This Consignment Agreement (“Agreement”) is made effective this ________________, 20__, by and between The Jewel in Giving, LLC (“Consignor”) and ________________________________(“Consignee”).
WHEREAS, Consignor operates an eCommerce jewelry store;
WHEREAS, Consignor wishes to provide a platform to charitable organizations to augment their fundraising and charity-building initiatives through the purchase of The Jewel in Giving, LLC’s consigned jewelry items (“Consigned Merchandise”); and
WHEREAS, Consignor is willing to deliver the Consigned Merchandise to Consignee on consignment for sale by Consignee on terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties agree as follows:
- Consignment Reservation Form. Consignee shall complete the Consignment Reservation Form (“Form”) and return it to Consignor at least two weeks prior to the date of the fundraising event which shall be specifically identified on the Form (“Event Date”).
- Delivery of Consigned Merchandise.
2.1 All Consigned Merchandise will be shipped via Fedex or UPS with a signature required for delivery along with a return shipping label for any unsold or defective Consigned Merchandise.
2.2. Consignor shall send notification to Consignee at the email address provided on the Consignment Reservation Form with the delivery information of the Consigned Merchandise and will provide a tracking number.
2.3 Consignee shall promptly inspect all Consigned Merchandise upon receipt by Consignee and shall (i) notify Consignor by email within 24 hours of receipt of shipment; and (ii) return to Consignor any defective Consigned Merchandise within seven (7) calendar days of its receipt by Consignee. Consignee’s failure to inspect the Consigned Merchandise or return any defective Consigned Merchandise within said period shall be deemed a waiver of any right of Consignee with respect to rejection for non-conformity of the Consigned Merchandise and defects in workmanship.
- 3. Consignment Prices.
3.1 The price to be paid to the Consignor for each item of the Consigned Merchandise consigned under this Agreement shall be the Consignment Price on the Consignment Reservation Form.
3.2. If any items are sold under the the Consignment Price, Consignee shall be liable to pay the difference to the Consignor between the sales price and the Consignment Price.
3.3. Within seven (7) days of the Event Date, Consignee shall make full payment to Consignor for all sold Consignment Merchandise.
- 4. Representations of Consignee. Consignee agrees that all Consignment Merchandise shall be sold solely as part of the charitable event and that all sales are final and shall not be eligible for refunds, returns, exchanges, or credits by Consignor.
- 5. Representations of Consignor. Consignor hereby represents to Consignee that Consignor either has good title to the Consigned Merchandise or has full power and authority to deliver the Consigned Merchandise to Consignee.
- 6. Return and Reconciliation. Within seven (7) days of the Event Date, Consignee shall return all unsold Consignment Merchandise to Consignor or Consignee shall purchase all or some of the Consigned Merchandise at its option in accordance with the terms of this Agreement. The Consigned Merchandise shall be returned in the original condition in which it was delivered to Consignee pursuant to this Agreement. Final reconciliation shall be done, upon receipt by Consignor of the actual quantity of Consigned Merchandise returned.
- 7. Title
7.1 Title to the Consigned Merchandise shall at all times remain in Consignor until fully paid for by Consignee. Upon receipt by Consignee of the Consigned Merchandise, Consignee shall bear the entire risk of loss, theft, damage or destruction from any cause whatsoever, Consignee agrees to hold the Consigned Merchandise and proceeds thereof in trust for Consignor and to indemnify and hold Consignor harmless from and against any and all liabilities, damages, losses, costs, expenses, suits, claims, demands or judgments of any nature (including, without limitation, attorney’s fees and expenses) arising from or connected with any loss, theft, damage or destruction of the Consigned Merchandise.
7.2 Consignee shall immediately inform Consignor in writing of any loss, theft, damage or destruction of any of the Consigned Merchandise. Should any of the Consigned Merchandise be lost because of an event of loss, theft, damage or destruction, Consignee shall pay the full Consignment Price to the Consignor.
- 8. Taxes. Consignee shall promptly pay any and all sales, use or other taxes, duties or assessments imposed by any governmental authority in a particular jurisdiction with respect to the possession, consignment or delivery of the Consigned Merchandise hereunder.
- 9. Security Interest. Consignor shall have and retain a security interest in all Consigned Merchandise delivered hereunder and the proceeds thereof and all additions, substitutions, products and accessions thereto and thereof, which security interest shall continue until the Consigned Merchandise is returned to Consignor pursuant to Paragraph 6, or the full purchase price for all of the Consigned Merchandise delivered hereunder and not returned to Consignor is paid to Consignor. The parties agree that this Agreement creates a true consignment and that all deliveries of Consigned Merchandise hereunder shall constitute true consignments of the Consigned Merchandise and not the purchase and sale of Merchandise by Consignee. Consignee agrees that Consignor may execute, file and/or record any notice, financing statement, continuation statement, instrument or document that Consignor may consider reasonably necessary or desirable to create, preserve, continue, effect or validate the security interest granted hereunder, including, without limitation, the giving of any document to Consignor’s creditors. Consignee expressly authorizes Consignor to file one or more financing statements, continuation statements or other documents under the Uniform Commercial Code ("UCC") of any state or the Federal Bankruptcy Code, with or without Consignee’s signature, naming Consignee as debtor and Consignor (or its assignee) as secured party. Consignee agrees not to grant a security interest in or file a financing statement with respect to or in any way covering the Consigned Merchandise which names a party other than Consignor as secured party without Consignor’s prior written consent
- Events of Default. The following shall be considered Events of Default which shall entitle Consignor to terminate the Agreement:
10.1 Consignee’s failure to adhere to the terms herein, including but not limited to, failure to make prompt payment of all amounts owed pursuant to this Agreement, and honor all warranties and covenants. This includes without limitation, the obligations of Consignee to make payments in strict accordance with the time limits set forth in Paragraphs 3 and 6.
10.2 A material adverse change in Consignee’s financial condition which Consignor, in its sole discretion, deems material using sound business judgment.
10.3 Liquidation, an assignment for the benefit of creditors, dissolution or the discontinuance of the operation of the business of Consignee for any reason.
10.4 Failure of Consignee to remove by payment or bond any lien or attachment against the Consigned Merchandise within thirty (30) days.
10.5 The occurrence of any substantial loss, theft or destruction or damage to Consignor’s Consigned Merchandise delivered hereunder.
- Default Remedies
11.1 Upon default by Consignee, Consignor may declare all liabilities, indebtedness and obligations of Consignee to Consignor arising under this Agreement immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding.
11.2 Upon default, Consignee shall within seven (7) days return to Consignor, at Consignee’s expense, all Consigned Merchandise delivered hereunder in a form acceptable to Consignor, or make payment for such Consigned Merchandise to Consignor. In the event of Consignee’s failure to make immediate return or payment, Consignor may proceed to enforce payment and exercise all rights and remedies it may have against Consignee as provided by the UCC as well as any other rights and remedies to which Consignor may be entitled in law or equity, all of which may be exercised singularly or concurrently. Consignee agrees to pay all fees and expenses, including reasonable attorney’s fees, incurred by Consignor in enforcing its rights, powers and remedies under this Agreement.
- Modification. No modification, amendment, supplement, or waiver to this Agreement shall be binding unless in writing and signed by both parties.
- Waiver. The waiver, express or implied, by any party of any right hereunder shall not constitute a waiver of any other right.
- Assignment and Transferability. Consignee may not assign its rights or delegate its obligations hereunder without the prior consent of Consignor, and any such assignment or delegation, in the absence of such consent, shall be void and without effect. Consignor may assign this Agreement to any third party providing that such third party agrees to be bound by the terms and condition of this Agreement to the same extent as Consignor.
- Enforcement. If any provision of this Agreement shall be finally determined by competent authority to be invalid or unenforceable in any jurisdiction such invalidity or unenforceability shall attach only to such provision and jurisdiction. Such provision shall be deemed severed to the extent of such invalidity or unenforceability and shall not affect or render invalid or unenforceable any other provision of this Agreement. Subject to such severance, this Agreement shall continue in force and effect in accordance with its other terms and conditions.
- Entire Agreement. This Agreement supersedes all prior communications and understandings between the parties hereto with respect to the subject matter hereof and constitutes their sole and entire agreement with respect to the subject matter hereof.
- Further Action. Consignee, agrees that, from time to time, it will execute and deliver any and all additional and supplemental agreements, documents, and instruments and do such other acts as required by Consignor in Consignor’s judgment, to be necessary or desirable to carry out the intents and purposes of this Agreement and the consummation of the transactions contemplated thereby.
- Headings. The headings herein are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
- Jurisdiction and Governing Law.
19.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
19.2 Consignee hereby submits to the jurisdiction of the courts of the State of Florida and the United States District Court for the Southern District of Florida, as well as to the jurisdiction of all courts from which an appeal may be taken from the aforesaid courts, for the purpose of any suit, action or other proceeding arising out of this Agreement, and expressly waives any and all objections it may have as to venue in any of such courts.
IN WITNESS WHEREOF, Consignor and Consignee have caused this Agreement to be executed by their duly authorized officers to be effective as of the day and year first above mentioned.