CONSIGNMENT AGREEMENT

Background

  • Emier is in the business of selling pre-owned luxury handbags and accessories.
  • The Consignor owns the Goods.
  • The Consignor wishes to engage Emier to sell the Goods on consignment on the terms and conditions of this Agreement.

It is agreed:

1. Defined terms

    Meanings shall apply to capitalised terms used in this Agreement as specified in this Agreement, unless the context otherwise requires:

    • Accepted Designer means each designer as listed in Part A of Schedule 1, which may be amended from time to time by Emier in its sole discretion;
    • Authentication Charge Fee means $200 (excluding GST);
    • Authentication Standards means the authentication standards that are used by Emier to authenticate the Goods, as amended or updated by Emier from time to time;
    • Commencement Date means the date of this Agreement;
    • Commission Fee means, with respect to each Good, the amount calculated in accordance with Part B of Schedule 1;
    • Consignment Period means the period commencing on the Commencement Date and ending on the Termination Date;

    Corporations Act means the Corporations Act 2001 (Cth);

    • Emier’s Showroom means the showroom located at The Block Arcade, 282-284 Collins Street Melbourne 3000, Australia;
    • Extra Handling Fee means $200 (excluding GST);
    • Goods means pre-owned luxury handbags and accessories supplied by the Consignor to Emier under this Agreement;
    • GST means a tax, levy, duty, charge or deduction, together with any related additional tax, interest, penalty or other charge, imposed by or under a GST Law;
    • GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
    • Insolvency Event means an event that occurs in respect of a party if:
      • (a) the party is insolvent within the meaning of section 95A of the Corporations Act; or
      • (b) a controller within the meaning of Section 9 of the Corporations Act or similar officer is appointed to all or any of the party’s assets or undertakings; or
      • (c) a court is required by reason of Section 459C(2) of the Corporations Act to presume that the party is insolvent; or
      • (d) the party fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act); or
      • (e) an administrator is appointed over all or any of the party's assets or undertaking or any step preliminary to the appointment of an administrator is taken; or
      • (f) an application or order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken (other than frivolous or vexatious applications, proceedings, notices or steps) for the party's winding up or dissolution (or for the party to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them; or
      • (g) the party stops or suspends or threatens to stop or suspend payment of all or a class of its debts as and when they become due and payable,
    • or the equivalent of one or more of the circumstances set out in sub-clauses (a) to (g) above occurs in respect of a party in under the law of any jurisdiction;
    • Nominated Bank Account means the bank account details provided by the Consignor;
    • Oversized Goods means those Goods which weigh more than three kilograms, or any part of its dimensions are longer than 40 centimetres;
    • Price Drop Arrangement means the price drop agreement between the Consignor and Emier substantially in the form attached at Annexure A;
    • Proceeds means the proceeds obtained by Emier on the Consignor’s behalf upon the sale of the Goods to a third party; and
    • Second Hand Dealer Law means Second Hand Dealers and Pawnbrokers Act 1989 (Vic) and Second Hand Dealers and Pawnbrokers (General, Exemption, and Record-Keeping) Regulations 2018 (Vic).
    • Termination Date means the date which is six weeks from the Commencement Date of this Agreement, or as otherwise agreed between Emier and the Consignor.

    2. Interpretation

      Rules of interpretation shall apply to this Agreement as specified in this provision, unless the context otherwise requires:

      • (a) (headings): headings and subheadings are for convenience only and shall not affect interpretation, except for specified cross-references;
      • (b) (plurality): words denoting the singular number include the plural, and the converse also applies;
      • (c) (variants): a defined word or expression has corresponding effect in relation to its other grammatical forms;
      • (d) (parties): any reference to a party to any agreement or document includes its executors, administrators, legal personal representatives, successors and permitted assigns and substitutes by way of assignment or novation;
      • (e) (amendments): any reference to any agreement or document includes that agreement or document as amended, ratified, supplemented, novated or replaced at any time;
      • (f) (references): any reference to a clause, schedule, annexure, exhibit or attachment is a reference to a clause of, or schedule, annexure, exhibit or attachment to, this Agreement;
      • (g) (provisions): any reference to a provision of or in this Agreement, means a clause, schedule, annexure, exhibit or attachment of or to this Agreement, including each clause, subclause, paragraph and subparagraph of that clause, schedule, annexure, exhibit or attachment;
      • (h) (legislation): any reference to any legislation includes a reference to that legislation as amended, re-enacted, consolidated or replaced at any time, and includes all regulations, delegations, instruments and orders made under it;
      • (i) (inclusions): the words include, including, for example, and similar expressions are used without limitation;
      • (j) (components): any reference to any whole or collective items includes any part of that item; and
      • (k) (time): the expression at any time includes reference to past, present and future time and the performance of any action from time to time and any liability at all times during any specified period.

      3. Consignment

      • (a) All Goods provided by the Consignor to Emier under this Agreement are supplied on a consignment basis.
      • (b) Where Emier sells the Goods supplied by the Consignor on behalf of the Consignor, during the Consignment Period, Emier agrees to pay the Consignor the Proceeds (minus the Commission Fee, minus the Extra Handing Fee (if applicable) and minus the Authentication Charge Fee (if applicable)) on the terms and conditions of this Agreement.

      4. Consignment Period

        This Agreement commences on the Commencement Date and ends at the Termination Date unless otherwise extended in accordance with this Agreement.

        5. Fees

        • (a) In consideration for selling the Goods on consignment, the Consignor agrees to pay Emier the Commission Fee.
        • (b) Where the Goods are considered Oversized Goods, Emier will be entitled to charge the Consignor the Extra Handling Fee.
        • (c) The Consignor authorises Emier to deduct the Commission Fee, and where appropriate, the Extra Handling Fee, from the Proceeds owed to the Consignor at the Termination Date.

        6. Authentication and Accepted Designer of Goods

        • (a) All Goods supplied by the Consignor to Emier must be authenticated by Emier at its reasonable discretion in accordance with its Authentication Standards prior to Emier selling the Goods on behalf of the Consignor.
        • (b) Where the Goods fail to meet the Authentication Standards, the Consignor agrees to pay Emier the Authentication Charge Fee in consideration of time spent by Emier in authenticating the Goods, any required third party authentication costs, and return postage charges to the Consignor, and if applicable the Extra Handling Charge.
        • (c) Unless otherwise agreed in Emier’s sole discretion, the Goods must be produced or manufactured by an Accepted Designer.

        7. Appraisal of Goods

        • (a) The Consignor acknowledges and agrees that the Goods will be appraised and valued at Emier’s reasonable discretion, taking into consideration (but not limited to) the following factors:
          • (i) wear and tear: visible tearing, water damage and discolouration;
          • (ii) exterior marks and scratches;
          • (iii) presence of pen marks;
          • (iv) missing embellishment and/or bald spots from missing embellishment; and
          • (v) seasonality and style of the Goods.
        • (b) Emier reserves the right at its reasonable discretion to reject any Goods, in which case, the provisions of clause 6(b) will apply.

        8. Payment of Proceeds

        • (a) Where the Goods are sold during the Consignment Period, the Consignor shall be beneficially entitled to the Proceeds.
        • (b) Emier shall make payment of the Proceeds (minus the Commission Fee and Extra Handling Fee where applicable) to the Consignor’s Nominated Bank Account seven days after the Goods have been delivered to the purchaser.
        • (c) To the maximum extent permitted by law, Emier shall not be liable for lost funds where the Consignor has provided incorrect bank account details.

        9. Sale of Goods

        • (a) The Consignor:
          • (i) grants Emier the exclusive right to sell or attempt to sell the Goods during the Consignment Period; and
          • (ii) agrees not to make any arrangement with any other supplier or reseller to sell the Goods at any stage during the Consignment Period.
        • (b) Emier is in no way liable to the Consignor if it does not sell any Goods during the Consignment Period.
        • (c) Notwithstanding clause 9(b), Emier agrees to use reasonable endeavours to sell the Goods during the Consignment Period.
        • (d) When selling, or attempting to sell, the Goods, Emier will comply with the Second Hand Dealer Law, including without limitation, its obligation to hold the Goods for the time period prescribed in the Second Hand Dealer Law before selling them.

        10. Price Drop

        • (a) At any time before, during or at the end of the Consignment Period, the Consignor may elect to reduce the price of Goods (Price Drop).
        • (b) Where the Consignor elects a Price Drop, the parties will enter into a Price Drop Arrangement in accordance with the provisions of Annexure A.
        • (c) During the Price Drop Arrangement, all other terms and conditions of this Agreement (subject to any inconsistencies with any provision in Annexure A) will apply.
        • (d) If the Goods sell during or after a Price Drop Arrangement, the Consignor will still be required to pay the full Commission Fee to Emier.

        11. Title and risk

        • (a) Title in the Goods supplied by Consignor to Emier shall not pass to Emier at any time, untill it is directly or indirectly sold By Emier.
        • (b) All risk in Goods consigned pass to Emier upon delivery of the Goods by the Consignor to Emier’s Showroom, whether by post or where the Consignor delivers the Goods to Emier’s Showroom.
        • (c) All risk in the Goods will be passed onto the Consignor where Emier returns or the Consignor collects any unsold Goods at the end of the Consignment Period in accordance with clause 15.
        • (d) Notwithstanding cause 11(b), Emier will not be responsible for any Goods which are:
          • (i) damaged or defected in any way; or
          • (ii) lost or stolen;

          prior to their delivery to Emier’s Showroom (Lost or Damaged Goods).

          • (e) Where the Goods become Lost or Damaged Goods, Emier may elect in its sole discretion to terminate this Agreement immediately.
          • (f) The Consignor is responsible for keeping the Goods insured against all risks for goods of that kind any time the risk in the goods sits with the Consignor in accordance with clause 11.

          12. Indemnity and warranty

          • (a) The Consignor warrants to Emier that the Goods are genuine, authentic and that they have full legal, beneficial and unencumbered title to the Goods.
          • (b) The Consignor indemnifies and must keep indemnified Emier against all and any liabilities and losses that Emier may suffer or incur by reason of the Goods not being genuine, authentic or stolen or where the Consignor does not have full legal, beneficial and unencumbered title to the Goods.

          13. Early Termination

          The Consignor may terminate this Agreement without cause at any time during the Consignment Period by:

          • (a) providing written notice to Emier; and.
          • (b) paying the Commission Fee to Emier.

          14. End of Consignment Period

          • (a) Where the Goods fail to sell by the end of the Consignment Period and the parties otherwise do not agree to a Price Drop Arrangement in accordance with clause 10, the Goods must be either returned or collected in accordance with the provisions of clause 15 and no Commission Fee will be payable.
          • (b) This Agreement will terminate once the Goods have either been collected or received by the Consignor and the Consignor has made all payments required under this Agreement to Emier.
          • (c) The parties may otherwise agree to extend the Consignment Period by a further 6 weeks or such other period of time by written agreement.
          • (d) This Agreement may otherwise only be terminated where either party:
            • (i) suffers an Insolvency Event; or
            • (ii) breaches a material term of this Agreement and either the breach is not capable of being cured or otherwise if capable of being cured, the party in breach fails to cure the breach within 20 Business Days of being notified in writing of the breach by the non-breaching party.
          • (e) In the event that Emier terminates the Agreement in accordance with clause 14(d) above, the Consigner is required to pay the Commission Fee to Emier within 14 days of receiving notice of termination.

          15. Return of Goods

          • (a) Emier may, at its discretion and at no cost to itself, return or require the collection by the Consignor of the Goods at the Consignor’s sole expense.
          • (b) Where the Consignor is to collect the Goods, it must organise the collection of the Goods no later than 10 days of the Consignor receiving notice from Emier that the Goods require return or collection. Collection will be free of charge and at a time as agreed with Emier.
          • (c) Where the Goods are to be returned to the Consignor, the Consignor must follow the reasonable direction of Emier when organising the return, including payment.

          16. Notices

          • (a) Any notice to or by a party under this Agreement shall be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender, including any director, secretary or person notified in that capacity by that corporate party, or under the seal of or any power of attorney conferred by the sender.
          • (b) Any notice may be served by delivery in person or by post or transmission by email to the address or email address of the recipient and shall be effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of an email transmittal confirmation report.

          17. Governing law

          • (a) This Agreement shall be governed by and construed under the law of the State of Victoria.
          • (b) Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction in the State of Victoria.
          • (c) Each party by execution of this Agreement irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.

          18. General provision

          • (a) Any amendment of this Agreement shall have no force or effect, unless effected by a document executed by the parties.
          • (b) This Agreement shall confer rights only upon a person expressed to be a party, and not upon any other person.
          • (c) This Agreement:
            • (i) expresses and incorporates the entire agreement between the parties in relation to its subject-matter, and all the terms of that agreement; and
            • (ii) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject-matter or any term of that agreement.
          • (d) Any provision of this Agreement which is invalid in any jurisdiction shall be invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
          • (e) This Agreement may be executed in any number of counterparts, all of which taken together shall be deemed to constitute one and the same document.
          • (f) Nothing in this Agreement constitutes the relationship of partnership or employer and employee between Emier and Consignor or between Emier and its personnel and Consignor and its personnel and it is the express intention of the parties that any such relationships are denied. 

          Schedule 1– Consignment Terms

          Part A - Accepted Designers

          • Chanel
          • Celine
          • Saint Laurent
          • Gucci
          • Hermès
          • Cartier
          • Balenciaga
          • Goyard
          • Bottega Veneta
          • Rolex
          • Christian Dior
          • Louis Vuitton
          • Fendi
          • Chloé
          • Van Cleef & Arpels
          • Tiffany 

          Part B – Commission Fee

          Category

           Items Value

          Commission Rate

          Bag & Jewellery & Accessory (Unused with Full set Inclusion)

          AUD 0 - AUD 1,500

          AUD 220 Flat Rate

          Bag & Jewellery & Accessory (Unused with Full set Inclusion)

          AUD 1,501 - AUD 12,000

          12% + AUD 50 

          Bag & Jewellery & Accessory (Unused with Full set Inclusion)

          OVER AUD 12,000

          10% + AUD 250 

          Bag & Jewellery & Accessory (Used or without Full set Inclusion)

          AUD 0 - AUD 2,550

          AUD 300 Flat Rate

          Bag & Jewellery & Accessory (Used or without Full set Inclusion)

          AUD 2,551 - AUD 12,000

          12% + AUD 50

          Bag & Jewellery & Accessory (Used or without Full set Inclusion)

          OVER AUD 12,000

          10% + AUD 250 

          Watches

          Each Item

          18% 

          Fashion-Ready to Wear

          AUD 0 - AUD 1250

          AUD 250 

          Fashion-Ready to Wear

          OVER AUD 1250

          20%


          *Item weights more than 3kg or has any part of its dimension (Length, Width, or Height,) longer than 40cm requires $200 extra handling fee.