PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT LIMIT YOUR RIGHT TO HAVE A DISPUTE HEARD IN COURT. PLEASE READ THIS AGREEMENT AND THE ARBITRATION PROVISION AND CLASS ACTION WAIVER BELOW CAREFULLY.
These terms and conditions create a contract between you and Dora Maar (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 Dora Maar. ONCE YOU AGREE TO THIS AGREEMENT, IT WILL REMAIN IN EFFECT UNTIL YOU OR DORA MAAR TERMINATES IT.
Dora Maar’s Terms of Service (“TOS”) are also included in this Agreement and apply to your and Dora Maar’s activities under this Agreement.
Dora Maar markets and sells luxury designer items and jewelry. You would like Dora Maar 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 Dora Maar, will still own the Property even after you transfer physical possession of the Property to Dora Maar. After Dora Maar receives or picks up Property from you, Dora Maar 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 Dora Maar’s authentication team, Dora Maar will notify you regarding which of your items that have been accepted for consignment (the items are then "Accepted") and the initial sale price (the "Initial Sale Price") assigned to those Accepted items. Please note that all prices are determined at Dora Maar’s sole discretion unless previously agreed in writing. The Accepted items will then be processed and listed as available for sale on Dora Maar’s website and related social media platforms (the “Site”).
- DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Dora Maar accepts the Property from you on a consignment basis only. You are responsible for all risk of loss or damage to the Property until Dora Maar takes physical possession of it; however, if you use Dora Maar’s approved, pre-paid shipping label and approved method of shipment to ship your Property, Dora Maar 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 Dora Maar approved, pre-paid shipping label.
If an item of Property is damaged, stolen, or lost while in Dora Maar’s possession, it will be treated as Sold (defined in "Title to Property" at Section 7 below) and Dora Maar 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 Dora Maar. Except in New Jersey, this remedy shall constitute your sole remedy and entire recourse against Dora Maar 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, Dora Maar will evaluate each item of Property to determine, in its sole discretion, its authenticity, quality, and current value. The item’s condition, brand, and current value will affect the valuation.
Dora Maar only Accepts Property for consignment that Dora Maar determines in its sole discretion (a) is in very good to excellent condition as per Dora Maar's condition standards (b) is one of the brands in its brand matrix (c) is authentic and (d) for which the representations and warranties you make in the "Your Representations, Warranties, and Indemnification" at Section 12 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, Dora Maar 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).
Accepted Property will be displayed on the Site once it has been evaluated and an Initial Sale Price is set. See Efforts to Sell; Price at Section 6 for more information.
- UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
You are responsible for ensuring the authenticity of all Property you provide to us. If Dora Maar 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 Dora Maar at any time that an item of Property is counterfeit, Dora Maar 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 Dora Maar. You acknowledge and agree that any item Dora Maar finally determines to be counterfeit will not be returned to you and will be destroyed.
You acknowledge and understand that Dora Maar is subject to laws and regulations relating to claims that consigned items are counterfeit, have been stolen, or otherwise violate applicable law. Dora Maar takes such reports seriously and will cooperate with law enforcement in all investigations.
- CONSIGNMENT PERIOD & RETURN OF PROPERTY
The "Consignment Period" for each item of Property begins on the date Dora Maar Accepts the item for consignment and ends 365 days thereafter, even if this Agreement has been terminated during that time by you or Dora Maar. At any time during the Consignment Period, and subject to this provision, you may request in writing that Dora Maar return the item (a "Return Request"), so long as the item has not already been Sold. Once Dora Maar receives your Return Request, it will use commercially reasonable efforts to remove the item from the Site before it is sold. It is your responsibility to ensure that Dora Maar has your most current contact information and mailing address.
- If the Return Request is made 120 days or less from the date Dora Maar Accepted the item of Property, Dora Maar will return the item within 30 days. Additionally, Dora Maar will charge you (i) a fee of $20 per item, which reflects Dora Maar’s upfront costs of storing, cataloging, and photographing the item in preparation for sale, plus (ii) applicable shipping costs. Such costs shall be deducted from your pending Commissions. If you do not have enough pending Commissions available to cover the costs of return, Dora Maar shall have no obligation to return the item to you unless and until you pay Dora Maar the shipping costs and fee prior to the return shipment.
- If the Return Request is made more than 120 days after Acceptance, the item will be returned within 30 days at Dora Maar’s expense and no fees will be added.
- If an item remains unsold at the end of the Consignment Period, Dora Maar will contact you and, at your option and Dora Maar’s expense: (i) return the item to you or (ii) donate the item to a charity of Dora Maar’s choice.
- If at the end of the Consignment Period Dora Maar 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 19below, the item may be donated to a charity of Dora Maar’s choice.
- EFFORTS TO SELL; PRICE
So long as you comply with this Agreement, Dora Maar will display on the Site and will make commercially reasonable efforts to sell the Accepted Property. You acknowledge and agree that:
- Dora Maar in its sole discretion will determine the Initial Selling Price for each item of Property based on its evaluation of that item, together with its determination of the current market price for that item;
- Dora Maar 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 Dora Maar 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:
- it is sold by Dora Maar to a customer and not returned to Dora Maar within the period specified in Dora Maar’s then-current Return Policy; or
- it is lost, stolen, damaged, or destroyed while in Dora Maar’s possession.
- COMMISSIONS & PAYMENT
- "Net Selling Price" means the price at which an item of Property is Sold, less applicable discounts and promotions and excluding taxes and shipping.
- Dora Maar will pay you a Commission (“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 (“Commission Rate”). The Commissions you receive for Sales of your Property are the sole compensation you will receive under this Agreement. The Commission Rate structure will be agreed upon, in writing, with each consignor before their items are listed for sale on site.
- Dora Maar 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
- Dora Maar 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 Dora Maar, 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.
- If there is a dispute between you and Dora Maar, Dora Maar 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. Dora Maar 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 Dora Maar.
You and Dora Maar 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 terms and 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 Dora Maar’s 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 DORA MAAR’S SERVICES IS AT YOUR SOLE RISK. DORA MAAR’S CONSIGNMENT AND OTHER SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DORA MAAR 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. DORA MAAR MAKES NO WARRANTY THAT (A) DORA MAAR’S SERVICES WILL MEET YOUR REQUIREMENTS OR (B) DORA MAAR’S SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM DORA MAAR OR THROUGH OR FROM THE SITE OR DORA MAAR’S SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
DORA MAAR 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 including without limitation damages for loss of profits, revenues, contracts, business, anticipated savings, goodwill, use, reputation, data, or other intangible losses (even if Dora Maar has been advised of the possibility of such damages) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE DORA MAAR’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 DORA MAAR’S SERVICES OR THIS AGREEMENT.
IN NO EVENT WILL DORA MAAR’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 DORA MAAR’S BUSINESS, AND DORA MAAR 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 Dora Maar harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs, incurred by Dora Maar as a result of or arising in any way out of Dora Maar’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 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 Dora Maar, 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
Dora Maar 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 Dora Maar 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 Dora Maar.
- NO IMPLIED WAIVER
Any failure by you or Dora Maar 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 The Dora Maar 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 Dora Maar’s services, or wish to terminate this Agreement, please contact Dora Maar by email at firstname.lastname@example.org
You also may write to Dora Maar at:
Attn: Legal Department
124 East 4th Street, #2
New York, NY 10003
Dora Maar shall provide all notices to you at the email address or physical address that you have provided to Dora Maar. You are solely responsible for keeping that information current with Dora Maar.
You hereby agree that all agreements, notices, disclosures, and other communications that Dora Maar provides electronically to you satisfy any legal requirement that such communications be in writing.
- 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 Dora Maar agree that, with respect to any matters, disputes, or claims between you and Dora Maar arising from or related to this Agreement or your relationship with Dora Maar, you and Dora Maar 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 Dora Maar receives notice from the other party in accordance with "Notices" at Section 19 above, you or Dora Maar can submit the dispute to binding arbitration in accordance with the arbitration provisions below, or you may assert claims in small claims court if your claims qualify. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights in the event that informal resolution is not reached as described above.
- MANDATORY ARBITRATION AGREEMENT & CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. 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.
Any claim, dispute, or controversy between you and Dora Maar arising from or relating to this Agreement or the relationships which result from this Agreement that remain unresolved by the mechanisms described in Section 21, Informal Dispute Resolution will be resolved by binding arbitration, rather than in court. 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. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights in the event that informal resolution is not reached as described above.
The arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and all provisions of this Agreement, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator, unless the claim amount exceeds $1,000,000, in which case the dispute shall be heard by a panel of three arbitrators. Within 15 days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. The place of arbitration shall be in the Borough of Manhattan, New York, New York. The arbitration shall be governed by the laws of the State of New York. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. §§ 1–16.
You and Dora Maar 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)’s approval. In making determinations regarding the scope of exchange of electronic information, the arbitrator(s) and the parties agree to be guided by The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production.
The arbitration may be held by telephone or by written submissions if you and Dora Maar so elect. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The arbitrator shall issue a written award. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction.
The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section. Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. 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.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
You and Dora Maar 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 Dora Maar. 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. If part of this provision is unenforceable, the remainder remains in effect.