THE MODERNIST CONSIGNMENT AGREEMENT
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS A MEDIATION PROVISION AND CLASS ACTION WAIVER WHICH MAY SIGNIFICANTLY AFFECT YOUR RIGHT TO HAVE A DISPUTE HEARD IN COURT, INCLUDING YOU RIGHT TO FILE A LAWSUIT IN COURT. PLEASE READ THIS AGREEMENT AND THE MEDIATION PROVISION AND CLASS ACTION WAIVER BELOW CAREFULLY.
This Consignment Agreement (the “Agreement”) states the terms and conditions that govern the contractual legal agreement between you (the “Consignor”) and The Modernist and/or Lux Stylings Boutique (the “Service Provider” or the “Consignee”)who agree to be bound by this Agreement.
WHEREAS, the Consignor owns right and title to the items described on Section A (the “Consigned Items”), and the Service Provider desires to take possession of the Consigned Items with the intention of selling it to a third party.
NOW, THEREFORE, in consideration of the foregoing promises, the mutual covenants contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto, the Consignor and the Service Provider (individually, each a “Party” and collectively, the “Parties”) intending to be legally bound, hereby agree as follows:-
IF NOT SOONER TERMINATED AS PROVIDED HEREIN, THIS AGREEMENT RENEWS AUTOMATICALLY FOR SUCCESSIVE TWO-MONTH TERM ON THE FINAL DAY OF THE MONTH THAT IS TWO MONTHS FROM THE DATE THE CONSIGNOR EXECUTES THIS AGREEMENT (THE “EFFECTIVE DATE” AND THE “TERM”).
Consignor owns or controls and has the right to sell certain items (the “The Consigned Item(s)”). The Consignor hereby grants to the Service Provider exclusive right to display, publish, and sell the Consigned Items according to the Agreement. Consignor desires that the Consigned Items be sold on consignment by the Service Provider and the Service Provider wishes to sell the Consigned Items on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Consigned Items to the Service Provider subject to this 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 the Service Provider, which terms may be amended from time to time at The Modernist’s sole discretion, the parties agree as follows:
2) PRODUCT INFORMATION
All the Consigned Items to be offered for sale via the Service Provider are subject to approval by the Service Provider. As part of this approval process the Consignor are required to let the Service Provider have certain information about the Consignor and the Consigned Items for sale (the “Information”). The Information includes (but is not limited to) the Consignor full name, address and contact details, accurate and complete details of condition of the Consigned Items, age, materials, original purchase price (including proof of purchase, certificates of authenticity and original packaging, wherever possible). The Consignor shall be responsible for the accuracy and completeness of the Information provided to the Service Provider, including for the detailed descriptions of the Consigned Items and their condition. The Service Provider then notify the Consignor by email as soon as reasonably practicable whether the Service Provider approve the Consigned Items for resale and give the Consignor a guidance price range for the sale of the Consigned Items (the “Guide Price”). If the Consignor wish to proceed on that basis the Consignor are then be required to send the Consigned Items to the Service Provider at the Consignor own cost. The Consignor should send the Consigned Items by post or by courier on a signed for basis at the Consignor own cost. Alternatively, the Consignor may hand deliver the Consigned Items to the Service Provider showroom by prior arrangement. In certain circumstances the Service Provider may be prepared to collect the Consigned Items from the Consignor, subject an additional fee. All Consigned Items are at the Consignor own risk. The Consignor are recommended to insure its own The Consigned Items during whilst they are in the Service Provider possession. Upon receipt of the Consigned Items, the Service Provider will manually inspect each item to assess condition, authenticity and any undeclared damage which may affect the Service Provider’s initial Guide Price. A revised Guide Price will be notified to the Consignor by email within three (3) working days of receipt of the Consigned Items. The Consignor should notify the Service Provider in writing within a further three (3) working days whether the revised Guide Price is acceptable or whether the Consignor wish the Service Provider to return the Consigned Items to the Consignor at the Consignor own cost. Should the Service Provider deem (in its absolute discretion) at any time that any The Consigned Items are counterfeit, Section 5 will be applied as listed below. Display of the Consignor’s Consigned Items or Information on the Website shall be entirely at the Service Provider’s sole discretion.
2.1) CONDITION OF CONSIGNED ITEM(S)
(a) The Service Provider will only accept Products that are authentic, clean, and in excellent condition. Any defects should be brought to the Service Provider 's attention upon delivery of the Products. The Service Provider will document condition of all Products in a report and information of the Consigned Items from the Consignor from will be made available to the Service Provider upon request. Consignor agrees that the condition of the Product may affect the value of the Product.
(b) Upon receipt of Consigned Item(s), the Service Provider shall evaluate each Consigned Item to determine its quality and authenticity. Any Product that fails to meet the Service Provider 's quality and authenticity standards will be returned to Consignor, at Consignor's own expense. If any Product provided to the Service Provider hereunder is found to be counterfeit, the Service Provider reserves the right to confiscate such Product and provide the Product and any other information (including, Consignor's personal information) requested by the person, government authority or agency looking to trace the origin of such counterfeit Product, in accordance with Section 5 below.
3) DELIVERY OF THE CONSIGNED ITEMS; RISK OF LOSS
Consignor makes the Consigned Items available to the Service Provider on a consignment basis and the Service Provider accepts the Consigned Items from Consignor on a consignment basis only. All risk of loss or damage of the Consigned Items will pass to the Service Provider only when the Service Provider takes physical possession of the Consigned Items. Consignor retains all risk of loss or damage to the Consigned Items at all time.
4) ACCEPTANCE OF THE CONSIGNED ITEMS; CONDITIONS OF THE ITEMS
The Service Provider only accepts the Consigned Items: (1) it determines in its sole discretion to be in resaleable condition; (2) it determines in its sole discretion to be authentic; and (3) that is made available to the Service Provider in full compliance with the representations and warranties Consignor makes pursuant to this Agreement (“Acceptance”). Upon receipt, the Service Provider will evaluate the Consigned Items to determine its authenticity, quality and value. Condition issues will affect valuation. The Consigned Items that do not meet the Service Provider quality standards will not be accepted and will be returned to Consignor at Consignor’s expense (see “Inauthentic Item” and “Consignment Period and Return of The Consigned Items” below).
5) INAUTHENTIC ITEM, COUNTERFEIT, OR STOLEN ITEM
The Service Provider prides itself on only selling 100% authentic designer items. The Service Provider reserve the right to work with professional independent authenticators for the Consigned Items at the Service Provider’s discretion. The consignor is responsible for ensuring the authenticity of all items that Consignor offers or provides for consignment. In the event the Service Provider determines it cannot confirm the authenticity of any item of the Consigned Items offered or provided for consignment, the Service Provider shall have the right in its sole discretion to refuse to accept the item(s).
Should the Consigned Item be deemed inauthentic or the authenticity cannot be conclusively determined, the Service Provider shall notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item the Service Provider determines to be counterfeit are applicable with a charge of RM1,000.00 (“Administrative Fee”) for each of the rejected item(s) on the next scheduled invoice and will be returned to the Consignor at the Consignor own cost. In the event of the Consignor’s failure to pay the Administrative fee within seven (7) days of the Service Provider’s notifications, the Service Provider shall be at full liberty to dispose of the said item(s) in any manner as the Service Provider deems fit at the Service Provider’s absolute discretion, the Consignor shall have no further claim whatsoever against the Service Provider.
Consignor acknowledges and agrees that the Service Provider is subject to laws and regulations relating to claims that consigned items have been stolen. the Service Provider takes reports of stolen goods seriously and will cooperate with law enforcement in all investigations.
6) CONSIGNMENT PERIOD AND RETURN OF THE CONSIGNED ITEMS
The “Consignment Period” for an item of The Consigned Items begins on Acceptance and ends two (2) months thereafter, whether or not such Consignment Period extends beyond the term of this Agreement. At the end of the Consignment Period, and subject to this provision, for items that remain unsold after two (2) months from Acceptance, Consignor may arrange a suitable time and date to pick up all or some of the Consigned Items or request the Service Provider to post the Consigned Items to the Consignor at the Consignor sole expenses, upon seven (7) days prior written notice to the Service Provider and so long as the item of the Consigned Items has not already been sold (the “Return Request”) not limited to:-
6.1) RETURN OF CONSIGNED ITEMS
At any time after the termination of the Consignment Period, Consignor may, by written notice to the Service Provider, request return of Products from the Service Provider. All such returns will at Consignor's expense. The Service Provider reserves the right to pass on all costs of such returns to the Consignor and in such case. All such returns will at Consignor's expense. In the event, Consignor requests the Service Provider to return Products prior to the termination of the Consignment Period, the Service Provider shall charge a fee of Five Hundred Ringgit Malaysia (RM 500.00) per Consigned Item to cover the Service Provider's inventory holding cost, including the up-front costs to the Service Provider of storing, cataloguing and photographing the Consigned Items in preparation for sale. Any Products not sold during the Consignment Period, will be returned to the Consignor, at Consignor's expense. If the Service Provider 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 the Service Provider’s choice.
7) EFFORTS TO SELL; PRICING
Subject to Consignor’s performance of its obligations under this Agreement, the Service Provider will display on its site and make commercially reasonable efforts to sell the Consigned Items. Consignor acknowledges and agrees that:
(a) The Service Provider in its sole discretion will determine the initial selling price for the Consigned Items (the “Initial Sale Price”), based on its evaluation of the Consigned Items together with its determination of the current market price for each specific item of The Consigned Items.
(b) In order to market and promote the sale of the item, the Service Provider will allow an immediate site-wide 10% discount to apply, which will affect the Initial Sale Price.
(c) The Service Provider may offer additional discounts and promotions, assigning the Consigned items to other resellers or partners during the Consignment Period, at its sole discretion and without notice to Consignor as a means to efficiently market and sell the Consigned Items, unless the Service Provider and Consignor have otherwise agreed in writing to a specific price or method at which an item must be sold.
8) RIGHT TO SELL AND Title to the Consigned Items
Consignor hereby grants to the Service Provider the right to sell Consigned Item(s) on behalf of Consignor pursuant to this Agreement. During the Consignment Period, the Service Provider shall use commercially reasonable efforts to make available for purchase the Consigned Item(s). The Service Provider reserves the right to include Consigned Item(s) as part of the sales and promotions that the Service Provider offers to its customers.
Title to and ownership of the Consigned Items will remain with Consignor until a Consigned Items Sale occurs and shall be deemed to have occurred where an item of The Consigned Items is sold by the Service Provider and not returned to the Service Provider within the period specified in the Service Provider then-current Return Policy.
9) CONSIGNMENT FEE
The Service Provider will mark up on top of the agreed quote. The consignor will not bear any additional consignment fees or service charges. Quote is subject to change if the item is not sold within a month and/or if there are any potential buyers who would like to negotiate or request for a discount with the knowledge and consent of the Consignor as per Section 7. For the avoidance of doubt, The Service Provider is solely entitled to the full mark up amount.
Initial price is determined according to current market value through the Service Provider research data. The Service Provider issue consignment payments via wire transfer once the item has sold within seven (7) working days. Without prejudice to any other right or remedy, the Service Provider reserve the absolute right to set off any amount payable by the Consignor and owing to the Service Provider at any time by the Consignor against any amount.
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes. Termination shall be effective when either Party serves written notice thereof on the other Party. Costs listed above under Section 6, Consignment Period and Return of The Consigned Items, will apply.
The Service Provider does not make any representation or warranty either express or implied about any item of The Consigned Items, except to the extent a warranty is required by law and cannot be disclaimed.
THE SERVICE PROVIDER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL THE SERVICE PROVIDER LIABILITY HEREUNDER EXCEED THE AMOUNT IT HAS ACTUALLY RECEIVED AS A RESULT OF SELLING CONSIGNOR’S THE CONSIGNED ITEMS HEREUNDER. THE FOREGOING DISCLAIMER AND LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF THE SERVICE PROVIDER BUSINESS, AND THE SERVICE PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
13) CONSIGNOR’S REPRESENTATIONS AND WARRANTIES
Consignor hereby represents and warrants that it has good and marketable title to each item of the Consigned Items and has the right to consign and sell the Consigned Items, none of which is subject to any liens or other encumbrances, and further represents and warrants that the Consigned Items does not infringe upon or violate any trademark, copyright, or other proprietary rights of any third party, any state or federal law, or any administrative regulation.
Consignor hereby agrees to indemnify and hold the Service Provider and the Service Provider’s officers, directors, shareholders, employees, consultants, agents, and related bodies corporate 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 the Service Provider display or sale of the Consigned Items 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.
The Service Provider will not be liable, in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise out of or in connection with the conditions for:
Any economic losses (including without limitation loss of revenues, profits, contracts, business or anticipated savings); and
Any loss of goodwill or reputation; and
Any special or indirect losses suffered or incurred by that party arising out of or in connection with the provisions of any matter under the conditions.
15) MANDATORY MEDIATION AGREEMENT AND CLASS ACTION WAIVER
EXCEPT IF THE CONSIGNOR OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THIS SECTION, THE CONSIGNOR and THE SERVICE PROVIDER agree that any legal or equitable claim arising out or relating in any way to THE CONSIGNOR’S RELATIONSHIP WITH THE SERVICE PROVIDER, THE CONSIGNOR use of Services, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS Term, and the formation, validity, enforceability, scOpe, or applicability of this Term, the Site, any Products or services sold or distributed by The SERVICE PROVIDER or through The SERVICE PROVIDER, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, will be resolved WITH THE FOLLOWING PROCEDURES:
internally between THE CONSIGNOR and The SERVICE PROVIDER (“NEGOTIATION”)
UPON WRITTEN NOTICE OF ANY DISPUTES, THE PARTIES SHALL ATTEMPT TO RESOLVE IT PROMPTY AND INTERNALLY BY NEGOTIATION BETWEEN THE CONSIGNOR AND THE SERVICE PROVIDER.
IF THE DISPUTES IS NOT SETTLED THROUGH NEGOTIATION IN ACCORDANCE WITH PARAGRAPH A ABOVE, THE PARTIES AGREE TO RESOLVE THE DISPUTES By binding, INDIVIDUAL mediation AND THE MODERNIST RESERVED THE RIGHT TO ELECT A MEDIATOR AND THE PARTIES SHALL AGREE ON THE MEDIATOR APPOINTED BY THE MODERNIST.
THE CONSIGNOR agree that any claims that THE CONSIGNOR may have in the future must be resolved through binding mediation. THE CONSIGNOR waive the right to have THE CONSIGNOR’S dispute heard in court and waive the right to bring class claims. THE CONSIGNOR understand that discovery and appeal rights are more limited in mediation. THE CONSIGNOR AND THE SERVICE PROVIDER each agree that any MEDIATION will be conducted on an individual basis between THE CONSIGNOR and The SERVICE PROVIDER and not in a class, consolidated or representative action or arbitration. When a settlement is reached, both parties shall sign the settlement agreement and/or form and forgo THE CONSIGNOR rights to appeal.
Amendments to this agreement
No amendments, modification or waiver of any terms of this Agreement shall be valid unless it is written and approved by all parties to this transaction.
LAW AND JURISDICTION
This Agreement shall be governed and constituted in all respects in accordance with the Laws of Malaysia.
This Agreement, including all attachments, sets forth the final, complete and exclusive agreement of the Parties regarding the subject matter hereof and terminates and supersedes all prior understandings, communications, representations and agreements on the subject matter hereof.
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 term to 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 any part of the conditions shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the conditions and shall not affect the validity and enforceability of any of the remaining provisions of the conditions.
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.
CHANGE OF NAME
The Service Provider shall have the absolute right to vary, amend and/or modify the name of the business without giving any reason or notice to the Consignor and the Consignor shall agree to and accept the name so varies, amended and/or modified without any objection whatsoever, and without the Service Provider having to compensate the Consignor any resulting costs, expenses or losses.
Each party hereby acknowledges that it has or may have access to confidential and proprietary information of the other party including, without limitation, business information related to purchasing, supplies, product pricing, vendor identification, and other financial information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information does not include (i) information already known outside the scope of this Agreement, (ii) information in the public domain through no wrongful act of the receiving party, or (iii) information received outside the scope of this Agreement from a third party not under a confidentiality obligation to the disclosing party. The receiving party shall (a) only use the disclosing party's Confidential Information to perform its obligations pursuant to this Agreement, (b) not disclose the disclosing party's Confidential Information to any person or entity, except to its own employees or agents having a "need to know" (and who themselves are bound by similar nondisclosure restrictions). Upon termination, or at any time upon request by the disclosing party, the receiving party shall return all Confidential Information in its possession or control or, at the sole discretion of the disclosing party may otherwise verify its destruction or deletion to the disclosing party.
If the transportation or delivery of any Product is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of Consignor including, but not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of God or of the public enemy, riots, public disorders, strikes, labour disputes, transportation embargoes or delays, failure of common carriers, shortages of any Products, or acts or regulations or priorities of the government or branches or agencies thereof, Consignor shall be excused from making deliveries hereunder to the extent of such prevention, restriction or interference.
PERSONAL DATA PROTECTION
The Service Provider takes reasonable steps to ensure that the personal information the Service Provider collect. The Service Provider holds all personal information in compliance with the Malaysia Personal Data Protection Act (PDPA) 2010.
LIMITATION OF LIABILITY (WEBSITE)
While the Service Provider will use reasonable endeavours to verify the accuracy of any information the Service Provider place on the website, the Service Provider make no warranties, whether express or implied in relation to its accuracy. The website is provided on an "as is" and "as available" basis without any representation or endorsement made and the Service Provider make no warranties of any kind, whether express or implied, in relation to the website, or any transaction that may be conducted on or through the website including but not limited to, implied warranties of non-infringement, compatibility, security, accuracy, conditions of completeness, or any implied warranty arising from course of dealing or usage or trade.
The Service Provider makes no warranty that the website will be uninterrupted, timely or error-free, that defects will be corrected, or that the site or the server that makes it available are free of viruses or bugs or represents the full functionality, accuracy, reliability of the website. The Service Provider will not be responsible or liable to the users of the Site for any loss of content or material uploaded or transmitted through the website.
To the fullest extent permissible under applicable law, the Service Provider disclaims any and all warranties of any kind, whether express or implied, in relation to the Consigned Items. This does not affect the Consignor’s statutory rights as a consumer, nor does it affect the Consignor’s contract cancellation rights.
The Service Provider reserves the right to modify or withdraw, temporarily or permanently, this Agreement (or any part thereof) with or without notice to the Consignor and the Consignor confirms that the Service Provider shall not be liable to the Consignor or any third party for any modification to or withdrawal of the Agreement not limited to change the conditions from time to time, and the Consignor continued use of the Service Provider’s service (or any part thereof) following such change shall be deemed to be the Consignor’s acceptance of such change. It is the Consignor responsibility to check regularly to determine whether the conditions have been changed. At the Service Provider’s sole discretion, the Service Provider chooses which items based on desirability and ease of sale.
All the schedules annexed hereto shall be taken read and construed as an integral and essential part of this Agreement.
Questions about the Terms of Service should be sent to us at:
Level 35-02 (East Wing), Q sentral,
2a, jalan stesen sentral 2, kl sentral,
kuala lumpur 50470, malaysia.
Tel : +603 – 2731 9225
By signing this agreement, I (“Consignor”) hereby agree with this Agreement with all of the points outlined in this document and assign the Service Provider to sell the items as listed above. I certify that I am the owner of the above listed items and have good title and the right to sell them. I agree to accept all responsibilities for providing good title and for delivery of title to the purchaser. I agreed that The Modernist will not be responsible for the loss of any items due to fire, damage and/or any other incidents. Payment will be made via wire transfer to consignor’s bank account within seven (7) working days from date of sale.
I hereby acknowledge that I have read, fully understand and agree comply with the above Terms & Conditions.