provide proof of purchase, authenticity and/or ownership, as the case may be, acceptable to FRWL in its sole and absolute discretion. You acknowledge and agree that any item FRWL finally determines to be counterfeit or stolen will not be returned to you and, if stolen, will be turned over to the proper authorities, or, if counterfeit, will either be destroyed or turned over to the proper authorities. You acknowledge and understand that FRWL is subject to laws and regulations relating to claims that consigned items are counterfeit, have been stolen, or otherwise violate applicable law. FRWL takes such claims seriously and will cooperate with law enforcement in all investigations, including sharing the name of any consignor and his or her contact information.
5. CONSIGNMENT PERIOD AND RETURN OF PROPERTY
(a) The “Consignment Period” for each item of Property begins on the date FRWL Accepts the item for consignment and ends 365 days thereafter, even if this Agreement has been terminated during that time by you or FRWL. At any time during the Consignment Period, and subject to this provision, you may request in writing that FRWL return the item (a “Return Request”), so long as the item has not already been Sold. Once FRWL receives your Return Request, it will use commercially reasonable efforts to remove the item from Sales Platform(s) before it is sold. However, FRWL cannot guarantee that its efforts in this regard will be successful. It is your responsibility to ensure that FRWL has your most current contact information and mailing address.
(b) Subject to subsection (a) above, FRWL will return the item to you within 30 days. FRWL will charge you the costs of return shipping, handling, insurance and packaging (“Return SHIP”) and, in such case, such costs shall be deducted from your pending Commissions. If you do not have enough pending Commissions available to cover the costs of Return SHIP, FRWL shall have no obligation to return the item to you unless and until you pay FRWL in advance for the estimated costs of Return SHIP. In addition to Return SHIP, FRWL will charge you a fee of $15 per item, which fee reflects FRWL’s up-front costs of storing, cataloging, and photographing the item in preparation for sale.
(c) If an item remains unsold at the end of the Commission Period, FRWL will contact you and, at your option : (i) return the item to you, at your cost and expense, (ii) discard the item, or (iii) donate the item to a charity of FRWL’s choice. If at the end of the Commission Period, FRWL is unable to contact you at the email or physical address it has on file for you in accordance with Section 19 below, the item will be donated to a charity of FRWL’s choice or discarded at FRWL’s option. In the event FRWL donates any item to a charity of FRWL’s choice, you will not be entitled to a tax receipt or a tax deduction relating to the donation.
6. EFFORTS TO SELL; PRICE
So long as you comply with this Agreement, FRWL will display your Property on Sales Platform(s) and make commercially reasonable efforts to sell the Property. Unless FRWL and you have otherwise agreed in writing to a specific price at which a specific item must be sold, you acknowledge and agree that:
(a) FRWL in its sole discretion will determine the initial selling price for each item of Property (the “Initial Sale Price”) based on its evaluation of that item, together with its determination of the current market price for that item;
(b) In order to market and promote the sale of each item, FRWL may in its sole discretion apply an immediate 20% discount to the item, which will affect the item’s Initial Sale Price.
(c) FRWL may offer additional discounts and promotions during the Consignment Period, at its sole discretion and without notice to you, as a means to efficiently market and sell the Property.
7. TITLE TO PROPERTY
You will continue to own and have title to each item of Property until that item is “Sold”. An item will be considered Sold when:
(a) it is sold by FRWL or another Sales Platform to a customer and not returned to FRWL or such other Sales Platform within the period specified in FRWL’s then-current Return Policy (see www.fromrunwaywithlove.com/returns) or such other Sales Platform’s then-current return policy; or
(b) it is lost, stolen, damaged, or destroyed while in FRWL’s possession.
8. COMMISSIONS AND PAYMENT
(a) For purposes of this Agreement, “Net Selling Price” means the price at which an item of Property is Sold, less applicable discounts, promotions and third party commissions relating to Sales Platform(s), and excluding taxes and shipping.
(b) The “Commission Rates” that are used to calculate the commission (the “Commission”) you receive for each item of Property that is Sold is:
| TIER | Net Selling Price Per Item ($) | Commission Rate (%) |
|---|---|---|
| 1st Tier | 1-3,000 | 70% |
| 2nd Tier | 3,001-6,000 | 75% |
| 3rd Tier | 6,001-10,000 | 80% |
| 4th Tier | 10,001 and above | 85% |
FRWL will pay you a Commission on each item of Property that is Sold. The Commission shall be equal to the item’s Net Selling Price multiplied by the applicable Commission Rate. The Commissions you receive for Sales of your Property are the sole compensation you will receive under this Agreement.
(c) FRWL may also, from time to time in its sole discretion, (i) for promotional reasons and without notice, 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 and (ii) make other changes to its Commission structure and the Commission Rates upon at least fourteen (14) days’ prior written notice to you as described in Section 13 below. Any changes to FRWL’s Commission structure and/or Commission Rates shall be prospective only, applying only to items of your Property Accepted for consignment after any changes have been implemented.
(d) For items of your Property Sold on the Site, FRWL typically begins processing Commission payments on the 15th day of every month for Sales that occurred during the previous month. For example, payments processed on September 15th would cover the sales period from August 1 through August 31. For items of your Property Sold on Sales Platforms other than the Site, FRWL will make payment to you within two business days after FRWL receives payment from such Platform. Payments will be made to you by physical check, direct deposit or, if you elect another payment method acceptable to FRWL, by such payment method. 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.
(e) If there is a dispute between you and FRWL, FRWL shall 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. FRWL may withhold any Commissions due to you (including any due for Sold items of Property not subject to the dispute) in full or partial satisfaction of any amounts you owe to FRWL.
9. TERMINATION
You and FRWL may each terminate this Agreement in writing at any time, for any reason. Termination will be effective on the date of such notice and the costs listed under Section 5 will apply.
10. NO ASSIGNMENT
You may not assign this Agreement or any interest you have in it without FRWL’s prior written consent. Any prohibited assignment is null and void ab initio. FRWL may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole and absolute discretion, including, without limitation, to someone who acquires FRWL, whether by merger, consolidation, equity purchase or a purchase of all or substantially all of FRWL’s assets.
11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF FRWL’S SERVICES IS AT YOUR SOLE RISK. FRWL’S CONSIGNMENT AND OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FRWL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND ACCURACY, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
FRWL MAKES NO WARRANTY THAT (A) FRWL’S SERVICES WILL MEET YOUR REQUIREMENTS OR (B) FRWL’S SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM FRWL OR THROUGH OR FROM THE SITE OR FRWL’S SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
FRWL AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, OWNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR FOR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR FOR OTHER INTANGIBLE LOSSES (EVEN IF FRWL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE FRWL’S SERVICES OR THE SITE; (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 FRWL’S SERVICES OR THIS AGREEMENT. IN NO EVENT WILL FRWL’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT IT HAS ACTUALLY RECEIVED AS A RESULT OF SELLING YOUR PROPERTY HEREUNDER. THE FOREGOING DISCLAIMERS AND LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF FRWL’S BUSINESS, AND FRWL 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.
12. YOUR REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
(a) You hereby represent and warrant that (i) you have good and marketable title to each item of Property and have the right to consign and sell the Property; (ii) none of the Property is subject to any liens or other encumbrances; (iii) the Property does not include counterfeit or stolen goods; and (iv) the Property does not infringe upon, misappropriate, or violate any trademark, copyright, or other intellectual property or other proprietary right of any third party, any state or federal law, or any administrative regulation.
(b) You hereby indemnify and hold FRWL and its subsidiaries, affiliates, officers, agents, employees, partners, members, owners and licensors (collectively, the “Indemnified Parties”) harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs (on an “as incurred” basis), incurred by the Indemnified Parties as a result of or arising in any way out of (i) your breach of any provision of this Agreement and (ii) FRWL’s display, attempted sale or actual sale of the Property on any Sales Platform, including but not limited to any civil or criminal suits over (a) the authenticity or ownership of the Property, (b) the legality of sales of the Property, or (c) violations of intellectual property rights, including, without limitation, copyrights and/or trademarks.
13. AMENDMENTS TO THIS AGREEMENT
FRWL may update or change any of the terms and conditions of this Agreement (including, without limitation, Commission structure and Commission Rates as provided for in Section 8(c) above) at any time in its sole discretion upon fourteen (14) days’ prior written notice to you in accordance with Section 19 below. Revised terms will not apply to items already Accepted for consignment prior to the effective date of those revised terms. Except as provided in this Section 13, you shall 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 Section 9 above before the effective date of the revised terms.
14. ENTIRE AGREEMENT
This Agreement sets forth the final, complete, and exclusive agreement between you and FRWL regarding the subject matter hereof, and terminates and supersedes all prior understandings or agreements on such subject matter. Except as set forth in Sections 8(c) and 13 above, this Agreement may be modified only by a writing signed by you and FRWL.
15. NO IMPLIED WAIVER
Any failure by you or FRWL to enforce any provision of this Agreement shall not constitute a waiver of such provision or of any other provision of this Agreement.
16. SEVERABILITY
If any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of the execution of this Agreement.
17. 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 FRWL (including, without limitation, Section 12(b) relating to indemnification) will survive the termination of this Agreement.
18. HEADINGS
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
19. NOTICES
If you have any questions or comments about this Agreement, the Site or FRWL’s services or wish to terminate this Agreement, please contact FRWL by email at legal@fromrunwaywithlove.com. You also may write to FRWL at:
From Runway with Love LLC Attn: Legal Department 55 West 25th Street, Suite 4Q New York, New York 10010
FRWL shall provide all notices to you at the email address or physical address that you have provided to FRWL. You are solely responsible keeping that information current with FRWL. You hereby agree that all agreements, notices, disclosures, and other communications that FRWL provides electronically to you satisfy any legal requirement that such communications be in writing.
20. DISPUTE RESOLUTION
(a) You acknowledge and agree that you and FRWL each are waiving the right to a trial by jury. You further acknowledge and agree that you are waiving your right to participate as a plaintiff as a class member in any class action proceeding against or involving FRWL. Further, unless you and FRWL agree otherwise in writing, a court of competent jurisdiction may not consolidate more than one person’s claims and may not preside over any form of class action proceeding against or involving FRWL.
(b) The validity, interpretation and enforcement of this Agreement, matters arising out of or related to this Agreement or its making, performance or breach, and related matters shall be governed by the internal laws of the State of New York (without reference to choice of law doctrine). Any legal action or proceeding concerning the validity, interpretation and enforcement of this Agreement, matters arising out of or related to this Agreement or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues.
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