Updated November 6, 2017
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 ONE YEAR FROM THE DATE THE CONSIGNOR EXECUTES THIS AGREEMENT (THE "EFFECTIVE DATE" AND THE "TERM").
Used Horse Stuff is engaged in the marketing and sale of horseback riding apparel, small leather goods, riding equipment such as saddle pads, protective saddle pads, bridles, martingales, breastplates, horse boots and luxury horse themed goods;
Consignor owns or controls and has the right to sell certain items, described and itemized on Used Horse Stuff's online and other forms, or collected from Consignor (the "Consignor") by an employee of Used Horse Stuff as part of its consignor service (collectively, the "Property"). Consignor wishes to sell that Property.
Consignor desires that the Property be sold on consignment by Used Horse Stuff, and Used Horse Stuff wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to Used Horse Stuff, 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 Used Horse Stuff's Terms of Service (see Used Horse Stuff's website at www.usedhorsestuff.com/termsofservice), which terms may be amended from time to time at Used Horse Stuff’s sole discretion), the parties agree as follows:
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Consignor makes the Property available to Used Horse Stuff on a consignment basis and Used Horse Stuff accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to Used Horse Stuff only when Used Horse Stuff takes physical possession of the Property. Consignor retains all risk of loss or damage to the Property until that time; provided, however, that if Consignor uses Used Horse Stuff's approved method of shipment to Used Horse Stuff, specifically using Used Horse Stuff's label and current integrated shipping arrangement (the "Label"), then Used Horse Stuff 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.
Subject to the foregoing, Used Horse Stuff 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 Used Horse Stuff’s possession, and shall provide evidence of such insurance coverage to Consignor as and when requested. If the Property is damaged or lost while in Used Horse Stuff's possession, then a Property Sale, as defined below at Section 7, will be deemed to have occurred and Used Horse Stuff will reimburse Consignor in the amount of Consignor's Commission (also defined below), based on the damaged or lost Property's Net Selling Price(s), as defined at Section 8, and as determined solely by Used Horse Stuff. This remedy shall constitute the sole remedy and entire recourse of Consignor against Used Horse Stuff and is in lieu of any other remedy available as a matter of law or equity.
3. ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS
Used Horse Stuff only accepts Property: (1) it determines in its sole discretion to be in very good to excellent condition; (2) that is listed in its What We Accept Directory (see Used Horse Stuff's website at www.usedhorsestuff.com/whatweaccept for items currently being accepted); (3) it determines in its sole discretion to be authentic; and (4) that is made available to Used Horse Stuff in full compliance with the representations and warranties Consignor makes pursuant to this Agreement ("Acceptance").
Upon receipt, Used Horse Stuff will evaluate the Property to determine its authenticity, quality and value. Each shipment is subject to a processing fee of up to $19.99. Condition issues will affect the valuation. Cleanliness issues may incur an additional cleaning or polishing fee between $14.99 and $19.99 depending on the number of items and costs incurred. These costs will be deducted from Consignor's sales balance. Property that does not meet Used Horse Stuff'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 Used Horse Stuff determines 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 Used Horse Stuff determines at any time that an item of Property is counterfeit, Used Horse Stuff shall notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item Used Horse Stuff determines to be counterfeit will not be returned to Consignor and will be destroyed or donated if deemed to be of quality and use.
Consignor acknowledges and agrees that Used Horse Stuff is subject to laws and regulations relating to claims that consigned items have been stolen. Used Horse Stuff 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 365 days 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 Used Horse Stuff return all or some of the Property, upon written notice to Used Horse Stuff and so long as the item of Property has not already been sold (the "Return Request"). Upon such Return Request, Used Horse Stuff 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. Used Horse Stuff 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, Used Horse Stuff 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 within this first 30 days after Acceptance, Used Horse Stuff reserves the right to charge Consignor a fee of $25 per first piece, or $15 per every other item of Property, which fee reflects the up-front costs to Used Horse Stuff 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. Used Horse Stuff 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, Used Horse Stuff shall have no obligation to return such Property unless and until Consignor has provided for the cost of return shipping at its sole expense.
6. EFFORTS TO SELL; PRICE
Subject to Consignor's performance of its obligations under this Agreement, Used Horse Stuff will display on its site and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that:
(a) Used Horse Stuff 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) In order to market and promote the sale of the item, Used Horse Stuff will allow an immediate site-wide 20% discount to apply, which will affect the Initial Sale Price.
(c) Used Horse Stuff may offer additional 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 Used Horse Stuff and Consignor have otherwise 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 Used Horse Stuff and not returned to Used Horse Stuff within the period specified in Used Horse Stuff's then-current Return Policy (see www.usedhorsestuff.com/returns);
(b) Lost or stolen from Used Horse Stuff's stock on hand;
(c) Damaged or destroyed while in Used Horse Stuff'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:
Net Selling Price
$100 and above
$19.99 and under
Used Horse Stuff 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.
Used Horse Stuff 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, direct deposit or where Consigner elects another payment method acceptable to Used Horse Stuff.
The timing of processing and delivering Commission payments will vary by the payment method selected by Consignor but payment processing will typically take at least two business days to complete and issue to Consignor.
In the event of any dispute between the Parties, Used Horse Stuff 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. Used Horse Stuff 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 Used Horse Stuff.
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.
10. NO ASSIGNMENT
Consignor may not assign this Agreement or any interest herein without Used Horse Stuff's prior written consent and any prohibited assignment shall be void.
11. NO PROPERTY WARRANTIES
Used Horse Stuff 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.
USED HORSE STUFF DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL USED HORSE STUFF'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 USED HORSE STUFF'S BUSINESS, AND USED HORSE STUFF WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
12. 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 Used Horse Stuff 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 Used Horse Stuff'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.
13. GOVERNING LAW
This Agreement is governed by the laws of the State of Washington, without regards to its conflict-of- law provisions. The Parties hereby irrevocably consent to the jurisdiction of the courts of Seattle, Washington with respect to any matter arising under this Agreement.
14. 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 upon written notice.
15. 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.
17. 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.