Terms and conditions
THIS CONSIGNMENT AGREEMENT (this “Agreement”) is made between the consignor of the “Consigned Property” (defined at Section 1.2 below) (“Consignor”) and Wildflower Kids, a Minnesota Limited Liability Company having an address at 4737 County Road 101, #124, Minnetonka, MN 55345 (“WFK”).
Consignor owns certain items of personal property that Consignor desires to make available for online sale or display by WFK on consignment on WFK’s online retail store located at http://www.wildflowerkids.com (“Website”). WFK desires to accept such personal property for sale and/or display on the Website and to hold such consigned personal property on a consignment basis in accordance with the terms of this Agreement. NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. APPOINTMENT; CONSIGNMENT; RETURN GUARANTEE PROGRAM
1.1. Subject to Section 1.6 below, with regard to each item of Consigned Property, Consignor hereby appoints WFK as Consignor’s exclusive agent for a period beginning on the date that that item of Consigned Property is received by WFK (“Effective Date”) and ending six months thereafter (“Term”) to exhibit and sell that item of Consigned Property on WFK’s online retail store located at the Website and/or to donate or otherwise dispose of that item of Consigned Property pursuant to the terms of this Agreement, as applicable.
1.2. Consignor consigns to WFK, and WFK hereby accepts from Consignor on consignment, each item of personal property delivered to WFK by Consignor and received by WFK (“Consigned Property”). Consignor may not withdraw, sell, arrange for the sale of, or otherwise dispose of any of the Consigned Property once such Consigned Property has been delivered to WFK. Within ten (10) business days of WFK’s receipt of the Consigned Property, WFK, in its sole discretion, shall select those items of the Consigned Property that WFK desires to sell on the Website (such selected Consigned Property, the “Selected Property”) (such non-selected Consigned Property, the “Non-Selected Property”). For the purposes of this Agreement, the term “Consigned Property” shall be interpreted to include all Selected Property and Non-Selected Property.
1.3. WFK shall photograph, display, or otherwise reproduce images of the Selected Property on the Website and in online, email and print advertisements. The manner of such photographing, displaying, advertising or other reproducing is in the sole discretion of WFK.
1.4. If at the termination of this Agreement any of the Selected Property has not been sold by WFK (such unsold Selected Property, the “Remaining Property”), such Remaining Property shall be considered abandoned and shall become property of WFK. Remaining Property will be donated to a 501c charity or sold on the Website at the discretion of WFK.
1.5. Except as provided in Section 1.6 below, the Non-Selected Property shall be considered abandoned and shall be donated to a charity selected by WFK or otherwise disposed of in WFK’s sole discretion.
1.5.1. Consignor may purchase from WFK the right to have WFK return to Consignor all Non-Selected Property at the time the order for the Mail-In Bag is placed on the website (such right, the “Return Guarantee Program”). In the event the Consignor purchases into the Return Guarantee Program, unaccepted items will be returned to Consignor within (14) days of WFK’s making the selection of the Non-Selected Property.
1.6. Notwithstanding anything herein to the contrary, WFK shall have the right at any time to withdraw from sale the Selected Property if, in WFK’s commercially reasonable discretion: (i) Consignor has breached, or WFK reasonably anticipates that Consignor will breach, any provision of this Agreement; and/or (ii) WFK has reason to doubt the status of the title to any of the Consigned Property or the authority to pass clear title to the Consigned Property; and/or WFK has reason to doubt the accuracy of the information provided by Consignor in connection with the Account. In the event WFK withdraws from sale any of the Selected Property pursuant to this Section 1.7, WFK shall dispose of the Property in WFK’s sole discretion.
2. SALE AND PAYMENT TERMS
2.1. WFK shall offer for sale and sell the Selected Property at prices determined by WFK in WFK’s commercially reasonable discretion.
2.2. WFK and Consignor agree that WFK’s commission for sales of the Selected Property (“Commission”) shall be determined in accordance with Sections 2.2.1 – 2.2.3 set forth below.
2.2.1. If Consignor elects to receive the Consignor Revenues (defined at Section 2.3 below) in the form of a PayPal payment, WFK’s Commission shall be sixty percent (60%) of the Net Revenues(defined at Section 2.4 below) from WFK’s sales of the Selected Property. In connection therewith, WFK will pay to Consignor the remaining forty percent (40%) of Net Revenues in the form of a PayPal payment no later than thirty (30) days after the expiration of the Term.
2.3. For the purposes of this Agreement, the term “Consignor Revenues” shall mean, for each applicable period, that percentage of Net Revenues that is not allocated to WFK’s Commission. For clarification, WFK shall deduct the Commission from the Net Revenues from sales of the Selected Property prior to distributing the Consignor Revenues to the appropriate party.
2.4. For the purposes of this Agreement, the term “Net Revenues” shall mean, for each applicable period, the proceeds from the sale of the Selected Property, less returns, commissions (other than the Commission), taxes, and/or other expenses related to such sale, including, but not limited to listing and processing fees as outlined in section
2.4.1, final value fees, PayPal fees, and any optional fees for special website placement. For clarification, the purchaser of an item of Selected Property shall have the ability to return that item to WFK within fourteen (14) business days of the purchaser’s receipt of that item, upon which return, WFK shall refund to that purchaser the entire amount of the proceeds from the sale of that item. The returned proceeds from the sale of that returned item shall be excluded from the calculation of Net Revenues under this Section 2.4, and the returned item of Selected Property shall be exhibited and offered for sale pursuant to the terms of this Agreement for the remainder of the Term of this Agreement.
2.4.1. WFK will assess a processing fee of $7.99 for each Mail-in Bag, which will be deducted from the Consignor's account. At the end of the Term, if the Consignor's account is less than $0.00, the balance will be adjusted to $0.
3. DELIVERY AND RE-DELIVERY
Consignor may elect either: (i) to deliver the Consigned Property to WFK using a mailer bag delivered to Consignor by WFK (“WFK-Provided Delivery”); or (ii) to deliver the Consigned Property to WFK using packaging supplied by Consignor (“Consignor-Provided Delivery”). In the event Consignor elects WFK-Provided Delivery, packing and shipping charges incurred in the delivery of any of the Consigned Property from Consignor to WFK, if any, are the responsibility of and shall be borne by the consignor unless otherwise noted on the website WFK. In the event that Consignor elects Consignor-Provided Delivery, packing and shipping charges incurred in the delivery of any of the Consigned Property from Consignor to WFK, if any, are the responsibility of and shall be borne by Consignor. Notwithstanding the foregoing, any packing and shipping charges incurred in the delivery of any of the Consigned Property from WFK to a charity (including, but not limited to, the Consignor Charity), if any, are the responsibility of and shall be borne by WFK. Further notwithstanding the foregoing, any insurance costs, other handling expenses, and risk of loss or damage incurred in the delivery of any of the Consigned Property from Consignor to WFK, or from WFK to: (i) a purchaser of the Selected Property; (ii) Consignor; and/or (iii) a charity (including, but not limited to, the Consignor Charity), if any, are the responsibility of and shall be borne by Consignor.
4. REPRESENTATION AND WARRANTIES
To induce WFK to enter into this Agreement, Consignor represents and warrants to WFK as follows:
4.1. Consignor’s possession of the Consigned Property complies with all applicable property laws, and is not subject or susceptible to a claim of any nature by any individual, corporation, partnership, limited liability company, joint venture, trust, business association or other entity, including any nation, state, county, city, town, borough, village, district or other governmental entity (each, a “Person”).
4.2. Consignor possesses unencumbered title to the Consigned Property, free and clear of any charge, claim, community or other marital property interest, condition, equitable interest, lien, option, pledge, security interest, right of first option, right of first refusal or similar restriction, including any restriction on use, transfer, receipt of income or exercise of any other attribute of ownership.
4.3. Consignor is at least 18 years of age and has all requisite power and authority to execute this Agreement and to grant WFK the right to sell the Consigned Property on consignment and/or to donate or otherwise dispose of the Non-Selected Property as contemplated hereby.
4.4. Consignor has not granted any interest (legal or equitable), licenses or other rights, nor has any obligation to grant any interest (legal or equitable), licenses or other rights, with respect to the Consigned Property to any other Person.
4.5. The information provided by Consignor in connection with the Account is true, complete, and accurate, and shall continue to be true, complete, and accurate throughout the Term of this Agreement.
4.7. The representations and warranties of Consignor provided in this Agreement shall survive the completion of the transactions contemplated by this Agreement, as well as the termination of this Agreement.
Consignor agrees that Consignor shall defend, indemnify, and hold harmless WFK and its employees, agents, managers, members, representatives, and any other person or entity acting on behalf of WFK (“Indemnitees”) from and against any and all demands, claims, actions or causes of action, judgments, assessments, losses, liabilities, damages or penalties and reasonable attorneys' fees and related disbursements incurred by any of the Indemnitees that arise out of or result from: (i) a misrepresentation, breach of warranty, or breach or non-fulfillment of any representation, warranty, obligation, or covenant of Consignor contained herein, or in connection with the transactions contemplated hereby or thereby, regardless of by whom asserted; and (ii) any claims of third-parties arising out of or relating to the ownership or possession of the Consigned Property, including without limitation, product liability, manufacturing defects, design defects, and/or failure to warn. Consignor’s indemnification obligations shall survive the completion of the transactions contemplated by this Agreement, as well as the termination of this Agreement.
6. CARE OF PROPERTY
WFK shall provide the same level of care, security, and protection for the Consigned Property as is currently provided for WFK’s property. Notwithstanding the foregoing, WFK shall not be liable for Consigned Property that is misplaced or otherwise lost or destroyed while in WFK’s possession, provided such misplacement, loss, or destruction is not directly caused by WFK’s gross negligence or willful misconduct.
7. SECURITY INTEREST
Title to and a security interest in the Consigned Property are reserved to Consignor. Consigned Property shall not be subject to claims by WFK’s creditors. WFK hereby grants Consignor a purchase money security interest in and to the Consigned Property and the proceeds thereof, and hereby authorizes Consignor to file financing statements as Consignor may deem necessary to perfect such purchase money security interest. For clarification and notwithstanding anything herein to the contrary, any such security interests of Consignor held against WFK that attach to the Consigned Property shall be extinguished upon the sale, donation, or disposal of such Consigned Property as contemplated by this Agreement.
9. LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, TIME OR OPPORTUNITY, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE, EQUITY, OR OTHERWISE.
10.1. Notices. Any notice or demand under this Agreement shall be deemed to have been sufficiently given or served for all purposes: (i) upon mailing, by certified or registered mail, or by a national overnight delivery service, postage prepaid to the recipient; or (ii) upon personal delivery to the recipient, at the address set forth in the first paragraph of this Agreement or at such other address as designated by a party in a written notice to the other.
10.2. Governing Law. This Agreement shall in all respects, be governed by the internal laws of the State of Minnesota without reference to its principles of conflict of law. Any dispute or controversy or litigation shall be venued in Minnesota. Any dispute or claim will be submitted to binding arbitration.
10.3. Severability. If any provision of this Agreement is held invalid, that provision will be ineffective to the extent of such invalidity, without invalidating the remainder of that provision or the other provisions hereunder.
10.4. Relationship of Parties. Nothing contained herein shall be construed in any way to create a joint venture, partnership, agency or other similar relationship between WFK and Consignor apart from the consignment relationship established hereby), and it is the specific intent of the parties that no such relationship be established hereby.
10.5. Waiver. No waiver or delay in pursuing by either party of any default shall be effective unless in writing nor shall it operate as a waiver of any other default or of a similar default on a subsequent occasion.
10.6. Assignment. Neither party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other party.
10.7. Force Majeure. Neither party shall be in violation of this Agreement for failure to perform any of its obligations by reason of strikes, boycotts, labor disputes, embargoes, shortages of materials, acts of God, acts of the public enemy, acts of public authority, weather conditions, riots, rebellion, accidents, sabotage or any other circumstances for which it is not responsible and which are not within its control, provided that no such events or conditions shall relieve Consignor of its indemnity obligations under this Agreement accruing prior to or after the cessation of such events.
10.8. General. This Agreement constitutes the entire agreement between the parties. It may not be amended by custom or usage, but only in a writing signed by each party hereto which states that it is an amendment of this Agreement. This Agreement shall be binding upon each party’s permissible successors and assigns. This Agreement may be signed in any number of counterparts, each of which will be an original, and all of which together will constitute the same instrument.
By purchasing the Mail-In Bag on the Website, Consignor agrees with WFK to the terms, conditions, and provisions of this Agreement and acknowledges and affirms that Consignor accepts this Agreement.