These terms and conditions create a contract between You and The TackHack (“TTH”). Please read this agreement carefully. We require our Sellers to agree to this document if they wish to consign items through The TackHack. This agreement will remain in effect until you or The TackHack terminates it.
TTHmarkets and sells equestrian tack, apparel and accessories. You would like TTH to sell items that you have sent to us or that we have collected from you (“the Property”) on a consignment basis. This means that you, and not TTH, will still own the Property after you transfer possession to TTH. After TTH receives your property, TTH will send an email notification confirming the items of Property received and the determined list price. The list price will be determined at TTH’s sole discretion unless previously agreed to in writing. Items are then considered “Accepted” and will be made available for sale on the site once they are photographed.
Delivery of Property, Risk of Loss, and Insurance
You are responsible for all risk of loss or damage to the Property until TTH takes physical possession of it. If you use TTH’s approved, pre-paid shipping label and approved method of shipment to ship your Property, then TTH will assume the risk of loss or damage to the Property upon shipment.
Property is considered “shipped” if it is (a) shipped using a TTH shipping label in approved packaging; or (b) if the Property is picked up in person and transported by TTH personnel.
If an item of property is damaged, lost or stolen while in TTH’s possession, the item will be considered “sold” and TTH will pay you a commission (defined in the “Commissions and Payments” section below) on that item. The commission will be based on the item’s estimated Net Selling Price (defined below), which will be determined solely by TTH. Except in New Jersey, this remedy shall constitute your sole remedy and entire recourse against TTH for property that is damaged, lost or stolen and is in lieu of any other remedy otherwise available as a matter of law or equity.
Property Acceptance Conditions
Upon receipt, TTH will evaluate each item of Property to determine, in its sole discretion, its authenticity, quality and value. The item’s condition will affect its valuation. TTH only accepts items that (a) TTH determines in its sole discretion to be in excellent to like-new condition; (b) is listed in TTH’s Accepted Items and Brand List at the time of evaluation; (c) TTH 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 either be (a) returned to the Seller and his/her own expense, or (b) at your request, donated to a designated equine charity of TTH’s choosing.
Title to Property
You will continue to own an have title to each item of Property until that item is Sold. An item will be considered sold when:
It is sold by TTH to a customer and not returned to TTH within the period specified in TTH’s then-current Return Policy; or
it is lost, stolen, damaged or destroyed while in TTH’s possession.
Unauthenticated, Counterfeit or Stolen Items
You are responsible for ensuring the authenticity and providence of all Property you provide to us. If TTH cannot confirm the authenticity or providence of an item of Property that you have provided, TTH shall have the right in its sole discretion to refuse to accept the item. If TTH makes a determination that an item of property is counterfeit or stolen, TTH shall notify you that it has made such a determination and you will have an opportunity to provide proof of purchase or proof of authenticity acceptable to TTH. Items that TTH determines to be counterfeit will be destroyed. You acknowledge and understand that TTH is subject to laws and regulations relating to claims that consigned items are counterfeit, stolen, or otherwise violate applicable law. TTH 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 TTH accepts an item for consignment and ends 365 days thereafter.
At any time during the Consignment Period, and subject to this provision, you may request in writing that TTH return an item(s) to you (a “Return Request”), so long as the time has not already been sold. Once TTH receives a Return Request, it will remove the item from the Site.
If the Return Request is made within 90 daysof an item being Accepted by TTH, you will be charged the shipping cost of returning the item as well as a $15 per item fee, which reflects the cost to photograph, catalog, post and promote an item on the Site. These costs will be deducted from your pending Commissions. If you do not have sufficient pending Commissions, TTH shall have no obligation to return the item to you unless and until you pay TTH these costs.
If a Return Request is made more than 90 daysafter an item’s acceptance, the item will be returned within 30 days at TTH’s expense and no additional fees will be charged.
If an item remains unsold at the end of the 365 day Commission Period, TTH will contact you and, at your option and at TTH’s expense, either (a) return the item to you or (b) donate the item to a charity of TTH’s choosing. If at the end of the Commission Period TTH is unable to contact you at the email or physical address that we have on file for you, the item will be donated to a charity of TTH’s choosing.
Efforts to Sell & Pricing
So long as you comply with this Agreement, TTH will display on the Side and make commercially reasonable efforts to sell your Property. You acknowledge and agree that:
TTH in its sole discretion (unless otherwise agreed to in writing) will determine the initial selling price for each item of Property based on TTH’s evaluation of that item together with TTH’s determination of the current market price for that item;
In order to market and promote the sale of each item, TTH may apply or 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.
Commission & Payment
TTH Commission rates are tied to a Seller’s “Net Sales” in a given Consignment Term. The Commission Rate that will apply to the sale of your Property within a Commission Term is based on your Net Sales within your previous Commission Term. A Seller has the opportunity to qualify for a higher Commission Rate during his or her nextConsignment Term based on Net Sales volume.
TTH uses a bracketed commission table to calculate a Seller’s Commission Rate. TTH’s most recent Commission Rate table can be found here.
TTH may also, from time to time and in its sole discretion, 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. TTH may make other changes to its Commission structure and the Commission Rates upon at least fourteen (14) days’ notice to you as described in the Amendments section below.
The following is a more detailed breakdown of how TTH’s Commission Rates work:
“Commission Term” means:
o (1) for the first Commission Term, the period that begins on the date your first item of Property is accepted by TTH and ends at the end of the month that is one year after such date.
o (2) The subsequentCommission Term is the one-year period that begins on the following day. For example, if your first item of Property is Accepted by TTH on October 1, 2018, your first Commission Term begins on October 5, 2018 and each subsequent Commission Term will begin on November 1 of the following year.
“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 TTH from the sale of all of your property during a given Commission Term, less applicable discounts and promotions and excluding taxes and shipping. For example, if you had three items of Property that sold in a Commission Term whose Net Selling Prices were $5,000, $500, and $50, your Net Sales for that Commission Term would be $5,550.
Commission Rate Resets: After the end of the first Commission Term (Term 1) and after the end of each subsequent Commission Term, your starting Commission Rate for the next Term will be set at the highest Commission Rate you achieved during the preceding Commission Term. For example, if you achieved $11,000 in Net Sales during Term 1, and the then-current Commission Rate applying to Net Sales of $11,000 is 75%, then your starting Commission Rate during Term 2 will be 75% on all items that sell for over $200.
Calculation of Commissions: TTH 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 earn will be the sole source of compensation you will receive under this agreement.
Payments: Commission fees will be processed on a monthly basis for Sales that occurred during the previous month. Payments will be made to you by physical check, or, if you elect an alternative method acceptable to TTH, by such payment method. The timing, processing and delivering of the Commission payments will vary by payment method, but will typically take at least two business days.
Disputes: If there is a dispute between you and TTH, TTH shall have no obligation to pay any Commissions or other amounts due to you, including amounts unrelated to the dispute, unless and until the dispute is resolved. TTH 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 TTH.
You and TTH may terminate this Agreement in writing at any time, for any reason. Termination will be effective on the date notice is given, and costs listed under the “Return of Property” section will apply.
You may not assign this Agreement or any interest you have in it without TTH’s prior written consent.
Disclaimer of Warranties & Limitation of Liability
You expressly understand and agree that:
Your use of TTH’s services are ate your sole risk. TTH’s consignment and other services are provided on an “as is” and “as available” basis. TTH 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 use or purpose, and non-infringement.
TTH makes no warranty that (a) TTH’s services will meet your requirements or (b) that TTH’s services will be uninterrupted, timely, secure, or error-free. No advice or information, whether oral or written, that you receive from TTH or through or from the site or TTH’s services shall create any warranty not expressly stated in these terms.
TTH 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 TTH has been advised of the possibility of such damages) resulting from (a) the use or inability to use TTH’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 TTH’s services or this agreement. In no event will TTH’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 fundamental parts of the basis of TTH’s business, and TTH 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 & 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 included counterfeit or stolen goods; (d) and 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 TTH harmless from all damages, suits, litigation, awards, and costs, including but not limited to reasonable attorneys’ fees and costs, incurred by TTH as a result of or arising in any way out of TTH’s display or sale of the Property, including but not limited to, civil or criminal suits over authenticity or ownership of Property, civil suits related to injury allegedly caused by the Property, legality of sales, or copyright or trademark infringement. You expressly consent to jurisdiction of a federal and state court located in the County of Grand Traverse, City of Traverse City with respect to any matter arising under this Section. This Agreement, or breach thereof, and all claims of any kind relating to or arising out of this Agreement and the relationship between you and TTH, whether tort, contract, or statutory, shall be governed by the laws of Michigan, without regard to its conflict of laws principles.
Amendments to This Agreement
TTH may update or change any of the terms and conditions of this Agreement at any time in its sole discretion upon 14 days’ notice as set forth above and by notifying you in accordance with the Notices section below. Revised terms will not apply to the items 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 before the effective date of the revised terms.
This Agreement sets forth the final, complete and exclusive agreement between you and TTH and terminates and supersedes all prior understandings or agreements on any such subject matter. Except as set forth in the “Commissions & Payments” and “Amendments” sections above, this Agreement may be modified only by a writing signed by you and TTH.
No Implied Waiver
Any failure by you or TTH to enforce any provision of this Agreement shall not constitute a waiver of such provision or 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.
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 TTH will survive the termination of this Agreement.
If you have any questions or comments about this Agreement, the Site or TTH’s services, or if you wish to terminate this Agreement, please contact TTH by email at email@example.com.
TTH shall provide all notices to you at the email or physical address that you have provided to TTH. You are solely responsible for keeping that contact information current. You agree that all agreements, notices, disclosures and other communications that TTH provides electronically to you shall satisfy any legal requirement that such communications be in writing.
Informal: You agree to negotiate with TTH in good faith regarding any matter, dispute, or claim between you and TTH arising from or related to this Agreement or your relationship with TTH. If the problem is not resolved satisfactorily within 60 days after you or TTH receives notice in accordance with the Notice section above, you or TTH can submit the dispute to binding arbitration in accordance to the arbitration provisions below.
Arbitration: Excluding any controversy or claim (i) relating to your obligation to indemnify TTH, or (ii) properly filed and pursued in small claims court on an individual basis, any claim, dispute or controversy between you and TTH arising from or related to this Agreement or the relationships which result from this Agreement that remains unresolved after you and TTH 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 in a manner consistent with the terms of this Agreement.
You and TTH shall submit all relevant documents at the time of submission of the initial claim or response thereto. Formal discovery will only be permitted on a showing of good cause and subject to the arbiter’s approval. In the event the arbiter requires an in-person proceeding, you agree that such proceeding shall take place in the County of Grand Traverse, City of Traverse City.
You and TTH shall each pay its own arbitration and hearing fees, costs and expenses, including all fees, costs and expenses related to attorneys, experts, discovery and witnesses (if applicable).
The arbitration shall be conducted by a single arbiter. The arbitration may be held via telephone or by written submissions if you and TTH so elect. The arbitrator shall issue a written award. Any award of the arbitrator may be entered as judgment in any court having jurisdiction. Information may be obtained at www.adforum.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, and the Claimant is the prevailing party in arbitration and recovers an amount equal to or greater than the Claimant’s offer of settlement, Claimant shall recover his, her or its reasonable attorneys’ fees and expenses incurred as a result of the claim up to $25,000. After an arbitration is commenced, if Respondent makes a written offer of settlement that is rejected by the Claimant, and Claimant either does not prevail in arbitration or does not recover more than the Respondent’s written settlement offer (exclusive of attorneys’ fees or costs awarded to the Claimant by the arbitrator), then Respondent shall recover his, her or its reasonable attorneys’ fees and expenses incurred in defending the claim up to $25,000. This Agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
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 TTH 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. 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.
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. You expressly understand that 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.