THIS AGREEMENT (the “Agreement”) is entered into and executed on the date shown below by and between:
_________________________________________________ of _________________________________________________
Name of the Consignor (the “Consignor”) Address of Consignor
And 1866086 Ontario Inc. O/A “Divine Consignment and Stellar Finds”, a Corporation incorporated under the laws of Ontario (the “Consignee”).
WHEREAS, the Consignor, from time to time, at its own option, desires to consign certain goods (the “Goods”) for the purpose of facilitating sale of the Goods by the Consignee; and
WHEREAS, the Consignee only accepts delivery of goods that it considers suitable for consignment at its sole discretion, hereinafter called (the “Property”); and
WHEREAS, the Property and certain terms of consignment is set forth on the Supplemental List of Consigned Property (“SLCP”) which is an integral part of and is incorporated into this Agreement,
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the parties hereto both acknowledge, the Consignor and the Consignee (collectively referred to as the Parties) hereby agree as follows:
1. Consignment of Goods - The Consignee accepts on consignment the Property delivered to its premises by the Consignor and agrees to make necessary payment to the Consignor upon the sale of the Property on the terms and subject to the conditions set forth in this Agreement. The Consignee hereby acknowledges that the Property shall remain the sole property of the Consignor until it is sold and that the Consignee takes possession of the Property only on a consignment basis and it does not acquire any property right or security interest in the Property.
2. Title – The Consignor represents and warrants that the Consignor has title to the Property and has the capacity to consign the Property for sale.
3. The Premises – The Consignee at its own cost and expense agrees to keep and display the Property at its premises (the “Premises”) and at its own sole discretion display the Property on the Consignor’s website (the “Site”) until the Listing Period expires or the Property is sold whichever is the sooner.
4. Consent of Spouse - The Consignor, if married, represents and warrants to the Consignee that the Consignor’s spouse has consented to consign the Property for sale, pursuant to any applicable law, necessary to ensure that the title to the Property shall transfer to the purchaser of the Property free of any entitlement by such spouse, and that the Consignor is entitled to receive the net proceeds of the sale of the Property.
5. Listing Period - The Consignor shall not withdraw or request to withdraw the Property for ____ days from the date the Property is listed for consignment.
6. Right of Removal – The Consignee reserves the sole right to remove the Property from the Site (if applicable) or refuse to display the Property for sale at its Premises if
a. There is concern regarding the authenticity of the property
b. The Consignor has made a false or inaccurate warranty or representation;
c. The Consignor is in breach of this Agreement.
If the Consignor withdraws the Property in breach of this Agreement, or if the Consignee withdraws the Property under sub-paragraph (b) or (c) above, then the Consignor agrees that a fair pre-assessment of damages are owing and payable to the Consignee. The value of damages payable to the Consignee by the Consignor shall be an amount equal to 20% of the original listing price of the Property. There are no pre-assessed damages payable to the Consignee under sub-paragraph (a) above. However, if the Consignor does not pick up the Property withdrawn within seven (7) business days of the date of the withdrawal request by the Consignee, the Property become(s) the property of Consignee in lieu of the storage and disposal charges.
8. Offered For Sale - The Consignee undertakes to offer and display the Property for sale as soon as possible after its receipt at the Premises. However, the exact timing of such offer and display is at the sole discretion of the Consignee which could be subject to a lengthy delay.
9. Sale of the Property - The Consignee agrees to use its best effort to sell the Property on behalf of the Consignor on such terms, and at such prices agreed upon by the Parties and written on the relevant Supplemental List of Consigned Property (“SLCP”). The SLCP is prepared by the Consignee and communicated to the Consignor for approval. In the event that the Consignor within 72 hours of the receipt of the SLCP, for any reason whatsoever, does not communicate his or her approval or disapproval of the SLCP, then the terms and prices listed on the SLCP is deemed to have been approved by the Consignor.
10. Periodic Reduction – To promote the sale of the Property, the original listing prices of the Property is periodically reduced by prescribed percentages shown on SLCP.
11. Extension of Listing Period - Unless otherwise extended by agreement of the Parties, the standard Listing Period of the Property is ____ days. In the event that the Property is not sold at the end of the Listing Period, the Property must be removed or donated by Consignor within 7 business days of the following dates whichever is the latest:
a. the expiry of the Listing Period, and
b. the date of written withdrawal request issued by the Consignee
12. In rare occasions, the Consignee may agree to extent the Listing Period for an additional ____ business days in an attempt to sell the Property at a price the Consignee believes the Property could sale.
13. Property Not Sold - In the event that the Property is not sold within the Listing Period and its extension if applicable, then the Consignor must decide to take one of the following options:
a. Donate the Property to charity
b. Take back the Property
If the property is not removed or donated by Consignor within the seven (7) days from the expiry date of the Listing Period and its extension if applicable, then the ownership of the Property shall pass to the Consignee so that the Property can be disposed however the Consignee decides at its sole discretion.
14. Consignee’s Commission - The Consignor agrees to pay the Consignee ____ % of the selling price of the Property as commission (the “Commission”)
15. Expenses and charges - The Consignor agrees to and shall be responsible for payment of following expenses irrespective of the sale of the Property:
a. INSURANCE: DCSF is not liable for damage or loss of the Property regardless of the cause of such loss including but not limited to breakage, theft, fire, flood, earthquake or any other natural disaster. However, the Consignor can optionally purchase “In-House” insurance at a rate of $ ____ per $100 of the original listing price of the Property with a minimum charge of $____. Unless the Consignor explicitly requests to purchase the “In-House” insurance, it is considered that the Consignor does not wish to have the Property insured which in the event of damage, theft, or otherwise loss of the Property, however it occurs, DCSF is totally protected from any liability.
b. TRUCKING: delivery charges of the Property to and from the Premises, if applicable at mutually agreed by the Parties.
16. Payment to Consignor - The proceeds of the sale of the Property are due and payable by the Consignee within 30 days of the end of the month following the date of the sale of the Property. A check in the amount of the sale price of the Property less Consignee’s Commission, expenses, and fees, if any, shall be available for pick up at the Premises or on request shall be mailed to the Consignor address on record. Unless otherwise expressly requested by the Consignor, issuance of checks is postponed until they are each more than $30.00 in amount.
17. Status of Consignment Account - It is the responsibility of the Consignor to check the status of the Property and the Consignor account. In the event that the Consignor fails to make contact with the Consignee for more than a year, any funds due to the Consignee become the property of the Consignee.
18. Damages to Property - In no event shall the Consignee be held liable for damages to the Property caused by shippers, transporters, or any independent contractor employed by or with the Consignor’s consent, or for damages arising from changes in environmental conditions, or for inherent conditions or latent defects of the Property
19. Sale-Ready Condition - The Consignor agrees and warrants that all items are delivered to the Premises in a “Sale-Ready” condition which means the Property is clean, in good state of repair, and free of damage. However, in the event that the Property is not in a Sale-Ready condition, the Consignor can be charged for the cost of repairs, cleaning or missing parts to bring the Property to Sale-Ready condition.
20. Independent Contractor – The Consignee is and shall remain an independent contractor selling the Property to third party buyers. The Consignor does not appoint the Consignee as its agent or authorize the Consignee to hold itself out as its agent.
21. Assignment – The Consignor shall not assign any of their rights under this Agreement, or delegate the performance of any of the obligations or duties hereunder, without the prior written consent of the Consignee and any attempt by the Consignor to so assign, transfer or subcontract any rights, duties, or obligations arising hereunder shall be void and of no effect.
22. Indemnify -The Consignor agrees to indemnify and hold harmless the Consignee, and its employees, agents, owners, principals, insurers for any claim including any legal fees, actions, damages or liabilities that may be incurred as a result of legal action taken by a purchaser or any other entity due to the breach by the Consignor of its warranties or representations with respect to the Property or any terms of this Agreement.
23. Supplemental List - The Parties agree that any Supplemental List of Consigned Property (SLCP) referenced to this Agreement is incorporated into and forms an integral part of this Agreement.
24. Jurisdiction and Applicable Law: The Parties agree that all actions or proceedings arising directly or indirectly out of this Agreement shall be litigated in the Ontario, Canada.
This Agreement is executed by the Parties on _____ day of ____________________ 201___ in ________________, Ontario
|Divine Consignment & Stellar Finds
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