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”).
1. RECITALS. The RealReal 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 The RealReal's online and other forms, or collected from Consignor (the “Consignor”) by an employee of The RealReal 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 The RealReal, and The RealReal wishes to sell that Property on behalf of Consignor. This means that Consignor transfers possession but not ownership of the Property to The RealReal, 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 The RealReal's Terms of Service (see The RealReal's website at www.therealreal.com), which terms may be amended from time to time at The RealReal’s sole discretion, the parties agree as follows:
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE. Consignor makes the Property available to The RealReal on a consignment basis and The RealReal accepts the Property from Consignor on a consignment basis only. All risk of loss or damage of the Property will pass to The RealReal only when The RealReal takes physical possession of the Property. Consignor retains all risk of loss or damage to the Property until that time; however, if Consignor uses The RealReal's approved method of shipment to The RealReal, specifically using The RealReal's label and current integrated shipping arrangement (the “Label”), then The RealReal 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, The RealReal 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 The RealReal’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 The RealReal's possession, then a Property Sale, as defined below at Section 7, will be deemed to have occurred and The RealReal 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 occurred, the estimated Net Selling Price(s), as defined at Section 8, which is determined solely by The RealReal. This remedy shall constitute the sole remedy and entire recourse of Consignor against The RealReal and is in lieu of any other remedy available as a matter of law or equity.
3. ACCEPTANCE OF PROPERTY; CONDITION OF ITEMS. The RealReal 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 The RealReal's website at www.therealreal.com/designersfor items currently being accepted); (3) it determines in its sole discretion to be authentic; and (4) that is made available to The RealReal in full compliance with the representations and warranties Consignor makes pursuant to this Agreement (“Acceptance”).
Upon receipt, The RealReal will evaluate the Property to determine its authenticity, quality and value. Condition issues will affect the valuation. Property that does not meet The RealReal'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).
4. 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 The RealReal 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 The RealReal determines at any time that an item of Property is counterfeit, The RealReal shall notify Consignor that it has made such determination. Consignor acknowledges and agrees that any item The RealReal determines to be counterfeit will not be returned to Consignor and will be destroyed. See www.therealreal.com/authenticity.
Consignor acknowledges and agrees that The RealReal is subject to laws and regulations relating to claims that consigned items have been stolen. The RealReal takes reports of stolen goods seriously and will cooperate with law enforcement in all investigations.
5. CONSIGNMENT PERIOD AND RETURN OF PROPERTY. The "Consignment Period" for an item of Property begins on the Effective Date and ends 365 days thereafter. At any time during the Consignment Period, and subject to this provision, Consignor may request The RealReal return all or some of the Property, upon written notice to The RealReal and so long as the item of Property has not already been sold (the “Return Request”). Upon such Return Request, The RealReal 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. The RealReal 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, The RealReal 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, The RealReal 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 The RealReal 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 The RealReal. For items that remain unsold after 365 days from Acceptance, The RealReal will, at Consignor’s option and The RealReal’s cost: (i) return the items to the Consignor, or (ii) donate the items to a charity of The RealReal’s choice. If The RealReal 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 RealReal’s choice.
6. EFFORTS TO SELL; PRICE. Subject to Consignor’s performance of its obligations under this Agreement, The RealReal will display on its site and make commercially reasonable efforts to sell the Property. Consignor acknowledges and agrees that:
(a) The RealReal 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, The RealReal will allow an immediate site-wide 20% discount to apply, which will affect the Initial Sale Price;
(c) The RealReal 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 The RealReal and Consignor have otherwise agreed in writing to a specific or minimum price at which an item must be sold.
7. 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 The RealReal and not returned to The RealReal within the period specified in The RealReal's then-current Return Policy (see therealreal.com/returns);
(b) Lost or stolen from The RealReal's stock on hand;
(c) Damaged or destroyed while in The RealReal's possession.
8. 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 item 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.
The RealReal 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.
The RealReal 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 The RealReal.
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, The RealReal 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. The RealReal 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 The RealReal.
9. TERMINATION. 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.
10. NO ASSIGNMENT. Consignor may not assign this Agreement or any interest herein without The RealReal’s prior written consent and any prohibited assignment shall be void.
11. NO PROPERTY WARRANTIES. The RealReal 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.
THE REALREAL DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO ITS SERVICES OR ACTIVITIES HEREUNDER. IN NO EVENT WILL THE REALREAL'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 THE REALREAL'S BUSINESS, AND THE REALREAL WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMER AND LIMITATION.
12. 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 The RealReal 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 RealReal'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.
13. 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.
14. AMENDMENTS TO THIS AGREEMENT. The RealReal 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 The RealReal 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.
15. 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.
16. 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.
17. SEVERABILITY. 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.
18. 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.
19. HEADINGS. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.