effective date: 03 October 2014
2 Consignment Acceptance Process and Rejections: If you desire to consign Goods with us for sale through our store and/or internet sales channels, the following procedures must be followed, in order:
a You must provide us with a request (a “Consignment Request”), specifying the brand, model, size, quantity, and any other pertinent price-related information regarding such Goods, as well as the quantity of each that you would like to consign to us.
b We, in turn, will assess the Consignment Request, and, in our sole and absolute discretion, select which of such Goods we will accept for consignment by means of delivering a confirmation (each, a “Confirmation”) to you stating which of the Goods from your Consignment Request we will consider for acceptance, as well as the minimum sales price and our commission rate with respect to each of such Goods.
c You will then deliver to us in person or ship to us at your expense only those items set forth in a Confirmation. We reserve the right, in our sole and absolute discretion, to refuse any or all Goods which you may deliver to us on consignment. Any Goods not finally accepted for consignment, whether set forth in a Confirmation or not, shall be deemed “Rejected Goods”.
d Subject to the remaining provisions of this Agreement (specifically including, without limitation, paragraphs 4 and 6), we shall then use our commercially reasonable efforts to sell the Goods accepted for consignment in accordance with the Confirmation and this Agreement for such period as we may determine in our sole and absolute discretion.
e We will notify you at your last known address (physical or electronic) of any Rejected Goods. You will be responsible to pick-up such Rejected Goods or provide for their return shipping within 14 days following delivery of such notice pursuant to clause (b) of this Section 2 as though such Rejected Goods were being withdrawn. If you do not do so, such Rejected Goods may be deemed “Abandoned Goods” and addressed as set forth in paragraph 7 hereof.
3 Ownership Representations. You represent and warrant to us that you are the valid and lawful owner of all Goods which you deliver to us, that none of the Goods will be subject to any lien, encumbrance, security interest or other adverse claim, and that you have the full legal right to offer and sell the Goods. You further represent and warrant to us that all Goods which you deliver to us will be genuine and authentic, and will conform to the description stated in the applicable Confirmation.
4 Sales Efforts. Subject only to the minimum sales price stated in the applicable Confirmation, we may offer the Goods for sale in such manner as we may deem appropriate, including by means of display in our retail store and/or on one or more of our websites. We will offer the Goods for sale at such price as we deem appropriate in our discretion, provided that we will not sell the Goods at a unit price (a unit being, in the case of footwear, one pair) which is less than the minimum unit price for such Goods as stated in the applicable Confirmation. You may at any time, by means of telephonic or written notice to us, request a change in the minimum price for any or all Goods which have not yet been sold, provided that we reserve the right not to implement any such change and to deem such Goods as Rejected Goods at such new minimum sales price, or delay such implementation until (a) if requested by us at the time of any telephonic notice, you have confirmed the change to us in writing, and (b) if applicable, we have had a reasonable time to update our websites to reflect such change. Except for the minimum price assurance in the event of sale, we make no guaranty as to whether, when or at what price any of the Goods can or will be sold.
5 Proceeds of Sales. If and when Goods are sold, we will charge the customer for any applicable sales tax on the sale price of the Goods. If, as and when proceeds from the sale of Goods are actually received, such proceeds will be applied (1) first, to the payment of any applicable sale taxes, (2) next, to pay to us our commission (which, unless otherwise indicated in the applicable Confirmation, will be 25%. Any fees charged by our credit card processor, will be charged at 3% on the sale price at the commission rate specified in the applicable Confirmation, and (3) finally, the remainder will be paid to you. To the extent that customers pay for Goods by means of credit card, then a 3% fee will be charged by the credit card company. We will notify you promptly upon the later of (a) our receipt of proceeds from the sale of Goods, or (b) the conclusion of the period within which the customer may make any claims regarding the Goods. You will be required to invoice us as per our notification to you (this invoice has to be in accordance with the South African law) and we will thereafter pay to you your share of the proceeds via EFT during normal business hours, upon your presentation (either in person or via email scan) of the applicable Confirmation and your driver’s license or other satisfactory picture identification. Payment processing can take up to 4-6 business days.
6 Withdrawal of Goods.
a Either you or we may, at any time, elect to withdraw the offering of any or all of the Goods which have not yet been sold, provided, however, that you agree that you will not withdraw the Goods prior to 30 days after the date of delivery of the Goods to us. We will notify you of any such determination on our part, and you will notify us in person or in writing of any such determination on your part. If you seek such an early withdrawal, we will be entitled to an early withdrawal fee equal to R300 per pair (if such Goods are shoes, or per item if such Goods are of another type), and may retain the subject Goods, and continue to make them available for sale pursuant to the terms of the Confirmation and this Agreement, until the earlier of our full, final and indefeasible receipt of such early withdrawal fee, the sale of the Goods, or the expiration of such 30-day period.
b Upon any withdrawal (or any Goods deemed Rejected Goods in accordance with the provisions hereof), you will be responsible for picking up the subject Goods at our store premises during normal business hours, at which time you must present the applicable Confirmation together with your driver’s license or other satisfactory picture identification; if instead you wish to have such withdrawn Goods or Rejected Goods delivered to you, we will only have them delivered to the address we have for you on file, all at your expense. You must either provide us with the amount of return shipping in advance, or provide us with a valid account number with a nationally recognized shipping company which you authorize us to use in order to make such return delivery. We may require you to sign a receipt confirming the delivery of such Goods to you in satisfactory condition.
c Once withdrawn, items cannot be reconsigned.
7 Title to Goods. At all times prior to our sale of Goods, title to and ownership of such Goods will remain in your name, provided that we have full authority to effect the sale of such Goods in accordance with the terms and conditions stated herein. Notwithstanding the foregoing, any Abandoned Goods shall become our property, and we shall have no further liability to you for such Abandoned Goods (without binding ourselves, we note that this provision is solely intended to alleviate our inventory storage and tracking obligations, and it is our intention to donate any such Abandoned Goods to charity, but we may dispose of them once they become our property in our sole, exclusive and unreviewable discretion).
8 Risk of Loss. We shall have no liability to you or any third parties for any loss or damage to the Goods in transit to us, and you hereby indemnify us and hold us harmless in respect of any such damages. We will endeavor to use reasonable care in the handling, display and storage of your Goods, using not less than the same degree of care which we utilize with respect to our own goods of a similar nature. However, in the event that any of the Goods are lost or stolen, or are damaged or destroyed by fire, flood, customer handling or other causes beyond our reasonable control, then the risk of loss remains with you, and we assume no responsibility or obligation to make any payment or reimbursement in respect of any such loss or damage, or for any special or consequential damages. We make no assurance that our insurance will provide coverage for the Goods or the amount which any insurer may pay in respect of any casualty relating to the Goods.
9 Customer Returns or Adjustments. From time to time, customers may make claims or seek adjustments in respect of latent defects or other claimed deficiencies with respect to products that we sell. We reserve the right, in our good faith judgment, to make allowances and/or accept returns of Goods, and in such circumstances, such allowances or returns will be treated as an adjustment to the net proceeds for purposes of calculating our respective shares of net proceeds for purposes of paragraph 5 above.
10 Mail-In Consignors. To the extent that you provide us with Goods other than by in-person delivery at our retail store, you and we will nonetheless endeavor to implement these Terms and Conditions as closely as possible, including (a) the issuance of Confirmations by mail, overnight courier or e-mail, notification of sale by mail or e-mail, transmittal of payment checks to you by first class South African
mail to your address indicated above (or such other address as you may notify us of in writing), and return of any unaccepted or unsold Goods to you by such means as you designate (with all shipping charges to be paid for by you).
11 Miscellaneous. This Agreement constitutes the sole and entire agreement between you and us regarding the subject matter hereof, and neither you nor us has made any representation or warranty except as expressly stated above. No amendment of this Agreement, or any waiver hereunder, will be valid unless evidenced by a further written agreement signed by you and us. This Agreement is binding on and enforceable by you and us and your and our successors and assigns. This Agreement will be governed by and construed in accordance with the laws of South Africa.