HEART’S CONTENT CONSIGNMENT INC. is engaged in the marketing and sale of previously used clothing, footwear, accessories etc.
The Consignor (the "Consignor") owns or controls and has the right to sell certain items, described and itemized on HEART’S CONTENT CONSIGNMENT INC.’s online and other forms, or collected from the Consignor by an employee of HEART’S CONTENT CONSIGNMENT INC. as part of its consignor service (collectively, the "Property"). The Consignor wishes to sell that Property.
The Consignor desires that the Property be sold on consignment by HEART’S CONTENT CONSIGNMENT INC., and HEART’S CONTENT CONSIGNMENT INC. wishes to sell that Property on behalf of the Consignor. This means that the Consignor transfers possession but not ownership of the Property to HEART’S CONTENT CONSIGNMENT INC., 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 HEART’S CONTENT CONSIGNMENT INC.’s Terms of Service (see HEART’S CONTENT CONSIGNMENT INC.’s website at www.heartscontentconsignment.ca, which terms may be amended from time to time at HEART’S CONTENT CONSIGNMENT INC.’s sole discretion), the parties agree as follows:
The Consignor makes the Property available to HEART’S CONTENT CONSIGNMENT INC. on a consignment basis and HEART’S CONTENT CONSIGNMENT INC. accepts the Property from the Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to HEART’S CONTENT CONSIGNMENT INC. when HEART’S CONTENT CONSIGNMENT INC. takes physical possession of the Property.
The Consignor retains all risk of loss or damage to the Property until that time; provided, however, that if the Consignor uses HEART’S CONTENT CONSIGNMENT INC.’s approved method of shipment to HEART’S CONTENT CONSIGNMENT INC., specifically using HEART’S CONTENT CONSIGNMENT INC.‘s label and current integrated shipping arrangement (the "Label"), then HEART’S CONTENT CONSIGNMENT INC. will insure or arrange for a third party to insure the Property against loss or damage in transit, up to a maximum of $100 per shipment. A "shipment" means items of Property shipped together under one Label.
HEART’S CONTENT CONSIGNMENT INC. 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 HEART’S CONTENT CONSIGNMENT INC.’s possession, and shall provide evidence of such insurance coverage to the Consignor upon request. If the Property is damaged or lost while in HEART’S CONTENT CONSIGNMENT INC.’s possession, then a Property Sale, as defined below, will be deemed to have occurred and HEART’S CONTENT CONSIGNMENT INC. will reimburse the Consignor in the amount of the Consignor's Commission (also defined below), based on the damaged or lost Property's Net Selling Price(s), as defined below, and as determined solely by HEART’S CONTENT CONSIGNMENT INC.
HEART’S CONTENT CONSIGNMENT INC. only accepts items of Property which:
- it determines in it’s sole discretion to be in very good to excellent condition;
- it determines in it’s sole discretion to be authentic; and
- that is made available to HEART’S CONTENT CONSIGNMENT INC. in full compliance with the representations and warranties the Consignor makes pursuant to this Agreement ("Acceptance").
Upon receipt, HEART’S CONTENT CONSIGNMENT INC. 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 HEART’S CONTENT CONSIGNMENT INC.’s quality standards will not be Accepted and will be donated to an entity of HEART’S CONTENT CONSIGNMENT INC.’s choice.
Additional Charges: A $20 charge will be deducted from your commission payouts if your shipment contains more than 10% (1 in 10) of items we cannot immediately list for sale due to condition, stains, missing brand and/or size tags, or not being on our accepted list without pre-approval.
HEART’S CONTENT CONSIGNMENT INC. reserves the right to not place any of the Property for sale for any reason. HEART’S CONTENT CONSIGNMENT INC. further reserves the right to remove Property from its website at its sole discretion, including if the items demonstrate flaws or damages not detected upon initial intake, or if there is a doubt to the authenticity and ownership of the Property, or if the Consignor’s representations to HEART’S CONTENT CONSIGNMENT INC. concerning the Property are inaccurate in any respect.
The “Consignment Period” for an item of Property begins on the day the item is listed for sale on HEART’S CONTENT CONSIGNMENT’S website (the “Effective Date”) and ends 91 days thereafter.
Subject to the Consignor's performance of its obligations under this Agreement, HEART’S CONTENT CONSIGNMENT INC. will display on its website and make reasonable efforts to sell the Property during the Consignment Period. The Consignor acknowledges and agrees that:
(a) HEART’S CONTENT CONSIGNMENT INC. 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.
(b) HEART’S CONTENT CONSIGNMENT INC. may offer price reductions or discounts during the Consignment Period, at its sole discretion and without notice to the Consignor.
(c) Standard reductions will be:
- 25% if an item sells between 31 - 60 days, and
- 50% if an item sells between 61 - 90 days.
(d) Property which remains unsold after 91 days will be removed from the Consignor's inventory, will become property of HEART’S CONTENT CONSIGNMENT INC., and will be disposed of in a manner of HEART’S CONTENT CONSIGNMENT INC.’s choice, including but not limited to, donations to a local charity or organization as appropriate.
(e) HEART’S CONTENT CONSIGNMENT INC. shall use its best efforts to promote the sale of the Property, including from time to time featuring an item of Property on its social media accounts.
The Consignor understands that while HEART’S CONTENT CONSIGNMENT INC. agrees to use its best efforts to obtain a sale of the Property, there is no guarantee a sale will occur. The Consignor further understands that HEART’S CONTENT CONSIGNMENT INC. makes no guarantee, representation, or warranty with respect to sale price of any consigned item or its sale.
HEART’S CONTENT CONSIGNMENT INC. agrees to collect and pay Ontario sales taxes.
- TITLE TO PROPERTY
A "Property Sale" shall be deemed to have occurred where an item of Property is sold by HEART’S CONTENT CONSIGNMENT INC. and not lost, stolen, damaged or destroyed while in HEART’S CONTENT CONSIGNMENT INC.’s possession. Title to and ownership of the Property will remain with the Consignor until a Property Sale occurs or items expire at 91 days.
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").
The 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:
- Commission in an amount equal to 40% of the Net Selling Price
The Commission shall be the Consignor's sole compensation under this Agreement.
The timing of processing Commission payments will typically be completed on the 15th of the following calendar month after the sale. In the event of any dispute between the Parties, Commissions will not be paid until such dispute is resolved.
All sales and commission will be final, however HEART’S CONTENT CONSIGNMENT INC., as the Consignor’s agent, is authorized to accept and return and rescind the sale of any Property at any time and notwithstanding any limitations as to the time set forth in this Agreement if HEART’S CONTENT CONSIGNMENT INC., in its best judgement, determines either that an item of Property is defective or is a forgery or is not the property of the Consignor. In any such event, HEART’S CONTENT CONSIGNMENT INC. is further authorized to refund or credit the purchaser with the sale price of the returned Property and the Consignor agrees to pay HEART’S CONTENT CONSIGNMENT INC. on request an amount equal to the refund or credit to the purchaser if HEART’S CONTENT CONSIGNMENT INC. has already remitted to the Consignor the net proceeds of the rescinded sale, whereupon HEART’S CONTENT CONSIGNMENT INC. will return the item to the Consignor or legal authorities, if requested by them as evidence.
This Agreement will commence as of the Effective Date and will continue until the completion of the Consignment Period.
HEART’S CONTENT CONSIGNMENT INC. may terminate this Agreement at any time, for any reason. Termination shall be effective when HEART’S CONTENT CONSIGNMENT INC. serves written notice thereof to the Consignor.
The Consignor agrees not to withdraw any part of the consigned Property.
- NO ASSIGNMENT
The Consignor may not assign, transfer, or delegate any of its rights under this Agreement without HEART’S CONTENT CONSIGNMENT INC.’s prior written consent. Any prohibited assignment shall be void.
HEART’S CONTENT CONSIGNMENT INC. 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 HEART’S CONTENT CONSIGNMENT INC.’s liability exceed the actual amount received for selling consignor’s Property.
The 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 provincial or federal law, or any administrative regulation.
The Consignor hereby agrees to indemnify and hold HEART’S CONTENT CONSIGNMENT INC. 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 HEART’S CONTENT CONSIGNMENT INC. 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.
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 Province of Ontario, without regard to the conflict of laws provisions. Each Party irrevocably submits to the exclusive personal jurisdiction of the federal and provincial courts located in Rockland, Ontario, Canada 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 provincial courts located in Rockland, Ontario, Canada 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.
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.
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.