Designer Wardrobe Limited
10 Northcroft Street
This contract (this “Agreement”) is between (the “Consignor”) and Designer Wardrobe Limited. (the “Consignee”) (each, a “Party” hereto). This Agreement is valid as agreed for each consignment starting from the date of request to use the DW Valet service.
Designer Wardrobe is engaged in the marketing and sale of designer fashion items;
Consignor owns or controls and has the right to sell certain items, described and itemised on Designer Wardrobe's online or other forms, or collected from Consignor (the "Consignor") by an employee of Designer Wardrobe as part of its consignor service (collectively, the "Property"). Consignor wishes to sell the Property sent to Designer Wardrobe.
Consignor desires that the Property be sold on consignment by Designer Wardrobe, and Designer Wardrobe wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to Designer Wardrobe, subject to these Consignment Terms (the "Agreement"). Consignor gives permission for Designer Wardrobe to store consigned item/s at a secure facility affiliated with Designer Wardrobe for the logistical and express purposes of Consignment.
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 Designer Wardrobe's Terms of Service (see Designer Wardrobe's website at designerwardrobe.co.nz), which terms may be amended from time to time at Designer Wardrobe’s sole discretion, the parties agree as follows:
Consignor makes the Property available to Designer Wardrobe on a consignment basis and Designer Wardrobe accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to Designer Wardrobe only when Designer Wardrobe takes physical possession of the Property. Consignor retains all risk of loss or damage to the Property until that time; however, if Consignor uses Designer Wardrobe's approved method of shipment to Designer Wardrobe, specifically using Designer Wardrobe's “DW Valet Kit”, then Designer Wardrobe 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, Designer Wardrobe 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 Designer Wardrobe’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 Designer Wardrobe's possession, then a Property Sale, as defined below at Section 7, will be deemed to have occurred and Designer Wardrobe will reimburse Consignor in the amount of Consignor's Commission (also defined below), based on the damaged or lost Property's Net Selling Price(s), as defined at Section 8, and as determined solely by Designer Wardrobe.
This remedy shall constitute the sole remedy and entire recourse of Consignor against Designer Wardrobe and is in lieu of any other remedy available as a matter of law or equity.
Designer Wardrobe 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 Designer Wardrobe's website at https://designerwardrobe.co.nz/brands/valet for items currently being accepted); (3) it determines in its sole discretion to be authentic; and (4) that is made available to Designer Wardrobe in full compliance with the representations and warranties Consignor makes pursuant to this Agreement ("Acceptance").
Consignor acknowledges that if an item requires moderate cleaning/repair in order to be saleable as per our standards, that Designer Wardrobe may at its sole discretion charge a cleaning/repair fee for any associated costs, and this will be reflected as a deduction from the Net Selling Price (See “Net Selling Price” in section 8).
Upon receipt, Designer Wardrobe will evaluate the Property to determine its authenticity, quality and value. Condition issues will affect the valuation. Property that does not meet Designer Wardrobe's quality standards will not be Accepted and will be returned to Consignor at Consignor's expense (see "Unauthenticated Items" and "Consignment Period” and “Standard Return Rate" below).
Consignor is responsible for ensuring the authenticity of all items that Consignor offers or provides for consignment. In the event Designer Wardrobe 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 Designer Wardrobe determines at any time that an item of Property is counterfeit, Designer Wardrobe shall notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item Designer Wardrobe determines to be counterfeit will not be returned to Consignor and will be destroyed.
Consignor acknowledges and agrees that Designer Wardrobe is subject to laws and regulations relating to claims that consigned items have been stolen. Designer Wardrobe takes reports of stolen goods seriously and will cooperate with law enforcement in all investigations.
The "Consignment Period" for an item of Property begins on the day that the item is publicly published for sale on the Designer Wardrobe platform (or any partnering platforms), and ends exactly 42 days thereafter. At any time during the Consignment Period, and subject to this provision, Consignor may request Designer Wardrobe return all or some of the Property, upon written notice to Designer Wardrobe and so long as the item of Property has not already been sold (the "Return Request"). Upon such Return Request, Designer Wardrobe will make its best efforts to remove the item of Property from the site before it is sold.
(a) If the Return Request (“Return Request”) is made before the conclusion of Consignment Period, as defined above, the Property will be returned within 7 days of the Return Request. Designer Wardrobe reserves the right to pass on our standard costs (See below “Our Standard Return Rate”) of 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, Designer Wardrobe 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 before the conclusion of the Consignment Period, Designer Wardrobe reserves the right to charge Consignor a fee which fee reflects the up-front costs to Designer Wardrobe of storing, cataloging and photographing the Property in preparation for sale.
In the event of a non-sale at the conclusion of the Consignment Period, the Consignor will be notified via electronic mail, and the Consignor may initiate a “Return Request” or “Donation to Charity” via the Designer Wardrobe platform as set out below:
(b) Return Request: Consignor acknowledges that Designer Wardrobe will charge a Return fee at our Standard Return (“Our Standard Return Rate”) as set out below. After settlement, Designer Wardrobe will send back all items within 7 days. For the sake of clarity, Designer Wardrobe shall have no obligation to return such Property unless and until Consignor has provided for the cost of return shipping at its sole expense.
Our Standard Return Rate is:
$0.95 per item
(c) Charitable Donation: Consignor may at their sole discretion, via the Designer Wardrobe platform or written consent, choose to have their item/s donated to charity at no extra charge to the Consignor. Consignor acknowledges that upon confirming a donation to Charity, Designer Wardrobe obtains full ownership of the Property for the sole purpose of transfer to an applicable Charity, and Consignor acknowledges that the donated item bears nil consideration from Designer Wardrobe or any other applicable party. For the sake of clarity, Consignor agree to not receive any payment in any form for a donated item, from Designer Wardrobe or any other applicable Party. Additionally, the Consignor acknowledges that the Property will be donated to a Charity of Designer Wardrobe’s sole discretion.
(d) In the event of a non-sale after conclusion of the Consignment Period (“Consignment Period”) as set out above - Consignor acknowledges that Designer Wardrobe will make multiple attempts of contact via electronic mail to the address on record. If no action is taken in regard to a decision of a “Return” or “Charitable Donation” from the Consignor after a period of 14 days from initial contact, Designer Wardrobe will assume by default that the Consignor has chosen a Charitable Donation, as per the same terms set out in 5(c).
Subject to Consignor's performance of its obligations under this Agreement, Designer Wardrobe will display on its site and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that:
(a) Designer Wardrobe 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) Designer Wardrobe 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 Designer Wardrobe and Consignor have otherwise agreed in writing to a specific price at which an item must be sold.
(c) Designer Wardrobe at its sole discretion will periodically mark down items over time using an algorithmic-based formula that will lower the selling price in order to efficiently market and sell the Property, unless Designer Wardrobe and Consignor have otherwise agreed in writing to a specific price at which an item must be sold.
(d) Designer Wardrobe may, as a means to sell the Property, list the item on other websites or venues at its discretion and without notice to Consignor. Any fees charged to Designer Wardrobe as a result of selling on websites or venues outside of the Designer Wardrobe platform will be absorbed by Designer Wardrobe and not passed on to Consignor.
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 and paid to Designer Wardrobe
(b) Lost or stolen from Designer Wardrobe's stock on hand;
(c) Damaged or destroyed while in Designer Wardrobe's possession.
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, shipping, cleaning, handling and admin fees - the “Net Selling Price”.
Consignor acknowledges and agrees it will receive the following Commission (as defined below, the "Commission") based on the aforementioned Net Selling Price of an item of Property:
(a) A Commission equal to 55% of the Net Selling Price where the item sold (the "Sale") is less than $65 NZD.
(b) A Commission equal to 60% of the Net Selling Price where the item sold (the "Sale") is between $65.01 and $99.99 NZD.
(c) A Commission equal to 70% of the Net Selling Price where the item sold (the "Sale") is between $100.01 and $299.99 NZD.
(d) A Commission equal to 80% of the Net Selling Price where the item sold (the "Sale") is greater than $300 NZD.
Designer Wardrobe may at any time and in its sole discretion (i) temporarily increase the Commission from time to time for promotional reasons without notice or (ii) make other changes to its Commission structure and the Commissions upon fourteen (14) days' notice to you in accordance with Section 14. The Commission shall be Consignor's sole compensation under this Agreement.
Designer Wardrobe agrees to deposit applicable earnings into Consignor’s DW Wallet and will process any withdrawal requests when able (typically every weekday). Consignor may also use any earnings to purchase any available item on the Designer Wardrobe marketplace. Consignor acknowledges that withdrawals are processed via Direct Debit (or Bank Deposit) to a valid New Zealand-based Bank Account only.
Designer Wardrobe does not take any responsibility for any inaccuracies on the part of Consignor that result in a payment not being made to the intended recipient, nor does it take any responsibility for delays of payment that are external to Designer Wardrobe - for example a payment delay as result from a fault at Consignor or Consignee’s Nominated Bank.
In the event of any dispute between the Parties, Designer Wardrobe 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. Designer Wardrobe 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 Designer Wardrobe.
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.
Consignor may not assign this Agreement or any interest herein without Designer Wardrobe's prior written consent and any prohibited assignment shall be void.
Designer Wardrobe 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.
Designer Wardrobe DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL DESIGNER WARDROBE'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 DESIGNER WARDROBE'S BUSINESS, AND DESIGNER WARDROBE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
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 law of New Zealand, or any administrative regulation.
Consignor hereby agrees to indemnify and hold Designer Wardrobe harmless from all damages, suits, litigation, awards, and costs, including but not limited to legal or attorney fees and costs, as a result of or arising out of in any way Designer Wardrobe'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.
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 Zealand, without regard to its conflicts of laws principles. The Parties hereby irrevocably consent to the jurisdiction of New Zealand with respect to any matter arising under this Agreement.
Designer Wardrobe 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 Designer Wardrobe 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.
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.
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.
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.