ONCE YOU AGREE TO THIS AGREEMENT, IT WILL REMAIN IN EFFECT UNTIL YOU OR HANGER ESTATE CO. TERMINATES IT.
Hanger Estate Co. markets and sells home furnishings, home goods, electronics, jewelry, watches, art, and luxury fashion.
You would like Hanger Estate Co. to sell the items that we have collected from you (collectively, the "Property") on a consignment basis. This means that you, not Hanger Estate Co., will still own the Property, even after you transfer physical possession of the Property to Hanger Estate Co. After Hanger Estate Co. receives Property from you, Hanger Estate Co. 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 inventoried by Hanger Estate Co., you will be able to access your dashboard link provided by Hanger Estate Co. 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 Hanger Estate Co.’s sole discretion unless previously agreed in writing. The Accepted items will then be processed and listed as available for sale on the site, varying third party sites and one of our retail store locations.
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Hanger Estate Co. accepts the Property from you on a consignment basis only. You are responsible for all risk of loss or damage to the Property until Hanger Estate Co. takes physical possession of it.
If an item of Property is damaged, stolen, or lost while in Hanger Estate Co.'s possession, it will be treated as Sold (defined in "Title to Property" at Section 7 below) and Hanger Estate Co. 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 Hanger Estate Co. Except in New Jersey, this remedy shall constitute your sole remedy and entire recourse against Hanger Estate Co. 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.
3. PROPERTY ACCEPTANCE CONDITIONS
Upon receipt, Hanger Estate Co. 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 or acceptance into Hanger Estate Co.'s consignment inventory.
Hanger Estate Co. only Accepts Property for consignment : (a) that Hanger Estate Co. determines in its sole discretion to be in good to excellent condition; (b) that is listed in Hanger Estate Co.'s directory for items currently being accepted); (c) that Hanger Estate Co. 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, Hanger Estate Co. will donate your items to an organization of its choice (see "Unauthenticated Items" at Section 4 below and "Consignment Period and Return of Property" at Section 5 below for more information).
4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS WHERE APPLICABLE
You are responsible for ensuring the authenticity of all Property you provide to us. If Hanger Estate Co. 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 Hanger Estate Co. determines at any time that an item of Property is counterfeit, Hanger Estate Co. 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 Hanger Estate Co.
You acknowledge and understand that Hanger Estate Co. is subject to laws and regulations relating to claims that consigned items are counterfeit, have been stolen, or otherwise violate applicable law. Hanger Estate Co. takes such reports seriously and will cooperate with law enforcement in all investigations.
5. CONSIGNMENT PERIOD AND RETURN OF PROPERTY
The "Consignment Period" for each item of Property begins on the date Hanger Estate Co. accepts the item for consignment and ends 90 days thereafter, even if this Agreement has been terminated during that time by you or Hanger Estate Co. At any time during the Consignment Period, and subject to this provision, you may request in writing that Hanger Estate Co. return the item (a "Return Request"), so long as the item has not already been Sold. Once Hanger Estate Co. receives your Return Request, it will use commercially reasonable efforts to remove the item from all commerce sites (the "Sites") and from any of our retail store locations if applicable, before it is sold. It is your responsibility collect any such items at your expense.
(a) Any Return Requests are subject to a fee of $50 per item, which reflect Hanger Estate Co.'s up-front costs of storing, cataloging, and photographing the item in preparation for sale, plus (ii) applicable transport costs.
(b) If an item remains unsold at the end of the Consignment Period, Hanger Estate Co. will contact you and, at your option and your expense: (i) be available for pick up by you or (ii) Hanger Estate Co. will donate the item to an organization of Hanger Estate Co.'s choice.
If at the end of the Consignment Period The RealReal 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 disposed of by means of Hanger Estate Co.'s choice.
6. EFFORTS TO SELL; PRICE
So long as you comply with this Agreement, Hanger Estate Co. will display on the Sites and, at Hanger Estate Co.'s sole discretion display and make available for sale at one of our retail locations, and will make commercially reasonable efforts to sell the Property. You acknowledge and agree that:
(a) Hanger Estate Co. 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, Hanger Estate Co. may in its sole discretion apply an immediate 20% discount to the item, which will affect the item’s Initial Sale Price, unless Hanger Estate Co. and you have otherwise agreed in writing to a specific price at which a specific item must be sold.
(c) Hanger Estate Co. 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 Hanger Estate Co. and you have otherwise agreed in writing to a specific price at which a specific item must be sold.
7. 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 Hanger Estate Co. to a customer and not returned to Hanger Estate Co. within the period specified in Hanger Estate Co.'s then-current Return Policy; or
(b) it is lost, stolen, damaged, or destroyed while in Hanger Estate Co.'s possession.
8. 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 The RealReal 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) The RealReal 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 https://www.therealreal.com/commission-chart.
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. The RealReal 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. The RealReal 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. The RealReal 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 The RealReal, 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 The RealReal 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 The RealReal, 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 The RealReal enabling payment processing services through Stripe, you agree to provide The RealReal accurate and complete information about you and your business, and you authorize The RealReal 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 The RealReal, The RealReal 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. The RealReal 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 The RealReal.
You and Hanger Estate Co. 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.
10. NO ASSIGNMENT
You may not assign this Agreement or any interest you have in it without Hanger Estate Co.'s prior written consent. Any prohibited assignment is null and void.
11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF HANGER ESTATE CO.’S SERVICES IS AT YOUR SOLE RISK. HANGER ESTATE CO. CONSIGNMENT AND OTHER SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. HANGER ESTATE CO. 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. HANGER ESTATE CO. MAKES NO WARRANTY THAT (A) HANGER ESTATE CO.’S SERVICES WILL MEET YOUR REQUIREMENTS OR (B) HANGER ESTATE CO.’S SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM HANGER ESTATE CO. OR THROUGH OR FROM THE SITE OR HANGER ESTATE CO.’S SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
HANGER ESTATE CO. 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 HANGER ESTATE CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE HANGER ESTATE CO.'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 HANGER ESTATE CO.’S SERVICES OR THIS AGREEMENT.
IN NO EVENT WILL HANGER ESTATE CO.'S 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 HANGER ESTATE CO.'S BUSINESS, AND HANGER ESTATE CO. 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.
12. 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 Hanger Estate Co. harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs, incurred by Hanger Estate co. as a result of or arising in any way out of Hanger Estate Co.'s 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 jurisdiction of a federal or state court located in the County of Orange, 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 Hanger Estate Co., whether tort, contract, or statutory, shall be governed by the laws of California, without regard to its conflicts of laws principles.
13. AMENDMENTS TO THIS AGREEMENT
Hanger Estate Co. 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.
14. ENTIRE AGREEMENT
This Agreement sets forth the final, complete, and exclusive agreement between you and Hanger Estate Co. 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 Hanger Estate Co.
15. NO IMPLIED WAIVER
Any failure by you or Hanger Estate Co. 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.
17. 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 Hanger Estate Co. 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 Sites or Hanger Estate Co.’s services or wish to terminate this Agreement, please contact Hanger Estate Co. by email at email@example.com
You also may write to Hanger Estate Co. at:
Hanger Estate Co. LLC
23501 Ridge Route Dr., Suite B
Laguna Hills, CA 92653
Hanger Estate Co. shall provide all notices to you at the email address or physical address that you have provided to Hanger Estate Co. You are solely responsible for keeping that information current with Hanger Estate Co.
You hereby agree that all agreements, notices, disclosures, and other communications that Hanger Estate Co. provides electronically to you satisfy any legal requirement that such communications be in writing.
20. 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 Hanger Estate Co. agree that, with respect to any matters, disputes, or claims between you and Hanger Estate Co. arising from or related to this Agreement or your relationship with Hanger Estate Co., you and Hanger Estate Co. 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 Hanger Estate Co. receives notice from the other party in accordance with "Notices" at Section 19 above, you or Hanger Estate Co. 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 Hanger Estate Co., 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 The RealReal arising from or relating to this Agreement or the relationships which result from this Agreement that remains unresolved after you and The RealReal 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 The RealReal) in a manner consistent with the terms in this Agreement. You and The RealReal 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 The RealReal 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 The RealReal 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 The RealReal 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 The RealReal. 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.