IF NOT SOONER TERMINATED AS PROVIDED HEREIN, THIS AGREEMENT RENEWS AUTOMATICALLY FOR SUCCESSIVE ONE-YEAR TERMS ON THE FINAL DAY OF THE MONTH THAT IS 6 MONTHS FROM THE DATE THE SELLER EXECUTES THIS AGREEMENT (THE "EFFECTIVE DATE" AND THE "TERM").
Assemblage is engaged in the marketing and sale of pre-owned clothing, shoes, and accessories;
Seller owns or controls and has the right to sell certain items, described and itemized on Assemblage's online and other forms, or collected from Seller (the "Seller") by an employee of Assemblage as part of its Service (collectively, the "Property"). Seller wishes to sell that Property.
Seller desires that the Property be sold by Assemblage, and Assemblage wishes to sell that Property on behalf of Seller. This means that Seller transfers possession but not ownership of the Property to Assemblage, subject to these Seller 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 Assemblage's Terms of Service (see Assemblage’s website at www.assemblagecollection.com), which terms may be amended from time to time at Assemblage’s sole discretion, the parties agree as follows:
- DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Seller makes the Property available to Assemblage and Assemblage accepts the Property from Seller, with the ownership of the Property still belonging to Seller. All risk of loss or damage of the Property will pass to Assemblage only when Assemblage takes physical possession of the Property. Seller retains all risk of loss or damage to the Property until that time; however, if Seller uses Assemblage's approved method of shipment to Assemblage, specifically using Assemblage's label and current integrated shipping arrangement (the "Label"), then Assemblage will insure or arrange for a third party to insure each Property shipment against loss or damage in transit. A "shipment" means items of Property shipped together under one Label.
Subject to the foregoing, Assemblage 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 Assemblage’s possession, and shall provide evidence of such insurance coverage to Seller as and when requested. If the Property is damaged or lost while in Assemblage's possession, then a Property Sale, as defined below, will be deemed to have occurred and Assemblage will reimburse Seller in the amount of the Seller’s Payout (also defined below), based on the damaged or lost Property's Net Selling Price(s), as defined below, and as determined solely by Assemblage. This remedy shall constitute the sole remedy and entire recourse of Seller against Assemblage and is in lieu of any other remedy available as a matter of law or equity.
- ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS
Assemblage only accepts Property: (1) it determines in its sole discretion to be in excellent to pristine condition; (2) that is listed in its Designer Directory (see Assemblage's website's Accepted Brands for items currently being accepted); (3) it determines in its sole discretion to be authentic; (4) that has potential to be profitably sold through Assemblage selling channels (in Assemblage’s sole discretion); and (5) that is made available to Assemblage in full compliance with the representations and warranties Seller makes pursuant to this Agreement ("Acceptance").
Upon receipt, Assemblage will evaluate the Property to determine its authenticity, quality and value. Condition issues will affect the valuation. Property that does not meet Assemblage's quality standards will not be Accepted and will either be (1) returned to Seller at Seller's expense; or (2) donated/recycled through Assemblage partners (see "Unauthenticated Items" and "Selling Period and Return of Property" below). This decision belongs to the Seller. If the Seller is unable to be contacted after reasonable attempts, Assemblage will pursue actions that Assemblage deems appropriate(in Assemblage’s sole discretion).
- UNAUTHENTICATED, COUNTERFEIT OR STOLEN ITEMS
Seller is responsible for ensuring the authenticity of all items that Seller offers or provides for selling. In the event Assemblage determines it cannot confirm the authenticity of any item of Property offered or provided for sale, it shall have the right in its sole discretion to refuse to Accept the item. In the event that Assemblage determines at any time that an item of Property is counterfeit, Assemblage shall notify Seller that it has made such determination. Seller acknowledges and agrees that any item Assemblage determines to be counterfeit will not be returned to Seller and will be destroyed.
Seller acknowledges and agrees that Assemblage is subject to laws and regulations relating to claims that Property have been stolen. Assemblage takes reports of stolen goods seriously and will cooperate with law enforcement in all investigations.
4.a. PRODUCT VALUATION AND PAYOUT DETERMINATION
Assemblage will determine, in Assemblage’s sole discretion, whether Assemblage will accept the Property and proceed to notify Seller of the decision. If the Property is accepted, Assemblage will provide Seller with the price Seller would receive upon a successful sale (“Payout”). The price quoted to Seller will be net of all fees incurred (listing, shipping and Assemblage fees for providing the Service). Once notified of the Payout, Seller can decide to (1) accept the Service and proceed to have Assemblage sell the Property; or (2) deny the Service and request to have the Property returned to Seller at Seller’s expense. If Assemblage is unable to sell your item in 6 months, Assemblage will give Seller the option to (1) have the Property returned with the shipping cost provided by Assemblage; (2) relist the Property with a revised Payout; or (3) donate/recycle/upcycle the Property.
- SELLING PERIOD AND RETURN OF PROPERTY
The "Selling Period" for an item of Property begins on the Effective Date and ends 6 months thereafter. At any time during the Selling Period, and subject to this provision, Seller may request Assemblage return all or some of the Property, upon written notice to Assemblage and so long as the item of Property has not already been sold (the "Return Request"). Upon such Return Request, Assemblage 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 within 30 days from Acceptance, as defined above, the Property will be returned within 30 days of the Return Request. Assemblage reserves the right to pass on all costs of such returns to the Seller and in such case, all costs of return shall be deducted as available from Seller's pending Payouts; where such pending Payouts are not available, Assemblage shall have no obligation to return such Property unless and until Seller has provided for the cost of return shipping at its sole expense.
Additionally, Seller acknowledges and agrees if Seller requests the return of Property within this first 30 days after Acceptance, Assemblage reserves the right to charge Seller a fee of $15 per every item of Property, which fee reflects the up-front costs to Assemblage of storing, cataloging and photographing the Property in preparation for sale.
(b) If the Return Request is made more than 30 days after acceptance, the Property will be returned within 30 days of Return Request and all costs of returning the Property to the Seller will be borne by Assemblage.
- EFFORTS TO SELL; PRICE
Subject to Seller’s performance of its obligations under this Agreement, Assemblage will display on its site and/or sales channels and make commercially reasonable efforts to sell the Property. Seller acknowledges and agrees that:
(a) Assemblage in its sole discretion will determine the selling price for the Property (the "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) Discounts, promotions, price increases and other changes to the Sale Price will not affect the Payout;
(c) Assemblage, at its sole discretion and without notice to Seller, as a means to efficiently market and sell the Property, will list the Property on one or some of the available sales channels available, including, but not limited to, third-party marketplaces and platforms.
- TITLE TO PROPERTY
Title to and ownership of the Property will remain with Seller until a Property Sale occurs. A "Property Sale" shall be deemed to have occurred where an item of Property is:
(a) Sold by Assemblage and not returned to Assemblage within the period specified in Assemblage's then-current Return Policy;
(b) Lost or stolen from Assemblage's stock on hand;
(c) Damaged or destroyed while in Assemblage's possession.
The Payout shall be Seller’s sole compensation under this Agreement.
The Payout will be processed and delivered using PayPal.
Assemblage begins processing payouts on the 15th 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 May 15th would cover the sale period from April 1 to April 30. Such payouts will be made to the Seller by physical check or PayPal.
In the event of any dispute between the Parties, Assemblage shall have no obligation to pay any Payout or other amount otherwise due to Seller, including without limitation amounts unrelated to the dispute, unless and until such dispute is resolved. Assemblage shall be entitled to withhold any Payouts (including any otherwise due for items of Property not then subject to the dispute) in full or partial satisfaction of any amounts due to Assemblage.
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, Selling Period and Return of Property, will apply.
- NO ASSIGNMENT
Seller may not assign this Agreement or any interest herein without Assemblage’s prior written consent and any prohibited assignment shall be void.
- NO PROPERTY WARRANTIES
Assemblage 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.
ASSEMBLAGE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL ASSEMBLAGE'S LIABILITY HEREUNDER EXCEED THE AMOUNT IT HAS ACTUALLY RECEIVED AS A RESULT OF SELLING SELLER'S PROPERTY HEREUNDER. THE FOREGOING DISCLAIMER AND LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF ASSEMBLAGE'S BUSINESS, AND ASSEMBLAGE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
- SELLER’S REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
Seller hereby represents and warrants that it has good and marketable title to each item of Property and has the right to 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. Seller hereby agrees to indemnify and hold Assemblage harmless from all damages, suits, litigation, awards, and costs, including but not limited to attorney's' fees and costs, as a result of or arising out of in any way Assemblage'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.
- GOVERNING LAW
This Agreement, or the breach thereof, and all claims relating to or arising out of this Agreement, whether in contract, tort or otherwise, shall be governed by the laws of Nevada, without regard to its conflicts of laws principles. The Parties hereby irrevocably consent to the jurisdiction of a federal or state court located in Clark County with respect to any matter arising under this Agreement.
- AMENDMENTS TO THIS AGREEMENT
Assemblage may update or change any of the terms and conditions of this Agreement at any time and in its sole discretion by notifying Seller at the email address or physical address Seller has provided in this Agreement. Seller hereby agrees that all agreements, notices, disclosures, and other communications that Assemblage provides electronically satisfy any legal requirement that such communications be in writing. Seller shall be bound by all revised terms. If Seller does not agree to any revised terms of this Agreement, including any change to the Payout, Seller’s sole recourse is to terminate this Agreement in accordance with the Section titled “TERMINATION” before the effective date of the revised terms. Notwithstanding the foregoing, any revised terms shall not apply retroactively to Sales made prior to the effective date of the revised terms.
- 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. Except as set forth in the Section titled “PAYMENT” and the Section titled “AMENDMENTS TO THIS AGREEMENT”, this Agreement may be modified only by a writing duly executed by both Parties.
- 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 Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
- 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.