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").
MISLUX is engaged in the marketing and sale of luxury designer items, jewelry, watches, fine art and home goods;
Consignor owns or controls and has the right to sell certain items, described and itemized on MISLUX's online and other forms, or collected from Consignor (the "Consignor") by an employee of MISLUX 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 MISLUX, and MISLUX wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to MISLUX, 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 MISLUX's Terms of Service (see MISLUX's website at MISLUX.com), which terms may be amended from time to time at MISLUX’s sole discretion, the parties agree as follows:
- DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Consignor makes the Property available to MISLUX on a consignment basis and MISLUX accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to MISLUX only when MISLUX takes physical possession of the Property. Consignor retains all risk of loss or damage to the Property until that time; however, if Consignor uses MISLUX's approved method of shipment to MISLUX, specifically using MISLUX's label and current integrated shipping arrangement (the "Label"), then MISLUX will insure or arrange for a third party to insure each Property shipment against loss or damage in transit. A "shipment" means items of Property shipped together under one Label.
Subject to the foregoing, MISLUX 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 MISLUX’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 MISLUX's possession, then a Property Sale, as defined below at Section 7, will be deemed to have occurred and MISLUX will reimburse Consignor in the amount of Consignor's Commission (also defined below), based on the damaged or lost Property's actual or, where a sale has not occured, the estimated Net Selling Price(s), as defined at Section 8, which is determined solely by MISLUX. This remedy shall constitute the sole remedy and entire recourse of Consignor against MISLUX and is in lieu of any other remedy available as a matter of law or equity.
- ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS
MISLUX only accepts Property: (1) it determines in its sole discretion to be in very good to excellent condition; (2) that is listed in its Designer Directory (see MISLUX's website at https://mislux.com/pages/faq-selling for items currently being accepted); (3) it determines in its sole discretion to be authentic; and (4) that is made available to MISLUX in full compliance with the representations and warranties Consignor makes pursuant to this Agreement ("Acceptance").
Upon receipt, MISLUX will evaluate the Property to determine its authenticity, quality and value. Condition issues will affect the valuation. Property that does not meet MISLUX'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).
- 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 MISLUX 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 MISLUX determines at any time that an item of Property is counterfeit, MISLUX shall notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item MISLUX determines to be counterfeit will not be returned to Consignor and will be destroyed. See https://mislux.com/pages/authenticity.
Consignor acknowledges and agrees that MISLUX is subject to laws and regulations relating to claims that consigned items have been stolen. MISLUX takes reports of stolen goods seriously and will cooperate with law enforcement in all investigations.
- CONSIGNMENT PERIOD AND RETURN OF PROPERTY
The "Consignment Period" for an item of Property begins on Acceptance 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 MISLUX return all or some of the Property, upon written notice to MISLUX and so long as the item of Property has not already been sold (the "Return Request"). Upon such Return Request, MISLUX 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. MISLUX 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, MISLUX 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, MISLUX reserves the right to charge Consignor a fee of $100 per fine art piece, or $15 per every other item of Property, which fee reflects the up-front costs to MISLUX 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 and all costs of returning the Property to the Consignor will be borne by MISLUX. For items that remain unsold after 365 days from Acceptance, MISLUX will, at Consignor’s option and MISLUX’s cost: (i) return the items to the Consignor, or (ii) donate the items to a charity of MISLUX’s choice. If MISLUX is unable to contact the Consignor at the current email or physical address provided by Consignor, the items will be donated to a charity of MISLUX’s choice.
- EFFORTS TO SELL; PRICE
Subject to Consignor's performance of its obligations under this Agreement, MISLUX will display on its site and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that:
(a) MISLUX 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, MISLUX will allow an immediate site-wide 20% discount to apply, which will affect the Initial Sale Price.
(c) MISLUX 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 MISLUX and Consignor have otherwise agreed in writing to a specific price at which an item must be sold.
- 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 MISLUX and not returned to MISLUX within the period specified in MISLUX's then-current Return Policy (see https://mislux.com/pages/returns);
(b) Lost or stolen from MISLUX's stock on hand;
(c) Damaged or destroyed while in MISLUX's possession.
- 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").
(a) 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:
(1) A Commission equal to 55% of the Net Selling Price (i) for all items priced at $120 or less or, (ii) where the total of the items sold (the "Sales") is less than $1,500 during the Commission Period, as defined below;
(2) A Commission equal to 60% of the Net Selling Price where Sales during the Commission Period reach between $1,500 to $9,999 during the Commission Period, as defined below;
(3) A Commission equal to 70% of the Net Selling Price where Sales during the Commission Period total $10,000 or more.
(4) Regardless of the sales-based Commission rates set forth above, for any items priced at $120 or less, the 55% Commission rate will always apply to that item.
(b) The applicable Commission rate will reset on the one-year anniversary of the first Property Sale under this Agreement (the "Commission Period") and reset annually thereafter as follows:
(1) For Consignors with Sales of less than $1,500 during the last Commission Period, the Commission will reset to 55% for the next Commission Period;
(2) For Consignors with Sales of between $1,500 and $9,999 during the last Commission Period, the Commission will reset to 60% for the next Commission Period;
(3) For Consignors with Sales of $10,000 or more during the last Commission Period, the Commission will reset to 70% for the next Commission Period.
(4) Items priced at a price of $120 or less are always subject to the 55% Commission Rate.
MISLUX may at any time and in its sole discretion (i) temporarily increase the Commission rate from time to time for promotional reasons without notice or (ii) make other changes to its Commission structure and the Commissions upon at least fourteen (14) days' notice to you in accordance with Section 14. The Commission shall be Consignor's sole compensation under this Agreement.
MISLUX 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 Consignor elects another payment method acceptable to MISLUX.
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, MISLUX 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. MISLUX 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 MISLUX.
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.
- NO ASSIGNMENT
Consignor may not assign this Agreement or any interest herein without MISLUX's prior written consent and any prohibited assignment shall be void.
- NO PROPERTY WARRANTIES
MISLUX 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.
MISLUX DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL MISLUX'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 MISLUX'S BUSINESS, AND MISLUX WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
- 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 MISLUX 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 MISLUX'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.
- GOVERNING LAW
This Agreement, or the breach thereof, and all claims relating to or arising out of this Agreement, whether in contract, tort or otherwise, shall be governed by the laws of New York, without regard to its conflicts of laws principles. The Parties hereby irrevocably consent to the jurisdiction of a federal or state court located in the County of New York, Borough of Manhattan with respect to any matter arising under this Agreement.
- AMENDMENTS TO THIS AGREEMENT
MISLUX may update or change any of the terms and conditions of this Agreement at any time and in its sole discretion by notifying Consignor at the email address or physical address Consignor has provided in this Agreement. Consignor hereby agrees that all agreements, notices, disclosures, and other communications that MISLUX provides electronically satisfy any legal requirement that such communications be in writing. Consignor shall be bound by all revised terms. If Consignor does not agree to any revised terms of this Agreement, including any change to the Commissions, Consignor’s sole recourse is to terminate this Agreement in accordance with Section 9 before the effective date of the revised terms. Notwithstanding the foregoing, any revised terms shall not apply retroactively to Sales made prior to the effective date of the revised terms.
- 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. Except as set forth in Section 8 and Section 14, this Agreement may be modified only by a writing duly executed by both Parties.
- 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.
- 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.