IF NOT SOONER TERMINATED AS PROVIDED HEREIN, THIS AGREEMENT WILL TERMINATE AUTOMATICALLY ON THE FINAL DAY OF THE MONTH THAT IS ONE YEAR FROM THE DATE OF THE FIRST PROPERTY SALE TO OCCUR UNDER THIS AGREEMENT (THE “TERMINATION DATE”).
WHEREAS, Brilliance Jewels is engaged in the sale and marketing of luxury designer items, jewelry, watches and/or fine art;
WHEREAS, Consignor owns certain items, described and itemized on Brilliance Jewels’ online and other forms, or collected by an employee of Brilliance Jewels as part of its direct consignor service (collectively, the “Property”), and wishes to sell that Property; and
WHEREAS, Consignor desires that the Property be sold on consignment by Brilliance Jewels, and Brilliance Jewels wishes to sell that Property on behalf of Consignor;
NOW, 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 Brilliance Jewels’ then-current Returns Policy and Terms of Service (see Brilliance Jewels’ website atwww.Brilliance Jewels.com), which terms may affect and amend the terms hereof, the Parties hereby agree as follows:
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Consignor makes the Property available to Brilliance Jewels on a consignment basis. Brilliance Jewels accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to Brilliance Jewels when the Property is in Brilliance Jewels’ physical possession. Consignor retains all risk of loss or damage to the Property while the Property is in transit; provided, however, that if Consignor uses Brilliance Jewels’ approved method of shipment to Brilliance Jewels (using Brilliance Jewels’ label and its integrated Federal Express shipping arrangement), then Brilliance Jewels will insure or arrange for a third party to insure the Property against loss or damage in transit, up to a maximum of $10,000 per shipment. As used herein, a “shipment” means items of Property shipped together under one bill of lading.
Subject to the foregoing, Brilliance Jewels 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, and shall provide evidence of such insurance coverage to Brilliance Jewels as and when requested. If the Property is damaged or lost while in Brilliance Jewels’ physical possession, a Property Sale will be deemed to have occurred and Brilliance Jewels will reimburse Consignor in the amount of the Consignor’s Commission (defined below), based on the damaged or lost Property’s net selling price(s), as determined solely by Brilliance Jewels. This remedy shall constitute the sole remedy and entire recourse of Consignor against Brilliance Jewels and is in lieu of any other remedy available as a matter of law or equity.
3. ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS
Brilliance Jewels only accepts clean items in very good to excellent condition. Upon receipt, Brilliance Jewels will evaluate the Property to determine its authenticity and quality. Condition issues may affect the value of the item. Items of Property that do not meet Brilliance Jewels’ authenticity or quality standards, or are not included in the Designer Directory (see Brilliance Jewels’ website at www.Brilliance Jewels.com for currently accepted Property), will not be accepted and will be returned to Consignor at Consignor’s expense (see “Return of Property” below).
4. COUNTERFEIT ITEMS
Consignor will not provide counterfeit items for consignment. In the event Brilliance Jewels believes that any item of the Property offered or provided to it is counterfeit, Brilliance Jewels shall either refuse to take possession of such item, or to the extent Brilliance Jewels has taken possession of such item, Brilliance Jewels shall notify Consignor that it believes the item is counterfeit and, subject to applicable statute and federal laws regarding the shipment of counterfeit goods, provide Consignor a reasonable opportunity to retrieve such item from Brilliance Jewels. If Consignor does not retrieve such item from Brilliance Jewels within 120 days from the date of such notice, then Brilliance Jewels shall be entitled to treat such item as abandoned.
Consignor acknowledges and agrees that it is Brilliance Jewels’ policy that a consignor’s personal and business information may be requested by rights owners looking to trace the origin of counterfeit items. In the event of any such request Brilliance Jewels may provide such information in its sole discretion.
5. CONSIGNMENT PERIOD
The “Consignment Period” for an item of Property shall begin on the date the Property is received by Brilliance Jewels and shall end 365 days after acknowledgment of receipt. The Consignment Period may be extended upon mutual consent of both parties. After the Consignment Period, Consignor may request return of the Property. Return shipping expenses shall be paid by Consignor and Brilliance Jewels shall have no obligation to return such items unless and until Consignor has provided for shipping at its sole expense.
6. EFFORTS TO SELL; PRICE
Upon acceptance of the Property, Brilliance Jewels will display and make commercially reasonable efforts to sell the Property. Consignor acknowledges that Brilliance Jewels will designate the product category applicable to the Property. The initial selling price for the Property will be set by Brilliance Jewels, and Brilliance Jewels may change the price at its sole discretion from time to time without notice to Consignor. Brilliance Jewels reserves the right to run promotions on its website and by other means and to offer discounts to its customers at its sole discretion. Consignor acknowledges and agrees that items of its Property consigned hereunder may be advertised, displayed and sold with items belonging to other consignors.
7. TITLE TO PROPERTY
Title to and ownership in the Property will remain with Consignor until a Property Sale, as defined below. A “Property Sale” shall be deemed to have occurred if an item of Property is:
sold by Brilliance Jewels and not returned to Brilliance Jewels within the period specified in Brilliance Jewels’ then-current Return Policy (see Brilliance Jewels’ website at www.Brilliance Jewels.com/returns);
lost or stolen from Brilliance Jewels’ stock on hand;
damaged or destroyed while in Brilliance Jewels’ possession; or
otherwise not physically present in Brilliance Jewels’ stock on hand.
8. PAYMENT AND COMMISSIONS
On the sale of any item of Property, Consignor will receive the following Commission (as defined below):
An amount equal to 75-85% of the net selling price, excluding tax and shipping, of items sold
The 75-85% Commission rate will reset to 75-85% at the Termination Date. Brilliance Jewels may at its sole discretion temporarily increase the Commission from time to time for promotional reasons.
The difference between the net selling price and the amount paid to Brilliance Jewels (the “Commission”) shall be Consignor’s sole compensation under this Agreement. The net selling price reflects all applicable sales commissions, stylist referral fees, promotions and other discounts applied directly to or associated with the sold item. Brilliance Jewels issues payment for Commissions on the 15th day of every month for a sale period beginning on the 1st of the previous month to the last day of the previous month. For example, payments issued on April 15th would cover the sale period from March 1 through March 31.
In the event of any dispute between the Parties, Brilliance Jewels 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. Brilliance Jewels shall be entitled to withhold any Commissions (including any otherwise due) in full or partial satisfaction of any amounts due to Brilliance Jewels.
9. RETURN OF PROPERTY
At any time during the Consignment Period, Consignor may require the immediate removal of all or some of the Property from Brilliance Jewels’ service, with reasonable written notice to Brilliance Jewels. All costs of removing and returning the Property will be borne by Consignor and Brilliance Jewels shall have no obligation to return such items unless and until Consignor has provided for shipping at its sole expense. Additionally, if Consignor requests the return of Property prior to the end of the Consignment Period, there will be a fee of $100 per fine art piece, or $15 per item for any other Property to cover Brilliance Jewels’ costs of storing, cataloging and photographing the Property, and Consignor will be responsible for shipping costs to and from Brilliance Jewels.
In addition to the one-year expiration first referred to above, 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 “Return of Property” will apply.
11. NO ASSIGNMENT
Neither Party may assign this Agreement or any interest herein without the other Party’s express prior written consent, except that Brilliance Jewels may assign this Agreement without Consignor’s consent in connection with any corporate transaction such as a merger or acquisition.
12. CHANGES TO THESE TERMS
Consignor acknowledges and agrees that these terms may be changed by notice posted on Brilliance Jewels’ web page at www.Brilliance Jewels.com. Brilliance Jewels will use reasonable efforts to communicate any such changes to Consignor (such as sending notice to an email address provided by Consignor), but Brilliance Jewels cannot guarantee that Consignor will receive such notices, or receive them in a timely manner.
13. NO PROPERTY WARRANTIES
Brilliance Jewels shall not offer any warranties on any item of Property, except to the extent a warranty is required by law and cannot be disclaimed.
14. REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
Consignor hereby warrants that it has good and marketable title to each item of 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 Brilliance Jewels harmless from all damages, suits, litigation, awards, and costs, including but not limited to attorneys’ fees and costs, that may arise out of Brilliance Jewels’ 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.
BRILLIANCE JEWELS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL BRILLIANCE JEWELS’ LIABILITY HEREUNDER EXCEED THE NET AMOUNTS 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 BRILLIANCE JEWELS’ BARGAIN, AND BRILLIANCE JEWELS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
15. GOVERNING LAW
This Agreement shall be governed as to validity, interpretation, construction, effect, and in all other respects by the laws and decisions of the State of California, without regards to its conflict-of-law provisions. The Parties hereby irrevocably consent to the jurisdiction of the courts of San Francisco, CA with respect to any matter arising under this Agreement.
16. 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 only by a writing duly executed by both Parties.
17. NO IMPLIED WAIVER
Either Party’s failure to insist, in any one or more instances, on strict performance by the other Party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
If one or more of the provisions of this Agreement shall be declared or held to be invalid, illegal, or unenforceable in any respect in any jurisdiction, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby and any such declaration or holding shall not invalidate or render unenforceable such provision in any other jurisdiction.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.