Consignment - Agreement
Current as of November 1, 2020
This agreement and all the exhibits to this agreement (the “Agreement”) governs our relationship concerning all footwear and other product (collectively, the “product(s)”, “Product(s)”) which you deliver to Halftime Kickz Inc. (“we” or “us”) for sale, and which we accept for sale, on consignment. We reserve the right in our sole and absolute discretion to accept or reject any or all product which you may deliver to us without incurring any liability to you. If we accept your product for consignment sale, we will issue to you a confirmation stating the quantity and description of such product and the price you set with respect to such product (each a “Confirmation”). You have twenty-four (24) hours after we send you the Confirmation to notify us in writing of any discrepancies in the product as listed and/or any objections. If we do not receive any objections from you in writing, you will be deemed to have accepted the Confirmation which shall then be an exhibit to and form part of this Agreement. You shall fully and accurately fill out and execute such additional forms as we may request from time to time including, without limitation, tax forms (the “Forms”). Each submitted Form shall be considered an exhibit to this Agreement. If we reject any product, they shall be put aside and available for pick-up by you for a period of seven (7) days, after which we may dispose of them without our incurring any liability to you. In the alternative, if you provide us a credit card or other form of prepayment for shipping and handling costs, we will return the product to you via FedEx or comparable carrier.
2. Owner Representations.
With respect to all product that you deliver to us, you represent and warrant that: (i) you are the valid and lawful owner of the product with the full legal right to offer and sell them, and to enter into this Agreement; (ii) if you are an individual, you are 18 years of age or older and a resident of the United States or, if you are under 18 years of age, your parent or guardian confirms these representations and this Agreement; (iii) none of the product are subject to any lien, encumbrance, security interest or other adverse claim; and (iv) all of the product are genuine and authentic, and conform to the description stated in the applicable Confirmation. If we believe in good faith that any of the product are counterfeit or otherwise unlawful, we shall notify you and destroy them without our incurring any liability to you, even if you challenge our determination or our determination is later found to have bene wrong so long as it was made in good faith.
3. Sales Efforts.
We may offer the product for sale at such price and in such manner as we deem appropriate in our sole discretion, including in our retail store and/or on one or more of our websites or third party websites so long as we pay you as set forth in Section 4 below. You may lower or raise the price for any product which have not yet been sold at any time on written notice to us, but if you seek to raise the price, the new price shall be subject to our approval in our sole discretion. We make no guaranty as to whether, when or at what price any of the product may or will be sold, and we shall have no liability in the event any of the product fails to sell, except that we shall not sell the product and pay you less than the price you set and to which we agreed.
4. Proceeds of Sales.
If, as and when product(s) is (are) sold and proceeds is (are) actually received by us, we will pay you the price you set and confirmed in the applicable Confirmation. We will notify you promptly upon the later of (a) our receipt of proceeds from the sale of product, or (b) the conclusion of the period within which the customer may make any claims regarding the product, and we will thereafter pay you your share of the proceeds at our store premises during normal business hours on a set date, upon your presentation of the applicable Confirmation and your driver’s license or other satisfactory government issued photo identification. We may require you to sign a document confirming your receipt of the amount that we are then paying to you. In the alternative, at your request and if we agree, we will provide you store credit at no extra charge. We may require you to sign a receipt confirming the delivery of your payment vis PayPal or in-store credit. We have the express right to withhold payment to you if any required Forms are not fully and accurately filled out, executed, and submitted to us.
5. Withdrawal of product.
Either you or we may, at any time, elect to withdraw any or all of the product which have not yet been sold, and will notify the other in writing of the decision to do so. In such event, we will arrange for return shipping, which must be prepaid by you. We may require you to sign a receipt confirming the delivery of the returned product to you in satisfactory condition.
6. Title to product.
At all times prior to our sale of product, title to and ownership of the product will remain with you, except that we have full authority to effect the sale of such product in accordance with the terms of this Agreement.
7. Storage of product.
We shall store the product in such a manner as to reasonably protect them from damage or deterioration and shall clearly identify them as your property.
8. Risk of Loss.
We will use reasonable care in the handling, display and storage of your product. However, in the event any of the product are lost, stolen, damaged, or destroyed by fire, flood, customer handling or other causes beyond our reasonable control, the risk of loss remains with you, and we assume no responsibility or obligation to make any payment or reimbursement in respect of any such loss or damage, or for any special or consequential damages, except to the extent of any insurance proceeds that we actually collect in respect of such product. We make no representation or assurance that we will have insurance coverage for your product, or that, if we do, our insurance will provide coverage for the product, or for the amount which any insurer may pay in respect of any casualty relating to the product.
9. Customer Returns or Adjustments.
From time to time, purchasers may make claims or seek adjustments arising from defects or other claimed deficiencies of the product. We reserve the right, in our reasonable discretion, to make allowances and/or accept returns of product.
From time to time during the term of this Agreement, each of us (as the “Disclosing Party”) may disclose or make available to the other (as the “Receiving Party”) information about its business affairs, product and services, forecasts, confidential information and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. We consider your identity and any information from which you can be identified including, but limited to your, name, physical address, email address, nickname, social media handles and social security number your Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than resulting from, directly or indirectly, any breach of this Section by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third- party source, provided that the third party is not and was not prohibited from disclosing the Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (v) must be disclosed under applicable law. The Receiving Party shall, for three (3) years from receipt of the Confidential Information: (1) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any the Confidential Information to any Person, except to the Receiving Party’s representatives who must know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
You shall indemnify, hold harmless, and defend us and our parents, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by an Indemnified Party arising out of relating to, or resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise (collectively, “Claim”) of a third party: (i) relating to a breach of any representation, warranty or covenant made by you un this Agreement; (ii) alleging or relating to any act or omission by you in connection with the performance of your obligations under this Agreement; (iii) alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by your acts or omissions or (iv) relating to any failure by you to comply with any applicable laws.
12. Limitation of Liability.
IN NO EVENT ARE WE LIABLE TO YOU FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (I) WHETHER THE DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL SUM OF ONE HUNDRED ($100) DOLLARS FOR EACH PRODUCT.
This Agreement constitutes the sole and entire agreement between you and us regarding the subject matter hereof, and neither you nor we have made any representation or warranty except as expressly stated above. No amendment of this Agreement, or any waiver hereunder, will be valid unless evidenced by a further written agreement signed by you and us. This Agreement is binding on and enforceable by you and us and your and our successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of New York. Any lawsuit or claim arising under this Agreement shall be brought exclusively in the state or federal courts located in New York, New York, and you and we consent to the exclusive jurisdiction of and venue in such courts. The terms and conditions set forth in this document shall govern in the event of any conflict between this document and any exhibits, unless a subsequent document purports to expressly amend this document and is executed by both parties.