IF NOT SOONER TERMINATED AS PROVIDED HEREIN, THIS AGREEMENT RENEWS AUTOMATICALLY FOR SUCCESSIVE SIX-MONTH TERMS ON THE FINAL DAY OF THE MONTH THAT IS SIX MONTHS FROM THE DATE THE CONSIGNOR EXECUTES THIS AGREEMENT (THE "EFFECTIVE DATE" AND THE "TERM").
Top Drawer is engaged in the marketing and sale of luxury, designer, and contemporary clothing items, jewelry, watches, and accessories.
You, the consignor (the "Consignor") own or controls and have the right to sell a certain item or items, described and itemized on Top Drawer's online and other media, or physically collected by or delivered to Top Drawer as part in furtherance of its consignor service (such items, the "Property"). Consignor wishes to sell that Property.
Consignor desires that the Property be sold on consignment by Top Drawer, and Top Drawer wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to Top Drawer, subject to these Consignment Terms (this "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 Top Drawer's Terms of Service, which are incorporated herein by reference as if restated in their entirety (see Top Drawer's website at www.shoptopdrawer.net), which terms may be amended from time to time at Top Drawer’s sole discretion and without notice to Consignor, the parties agree as follows:
2. DELIVERY OF PROPERTY; RISK OF LOSS
Consignor makes the Property available to Top Drawer on a consignment basis and Top Drawer accepts the Property from Consignor on a consignment basis only.
Top Drawer will exercise commercially reasonable care in holding the Property, but is not responsible for Consignor's loss due to flood, fire, theft, vandalism, natural disaster, breakage, or any other damages.
3. ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS
Top Drawer only accepts Property: (1) it determines in its sole discretion to be in acceptable condition given the type and age of the Property; (2)) it determines in its sole discretion to (a) be authentic or (b) lack any reason to believe it is not authentic; and (3) that is made available to Top Drawer in full compliance with the representations and warranties Consignor makes pursuant to this Agreement ("Acceptance").
Upon receipt, Top Drawer will evaluate the Property to determine its authenticity, quality and value. Condition issues will affect the valuation. Property that does not meet Top Drawer'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).
4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
Consignor is responsible for ensuring the authenticity of all items that Consignor offers or provides for consignment. In the event Top Drawer determines, for any reason, it cannot confirm 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 Top Drawer determines at any time that an item of Property is counterfeit or of unconfirmed authenticity given facts arising after Acceptance of the item, Top Drawer shall notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item Top Drawer determines to be counterfeit will be returned to the Consignor at the consignor's expense.
Consignor acknowledges and agrees that Top Drawer is subject to laws and regulations relating to claims that consigned items have been stolen. Top Drawer takes reports of stolen goods seriously and will cooperate with law enforcement in all investigations.
5. CONSIGNMENT PERIOD AND RETURN OF PROPERTY
The "Consignment Period" for an item of Property begins on the Effective Date and ends 6 months thereafter, whether or not such Consignment Period extends beyond the term of this Agreement. At any time during the Consignment Period, and subject to this provision, Consignor may request Top Drawer return all or some of the Property, upon written notice to Top Drawer and so long as the item of Property has not already been sold (the "Return Request"). Upon such Return Request, Top Drawer will make its best efforts to remove the item of Property from the site before it is sold.
(a) If the Return Request is made by the Consignor, the Property will be returned within 30 days of the Return Request. Top Drawer reserves the right to pass on all costs of such returns to the Consignor and in such case, all costs of return shall be deducted as available from Consignor's pending Commissions; where such pending Commissions are not available, Top Drawer shall have no obligation to return such Property unless and until Consignor has provided for the cost of return shipping at its sole expense.
Additionally, Consignor acknowledges and agrees if Consignor requests the return of Property during the consignment period, Top Drawer reserves the right to charge Consignor a reimbursement of $15 per every item of Property, which reimbursement reflects the up-front costs to Top Drawer of storing, cataloging and photographing the Property in preparation for sale.
6. EFFORTS TO SELL; PRICE
Subject to Consignor's performance of its obligations under this Agreement, Top Drawer will display on its site, at trunk shows, and/or at personal appointments, and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that:
(a) Top Drawer 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. Though price ranges or estimates may be given for Property at an initial consignment appointment, Top Drawer reserves the right to adjust prices or refuse items found to have flaws during the Property entering and tagging process.
(b) Top Drawer may offer discounts and promotions during the Consignment Period, at its sole discretion and without notice to Consignor as a means to efficiently market and sell the Property, unless Top Drawer and Consignor have otherwise mutually agreed in writing to a specific price at which an item must be sold.
7. TITLE TO PROPERTY
Title to and ownership of the Property will remain with Consignor until a Property Sale occurs. A "Property Sale" shall be deemed to have occurred where an item of Property is:
(a) Sold by Top Drawer and not returned to Top Drawer within the period specified in Top Drawer's then-effective Return Policy (see www.shoptopdrawer.net/returns);
(b) Lost or stolen from Top Drawer's stock on hand;
(c) Damaged or destroyed while in Top Drawer's possession.
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, 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) A Commission in an amount equal to 50% of the Net Selling Price during the Commission Period, as defined below;
Top Drawer 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.
Top Drawer typically begins processing Commission payments on the 15th day of every month for the sale period beginning on the 1st of the previous month to the last day of the previous month. For example, payments processed on April 15th would cover the sale period from March 1 through March 31. Such payments will be made to the Consignor by physical check, PayPal, or Venmo (as selected by the Consignor in his/her initial consignment paperwork).
The timing of processing and delivering Commission payments will vary by the payment method selected by Consignor.
In the event of any dispute between the Parties, Top Drawer shall have no obligation to pay any Commission or other amount otherwise due to Consignor, including without limitation amounts unrelated to the dispute, unless and until such dispute is resolved. Top Drawer shall be entitled to withhold any Commissions (including any otherwise due for items of Property not then subject to the dispute) in full or partial satisfaction of any amounts due to Top Drawer.
9. DISPOSITION OF UNSOLD PROPERTY
At the end of the consignment period, all unsold Property will be returned to the Consignor or donated to charity (as selected by the Consignor in his/her initial paperwork). All unsold Property to be returned to the Consignor will be returned at the Consignor's expense.
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.
11. NO ASSIGNMENT
Consignor may not assign this Agreement or any interest herein without Top Drawer's prior written consent and any prohibited assignment shall be void.
12. NO PROPERTY WARRANTIES
Top Drawer does not make any representation or warranty either express or implied about any item of Property, except to the extent a warranty is required by law and cannot be disclaimed.
TOP DRAWER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL TOP DRAWER'S LIABILITY HEREUNDER EXCEED THE AMOUNT IT HAS ACTUALLY RECEIVED AS A RESULT OF SELLING CONSIGNOR'S PROPERTY HEREUNDER. THE FOREGOING DISCLAIMER AND LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF TOP DRAWER'S BUSINESS, AND TOP DRAWER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
13. 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 Top Drawer 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 Top Drawer's 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.
14. GOVERNING LAW
This Agreement is governed by the laws of the State of South Carolina, without regard to its conflict-of- law provisions. The Parties hereby irrevocably consent to the jurisdiction of and venue in the courts of Spartanburg, South Carolina with respect to any matter arising under this Agreement.
15. ENTIRE AGREEMENT
This Agreement sets forth the final, complete and exclusive agreement of the Parties regarding the subject matter hereof, and terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a writing duly executed by both Parties.
16. NO IMPLIED WAIVER
Any failure of either Party to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision herein.
In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this may remain valid in the sole discretion of Top Drawer and enforceable as though such term were absent upon the date of its execution.
18. 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.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
Written notice for the purposes of this Agreement may be given by email or text communication; in all such cases notice shall not be deemed to have occurred until the recipient responds to such electronic communication. Other acceptable forms of written communication include registered mail addressed to:
Top Drawer, LLC
844 South Pine Street
Spartanburg, SC 29302