THIS AGREEMENT WILL REMAIN IN EFFECT UNTIL YOU OR THE TACKHACK TERMINATES IT.
The TackHack markets and sells equestrian tack, apparel, and accessories. You would like The TackHack 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 The TackHack, will still own the Property after you transfer its physical possession to The TackHack. After The TackHack receives or picks up Property from you, The TackHack will send you an email or provide written documents in accordance with the "Notice" Section below confirming the items of Property received and the determined list price. The list price will be determined at The TackHack’s sole discretion unless previously agreed to in writing. The items are then considered "Accepted.” Accepted Items will then be made available for sale on the site as soon as they are photographed.
- DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
You are responsible for all risk of loss or damage to the Property until The TackHack takes physical possession of it; however, if you use The TackHack’s approved, pre-paid shipping label and approved method of shipment to ship your Property, The TackHack 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 TackHack approved, pre-paid shipping label OR items of Property that are picked up in person and transported by The TackHack personnel. If an item of Property is damaged, stolen, or lost while in The TackHack’s possession, it will be treated as “sold” and The TackHack will pay you a Commission (defined in the "Commissions and Payment" Section below) on that item. The Commission will be based on the damaged, stolen, or lost item’s estimated Net Selling Price (defined in the "Commissions and Payment" Section below), which will be determined solely by The TackHack. Except in New Jersey, this remedy shall constitute your sole remedy and entire recourse against The TackHack 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, The TackHack 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. The TackHack only accepts items that: (a) The TackHack determines in its sole discretion to be in excellent to like-new condition; (b) is listed in The TackHack’s current Accepted Items and Brand list at the time of evaluation (see separate document in your clean-out kit for items currently being accepted); (c) The TackHack 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) at your request, donated to a designated equine charity of The TackHack’s choice.
- UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
You are responsible for ensuring the authenticity of all Property you provide to us. If The TackHack cannot confirm the authenticity or providence of any item of Property you have provided, it shall have the right in its sole discretion to refuse to accept the item. If The TackHack determines at any time that an item of Property is counterfeit or stolen, The TackHack 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 The TackHack. Items that The TackHack determines to be counterfeit will not be returned to you and will be destroyed. You acknowledge and understand that The TackHack is subject to laws and regulations relating to claims that consigned items are counterfeit, have been stolen, or otherwise violate applicable law. The TackHack 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 The TackHack accepts the 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 The TackHack return the item(s) to you (a "Return Request"), so long as the item has not already been Sold. Once The TackHack receives your Return Request, it will use commercially reasonable efforts to remove the item from thetackhack.com (the "Site") before it is sold. It is your responsibility to ensure that The TackHack has your most current contact information and mailing address.
- Individual Sellers may request that their item(s) be returned at any time. However, if the return request is made within 90 days of the items being accepted, The TackHack will charge you a $15 per item plus shipping to return the item, which fees reflect The TackHack’s up-front costs of storing, cataloging, and photographing the item in preparation for sale as well as returning the item. If you do not have enough pending Commissions available to cover the costs of return, The TackHack shall have no obligation to return the item to you unless and until you pay The TackHack the costs of returning the item prior to its shipment. Return requests made after the 90-day post-acceptance period will be returned free of charge, with the exception of saddles. The TackHack shall have no obligation to return saddles unless and until the Seller pays The TackHack the costs of returning the item prior to its shipment.
(c) If an item remains unsold at the end of the 365-day Commission Period, The TackHack will contact you and, at your option, The TackHack will either: (i) continue to market the item under the terms of this agreement; (ii) return the item to you at your expense, or (iii) donate the item to a charity of TTH’s choice. If at the end of the Commission Period TTH is unable to contact you at the email or physical address it has on file for you in accordance with the "Notice" provision below, the item will be donated to a charity of The TTH’s choice.
- EFFORTS TO SELL; PRICE
So long as you comply with this Agreement, The TackHack will display on the Site and make commercially reasonable efforts to sell the Property. You acknowledge and agree that:
(a) The TackHack in its sole discretion (unless otherwise agreed to in writing) 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, The TackHack 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.
- 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 The TackHack to a customer and not returned to The TackHack within the period specified in The TackHacks then-current Return Policy. (Note that the current Return Policy will be posted on The TackHack’s website once it is launched. In the pre-launch interim, The TackHack offers a one-week return period for saddles. The return period for all other items is two weeks.); or
(b) it is lost, stolen, damaged, or destroyed while in The TackHack’s possession.
- COMMISSIONS AND PAYMENT
- “Net Sales” means the total amount received by The TackHack from the sale of all of your Property to date, less applicable discounts and promotions and excluding shipping and taxes.
- The “Commission Rates” that are used to calculate the commission (“Commission”) you receive for each item of Property that is Sold are found at https://www.thetackhack.com/consign. The Commission Rate that will apply to Sales of your Property within a Commission Term is based on your cumulative Net Sales. Over time, your cumulative net sales may result in you earning a higher Commission Rate. The TackHack may also, from time to time and in its sole discretion, for promotional reasons and without notices, 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. The TackHack 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 to This Agreement” section below.
- Commission Rate Reset: The TackHack tracks your sales over time. You will receive notice via email when your cumulative Net Sales result in change in your Commission Bracket.
- Calculation of Commissions. The TackHack 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.
- Payments. Commission fees will be processed on a monthly basis 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, or, if you elect another payment method acceptable to The TackHack, 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.
- Disputes. If there is a dispute between you and The TackHack, The TackHack 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 TackHack 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 TackHack.
*The following Commission Rate Chart is effective as of July 1, 2019. The most current Commission Rate Chart can be found at https://www.thetackhack.com/consign
Seller Commission Rate
Items with Net Selling Price <$200
Minimum 70%, then according to Seller’s Sales Bracket
Annual Net Sales <$1,500
Annual Net Sales $1,501 - $5,000
Annual Net Sales $5,001+
You and The TackHack 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" will apply.
- NO ASSIGNMENT
You may not assign this Agreement or any interest you have in it without The TackHack’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 THE TACKHACK’S SERVICES IS AT YOUR SOLE RISK. THE TACKHACK’s CONSIGNMENT AND OTHER SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE TACKHACK 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 NON-INFRINGEMENT.
THE TACKHACK MAKES NO WARRANTY THAT (A) THE TACKHACK’S SERVICES WILL MEET YOUR REQUIREMENTS OR (B) THE TACKHACK’s SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM THE TACKHACK OR THROUGH OR FROM THE SITE OR THE TACKHACK’S SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
THE TACKHACK 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 TACKHACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE TACKHACK’S SERVICES OR THE SITE; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (C) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT PROPERTY; OR (D) ANY OTHER MATTER RELATING TO THE TACKHACK’S SERVICES OR THIS AGREEMENT. IN NO EVENT WILL THE TACKHACK'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 THE TACKHACK'S BUSINESS, AND THE TACKHACK 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 The TackHack harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs, incurred by The TackHack as a result of or arising in any way out of The Tackhack'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 Grand Traverse, City of Traverse with respect to any matter arising under this Section. 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 The TackHack, whether tort, contract, or statutory, shall be governed by the laws of Michigan, without regard to its conflicts of laws principles.
- AMENDMENTS TO THIS AGREEMENT
The TackHack 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 in Section 8 and by notifying you in accordance with the Notices section, below. Revised terms will not apply to 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 in accordance with the "Termination" Section above before the effective date of the revised terms.
- ENTIRE AGREEMENT
This Agreement sets forth the final, complete, and exclusive agreement between you and The TackHack regarding the subject matter hereof, and terminates and supersedes all prior understandings or agreements on such subject matter. Except as set forth in the "Commissions and Payment" and "Amendments to this Agreement" Sections above, this Agreement may be modified only by a writing signed by you and The TackHack.
- NO IMPLIED WAIVER
Any failure by you or The TackHack 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 TackHack 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 The TackHack’s services or wish to terminate this Agreement, please contact The TackHack by email at firstname.lastname@example.org.
The TackHack shall provide all notices to you at the email address or physical address that you have provided to The TackHack. You are solely responsible for keeping that information current. You hereby that all agreements, notices, disclosures, and other communications that The TackHack 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 the "Your Representations, Warranties and Indemnification" Section above, you and The TackHack agree that, with respect to any matters, disputes, or claims between you and The TackHack arising from or related to this Agreement or your relationship with The TackHack, you and The TackHack 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 The TackHack receives notice from the other party in accordance with the "Notices" Section above, you or The TackHack 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 The TackHack, set forth in "Your Representations, Warranties and Indemnification" Section above or (ii) properly filed and pursued in small claims court on an individual basis, any claim, dispute, or controversy between you and The TackHack arising from or relating to this Agreement or the relationships which result from this Agreement that remains unresolved after you and The TackHack 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 TackHack) in a manner consistent with the terms in this Agreement.
You and The TackHack 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 Grand Traverse, City of Traverse.
You and The TackHack shall each pay your 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 TackHack 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 email@example.com.
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 TackHack 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 TackHack. 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.