These terms and conditions create a contract between you and Broke Bish Bargains LLC, AKA The Closet (the "Agreement"). Please read this Agreement carefully. To confirm your understanding and acceptance of the Agreement, click "Agree" or sign the Agreement. You must agree to this Agreement if you wish to consign goods through TheClosetNY.com.
Broke Bish Bargains Terms of Service located at: (Click Here) , are also included in this Agreement and apply to your and Broke Bish Bargains activities under this Agreement.
ONCE YOU AGREE TO THIS AGREEMENT, IT WILL REMAIN IN EFFECT UNTIL YOU OR BROKE BISH BARGAINS TERMINATES IT.
Broke Bish Bargains markets and sells luxury designer items, clothing accessories, shoes, and bags.
You would like Broke Bish Bargains to sell the items that you have sent to us or that we have collected from you (collectively, the "Property") on a consignment basis. This means that you, not Broke Bish Bargains, will still own the Property, even after you transfer physical possession of the Property to Broke Bish Bargains. After Broke Bish Bargains receives or picks up Property from you, Broke Bish Bargains will send you an email in accordance with "Notices" at Section 19 below confirming the items of Property received. Once the items have been evaluated, inspected, and authenticated by Broke Bish Bargains authentication team, you will be able to log into your "MySales" page on Broke Bish Bargains site to view your items that have been accepted for consignment (the items are then "Accepted") and the list price(s) assigned to those Accepted items. Please note that all prices are determined at Broke Bish Bargains sole discretion unless previously agreed in writing. The Accepted items will then be processed and listed as available for sale on the site.
- DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Broke Bish Bargains accepts the Property from you on a consignment basis only. You are responsible for all risk of loss or damage to the Property until Broke Bish Bargains takes physical possession of it; however, if you use Broke Bish Bargains approved, pre-paid shipping label and approved method of shipment to ship your Property, Broke Bish Bargains will assume the risk of loss or damage to the Property upon shipment. A "Shipment" means items of Property that are shipped together under one Broke Bish Bargains approved, pre-paid shipping label.
If an item of Property is damaged, stolen, or lost while in Broke Bish Bargains possession, it will be treated as Sold (defined in "Title to Property" at Section 7 below) and Broke Bish Bargains will pay you a Commission (defined in "Commissions and Payment" at Section 8 below) on that item. The Commission will be based on the damaged, stolen, or lost item’s estimated Net Selling Price (defined in "Commissions and Payment" at Section 8 below), which will be determined solely by Broke Bish Bargains. Except in New Jersey, this remedy shall constitute your sole remedy and entire recourse against Broke Bish Bargains for Property that is damaged, stolen, or lost and is in lieu of any other remedy otherwise available as a matter of law or equity.
- PROPERTY ACCEPTANCE CONDITIONS
Upon receipt, Broke Bish Bargains will evaluate each item of Property to determine, in its sole discretion, its authenticity, quality, and value. The item’s condition will affect the valuation.
Broke Bish Bargains only Accepts Property for consignment : (a) that Broke Bish Bargains determines in its sole discretion to be in very good to excellent condition; (b) that is listed in The Broke Bish Bargains current Designer Directory at the time of evaluation (see add link here for items currently being accepted); (c) that Broke Bish Bargains determines in its sole discretion to be authentic; and (d) for which the representations and warranties you make in the "Your Representations, Warranties, and Indemnification" section below are true.
Property that does not meet the above requirements will not be accepted and will be either (1) returned to you at your expense or (2) with your approval, confirmed in writing, Broke Bish Bargains will donate your items to a charity of its choice (see "Unauthenticated Items" at Section 4 below and "Consignment Period and Return of Property" at Section 5 below for more information).
- UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
You are responsible for ensuring the authenticity of all Property you provide to us. If Broke Bish Bargains cannot confirm the authenticity of any item of Property you have provided, it shall have the right in its sole discretion to refuse to accept the item. If Broke Bish Bargains determines at any time that an item of Property is counterfeit, Broke Bish Bargains shall notify you that it has made such a determination and you will have an opportunity to provide proof of purchase/other proof of authenticity acceptable to Broke Bish Bargains. You acknowledge and agree that any item Broke Bish Bargains finally determines to be counterfeit will not be returned to you and will be destroyed.
You acknowledge and understand that Broke Bish Bargains is subject to laws and regulations relating to claims that consigned items are counterfeit, have been stolen, or otherwise violate applicable law. Broke Bish Bargains takes such reports seriously and will cooperate with law enforcement in all investigations.
- CONSIGNMENT PERIOD AND RETURN OF PROPERTY
The "Consignment Period" for each item of Property begins on the date Broke Bish Bargains accepts the item for consignment and ends 365 days thereafter, even if this Agreement has been terminated during that time by you or Broke Bish Bargains. At any time during the Consignment Period, and subject to this provision, you may request in writing that Broke Bish Bargains return the item (a "Return Request"), so long as the item has not already been Sold. Once Broke Bish Bargains receives your Return Request, it will use commercially reasonable efforts to remove the item from brokebishbargains.com, before it is sold. It is your responsibility to ensure that Broke Bish Bargains has your most current contact information and mailing address.
(a) If the Return Request is made 90 days or less from the date Broke Bish Bargains Accepted the item of Property, TRR will return the item within 30 days. Broke Bish Bargains will charge you the costs of return and, in such case, such costs shall be deducted from your pending Commissions. If you do not have enough pending Commissions available to cover the costs of return, Broke Bish Bargains shall have no obligation to return the item to you unless and until you pay Broke Bish Bargains the costs of return prior to shipment.
Additionally, Broke Bish Bargains will charge you (i) a fee of $100 per fine art piece and $15 per every other item, which fees reflect Broke Bish Bargains up-front costs of storing, cataloging, and photographing the item in preparation for sale, plus (ii) applicable shipping costs.
(b) If the Return Request is made more than 90 days after Acceptance, the item will be returned within 30 days at Broke Bish Bargains expense and no fees will be added.
(c) If an item remains unsold at the end of the Consignment Period, Broke Bish Bargains will contact you and, at your option and Broke Bish Bargains expense: (i) return the item to you or (ii) donate the item to a charity of the Broke Bish Bargains choice.
If at the end of the Consignment Period Broke Bish Bargains is unable after using commercially reasonable efforts to contact you at the email or physical address it has on file for you in accordance with the "Notices" at Section 19 below, the item may be donated to a charity of Broke Bish Bargains choice.
- EFFORTS TO SELL; PRICE
So long as you comply with this Agreement, Broke Bish Bargains will display on the Site and, at Broke Bish Bargains sole discretion display and will make commercially reasonable efforts to sell the Property. You acknowledge and agree that:
(a) Broke Bish Bargains in its sole discretion will determine the initial selling price for each item of Property (the "Initial Sale Price") based on its evaluation of that item, together with its determination of the current market price for that item;
(b) In order to market and promote the sale of each item, Broke Bish Bargains may in its sole discretion apply an immediate 20% discount to the item, which will affect the item’s Initial Sale Price, unless Broke Bish Bargains and you have otherwise agreed in writing to a specific price at which a specific item must be sold.
(c) Broke Bish Bargains may offer additional discounts and promotions during the Consignment Period, at its sole discretion and without notice to you, as a means to efficiently market and sell the Property, unless Broke Bish Bargainsl and you have otherwise agreed in writing to a specific price at which a specific item must be sold.
- TITLE TO PROPERTY
You will continue to own and have title to each item of Property until that item is "Sold". An item will be considered Sold when:
(a) it is sold by Broke Bish Bargains to a customer and not returned to Broke Bish Bargains within the period specified in Broke Bish Bargains then-current Return Policy (see add link to return policy); or
(b) it is lost, stolen, damaged, or destroyed while in Broke Bish Bargains possession.
- COMMISSIONS AND PAYMENT
(a) "Commission Window" means (1) for the first Commission Window, the period that begins on the date your first item of Property is Sold and ends at the end of the month that is one year after such date and, (2) for subsequent Commission Windows, the one-year period that begins on the following day. For example, if your first item of Property sells on March 5, your first Commission Window begins on March 5 and ends on March 31 of the following year and each of your Commission Windows thereafter will begin on April 1 and continue until March 31 of the following year.
(b) "Net Selling Price" means the price at which an item of Property is Sold, less applicable discounts and promotions and excluding taxes and shipping. "Net Sales" means the total amount received by Broke Bish Bargains from the Sale of all of your Property within a Commission Window, less applicable discounts and promotions and excluding taxes and shipping. For example, if you had three items of Property that Sold in a Commission Window whose Net Selling Prices were $5,000, $100, and $4,000, your Net Sales for that Commission Window would be $9,100.
(c) Broke Bish Bargains Rewards program (the "Commission Rates") used to calculate the commission (the "Commission") you receive for each item of Property that is Sold is found at add link here
The Commission Rate that will apply to Sales of your Property within a Commission Window is based on your Net Sales within that Commission Window. Broke Bish Bargains may also, from time to time in its sole discretion, (i) for promotional reasons and without notice, offer Special Commission Rates that apply only to specific item categories, are offered for a specific period of time, or that have other special conditions and (ii) make other changes to its Commission structure and the Commission Rates upon at least fourteen (14) days' notice to you as described in "Amendments to This Agreement" at Section 13 below.
(d) Commission Rate Reset. After the end of the first Commission Window and after the end of each Commission Window thereafter, your starting Commission Rate for the next Commission Window will be set at the highest Commission Rate you achieved in the previous Commission Window (excluding Special Commission Rates). For example, if you reached Net Sales of $11,000 in your first Commission Window and the then-current Commission Rate that applies to Net Sales of $11,000 is 70%, your starting Commission Rate for the next Commission Window will be 70%. If in Commission Window 2, you only reach Net Sales of $1,400 and the then-current Commission Rate that applies to Net Sales of $1,400 is 55%, your starting Commission Rate for Commission Window 3 will be reset to 55%.
(e) A Commission Rate of i) 50% will always apply for any items priced between $146 and $195 and (ii) 40% will always apply for any items priced under $145, regardless of the amount of Net Sales you have achieved in the applicable Commission Window, your starting Commission Rate for any Commission Window, or any other Commission Rates that would otherwise apply.
(f) Calculation of Commissions. Broke Bish Bargains will pay you a Commission on each item of Property that is Sold. The Commission shall be equal to the item’s Net Selling Price multiplied by the applicable Commission Rate. The Commissions you receive for Sales of your Property are the sole compensation you will receive under this Agreement.
(g) Payments. Broke Bish Bargains typically begins processing Commission payments on the 15th day of every month for Sales that occurred during the previous month. For example, payments processed on April 15th would cover the sales period from March 1 through March 31. Payments will be made to you by physical check, direct deposit or, if you elect another payment method acceptable to Broke Bish Bargains, by such payment method.
The timing of processing and delivering Commission payments will vary by the payment method you select but will typically take at least two business days.
Payment processing services for consignors on Broke Bish Bargains are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a consignor on Broke Bish Bargains, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Broke Bish Bargains enabling payment processing services through Stripe, you agree to provide Broke Bish Bargains accurate and complete information about you and your business, and you authorize Broke Bish Bargains to share it and transaction information related to your use of the payment processing services provided by Stripe.
(h) Disputes. If there is a dispute between you and Broke Bish Bargains, Broke Bish Bargains shall have no obligation to pay any Commissions or other amounts due to you, including without limitation, amounts unrelated to the dispute, unless and until the dispute is resolved. Broke Bish Bargains may withhold any Commissions due to you (including any due for Sold items of Property not subject to the dispute) in full or partial satisfaction of any amounts you owe to Broke Bish Bargains.
You and Broke Bish Bargains may each terminate this Agreement in writing at any time, for any reason. Termination will be effective on the date of such notice and the costs listed under "Consignment Period and Return of Property" at Section 5, will apply.
- NO ASSIGNMENT
You may not assign this Agreement or any interest you have in it without Broke Bish Bargains prior written consent. Any prohibited assignment is null and void.
- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE BROKE BISH BARGAINS SERVICES IS AT YOUR SOLE RISK. BROKE BISH BARGAINS CONSIGNMENT AND OTHER SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BROKE BISH BARGAINS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BROKE BISH BARGAINS MAKES NO WARRANTY THAT (A) THE REALREAL’S SERVICES WILL MEET YOUR REQUIREMENTS OR (B) BROKE BISH BARGAINS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM BROKE BISH BARGAINS OR THROUGH OR FROM THE SITE OR BROKE BISH BARGAINS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
BROKE BISH BARGAINS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR FOR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR FOR OTHER INTANGIBLE LOSSES (EVEN IF THE REALREAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE REALREAL’S SERVICES OR THE SITE; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (C) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT; OR (D) ANY OTHER MATTER RELATING TO THE REALREAL’S SERVICES OR THIS AGREEMENT.
IN NO EVENT WILL BROKE BISH BARGAINS LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT IT HAS ACTUALLY RECEIVED AS A RESULT OF SELLING YOUR PROPERTY HEREUNDER.
THE FOREGOING DISCLAIMERS AND LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF BROKE BISH BARGAINS BUSINESS, AND BROKE BISH BARGAINS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH DISCLAIMERS AND LIMITATIONS.
PLEASE SEEK THE ADVICE OF APPROPRIATE PROFESSIONALS REGARDING THE TERMS OF THIS AGREEMENT AND THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT.
- YOUR REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
You hereby represent and warrant that (a) you have good and marketable title to each item of Property and have the right to consign and sell the Property; (b) none of the Property is subject to any liens or other encumbrances; (c) the Property does not include counterfeit goods; and (d) the Property does not infringe upon, misappropriate, or violate any trademark, copyright, or other intellectual property or other proprietary right of any third party, any state or federal law, or any administrative regulation.
You hereby indemnify and hold Broke Bish Bargains harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs, incurred by Broke Bish Bargains as a result of or arising in any way out of Broke Bish Bargains display or sale of the Property, including but not limited to, civil or criminal suits over authenticity or ownership of Property, legality of sales, or copyright or trademark infringement. You expressly 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 Section 12.
This Agreement, or the breach thereof, and all claims of any kind relating to or arising out of this Agreement and the relationship between you and Broke Bish Bargains, whether tort, contract, or statutory, shall be governed by the laws of New York, without regard to its conflicts of laws principles.
- AMENDMENTS TO THIS AGREEMENT
Broke Bish Bargains may update or change any of the terms and conditions of this Agreement at any time in its sole discretion upon 14 days’ notice, including as set forth above in "Commissions and Payment" at Section 8 above, and by notifying you in accordance with "Notices" at Section 19, below.
Revised terms will not apply to Property already Accepted for consignment prior to the effective date of those revised terms.
You shall be bound by all revised terms on the effective date, including any changes to the Commissions or Commission Rates, unless you terminate this Agreement before the effective date of the revised terms. If you do not agree to any revised terms, your sole recourse is to terminate this Agreement in accordance with "Termination" at Section 9 above before the effective date of the revised terms.
- ENTIRE AGREEMENT
This Agreement sets forth the final, complete, and exclusive agreement between you and Broke Bish Bargains regarding the subject matter hereof, and terminates and supersedes all prior understandings or agreements on such subject matter. Except as set forth in "Commissions and Payment" at Section 8 and "Amendments to this Agreement" at Section 13 above, this Agreement may be modified only by a writing signed by you and Broke Bish Bargains.
- NO IMPLIED WAIVER
Any failure by you or Broke Bish Bargains to enforce any provision of this Agreement shall not constitute a waiver of such provision or of any other provision of this Agreement.
If 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 the execution of this Agreement.
- SURVIVAL OF TERMS AFTER AGREEMENT ENDS
Notwithstanding any other provision of this Agreement, any provision of this Agreement that imposes or contemplates continuing obligations on you or Broke Bish Bargains will survive the termination of this Agreement.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
If you have any questions or comments about this Agreement, the Site or Broke Bish Bargains services or wish to terminate this Agreement, please contact Broke Bish Bargains by email at (email).
You also may write to Broke Bish Bargains at:
Broke Bish Bargains shall provide all notices to you at the email address or physical address that you have provided to Broke Bish Bargains. You are solely responsible for keeping that information current with Broke Bish Bargains.
You hereby agree that all agreements, notices, disclosures, and other communications that Broke Bish Bargains provides electronically to you satisfy any legal requirement that such communications be in writing.
- DISPUTE RESOLUTION
(a) Informal Dispute Resolution. Except for any controversy or claim relating to or arising from your representations, warranties, and indemnity obligations set forth in "Your Representations, Warranties and Indemnification" at Section 12 above, you and Broke Bish Bargains agree that, with respect to any matters, disputes, or claims between you and Broke Bish Bargains arising from or related to this Agreement or your relationship with Broke Bish Bargains, you and Broke Bish Bargains shall negotiate in good faith to informally resolve the problem or dispute. If the problem or dispute is not resolved satisfactorily within 60 days after you or Broke Bish Bargains receives notice from the other party in accordance with "Notices" at Section 19 above, you or Broke Bish Bargains can submit the dispute to binding arbitration in accordance with the arbitration provisions below.
(b) Arbitration. Except for any controversy or claim (i) relating to your obligation to indemnify Broke Bish Bargains, set forth in "Your Representations, Warranties and Indemnification" at Section 12 above or (ii) properly filed and pursued in small claims court on an individual basis, any claim, dispute, or controversy between you and Broke Bish Bargains arising from or relating to this Agreement or the relationships which result from this Agreement that remains unresolved after you and Broke Bish Bargains attempt to resolve them informally shall be resolved by binding arbitration brought on an individual basis as a "Common Claim" before the National Arbitration Forum (NAF) pursuant to the Code of Procedure then in effect (or such other arbitration provider as is mutually agreeable to you and Broke Bish Bargains) in a manner consistent with the terms in this Agreement. You and Broke Bish Bargains shall submit all available documents that support all claims, counterclaims, or defenses at the time of submission of the initial claim or response thereto. Formal discovery will only be permitted upon a showing of good cause and subject to the arbitrator’s approval. In the event the arbitrator requires an in-person proceeding, you agree that such proceeding shall take place in the County of New York, Borough of Manhattan. You and Broke Bish Bargains shall each pay our own arbitration and hearing fees, costs, and expenses, including but not limited to fees, costs, and expenses for attorneys, experts, discovery, and witnesses (as applicable). The arbitration shall be conducted by a single arbitrator. The arbitration may be held by telephone or by written submissions if you and Broke Bish Bargains so elect. The arbitrator shall issue a written award. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction. Information may be obtained at www.adrforum.com and claims may be filed electronically at firstname.lastname@example.org. After an arbitration is commenced, if the initiating party (the "Claimant") makes a written offer of settlement that is rejected by the other party ("Respondent"), and Claimant is the prevailing party in arbitration and recovers an amount equal to or greater than Claimant’s offer of settlement, Claimant shall recover his, her, or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and pursuing the claim in arbitration up to $25,000. After an arbitration is commenced, if Respondent makes a written offer of settlement that is rejected by Claimant, and Claimant either does not prevail in arbitration or does not recover more in the arbitration than Respondent’s offer of settlement (exclusive of attorneys’ fees or costs awarded to Claimant by the arbitrator), then Respondent shall recover his, her, or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and defending the claim in arbitration up to $25,000. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
(c) Exceptions. This agreement to arbitrate does not apply to claims filed on an individual basis in small claims court properly within that court’s jurisdiction and proceeding on an individual (non-class) basis. You and Broke Bish Bargains expressly agree that arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class-action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between you and Broke Bish Bargains. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in this Agreement, if any portion of this "Exceptions" provision is deemed invalid or unenforceable, then the entire Arbitration Provision (other than this sentence) shall not apply.
(d) Voluntary and Knowing Waiver.
BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT IN ANY REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.