Fathom Watches Limited Consignment Terms and Conditions
1. Definitions and Interpretation
In these terms and conditions (the "Terms and Conditions") the following words and expressions have the following meanings:
"Agreement" means, together, the Consignment Form and these Terms and Conditions;
"business day" means a day in London, excluding Saturdays and Sundays, on which commercial banks are open for business;
"Company" means Fathom Watches Limited, a company incorporated and registered in England and Wales with company number 14284790;
"Consignment Form" means the relevant consignment form provided by the Company and completed and signed by the Customer, which refers to these Terms and Conditions;
"Consignment Items" means the item(s) described as such in the Consignment Form;
"Customer" means the individual, company or other entity identified as the customer in the Consignment Form; and
"in writing" includes all electronic written communication, including (but not exclusively) email, text message, WhatsApp messenger, Instagram and any other electronic messenger services.
2. Consignment Items
The Agreement constitutes a legal agreement between the Customer and the Company. By signing the Consignment Form, the Customer is deemed to accept and be bound by these Terms and Conditions in their entirety. If the Customer does not agree to (or cannot comply with) these Terms and Conditions in their entirety, it should not sign the Consignment Form or send any Consignment Items to the Company.
The Agreement relates to the Consignment Items, whereby the Customer owns the right and title to each Consignment Item in its entirety and the Company agrees to take possession of the Consignment Items with the intention of selling them to one or more third parties (the "Purchaser").
3. Consignment Period and Return of Consignment Items
The Customer will, at its sole expense, provide and deliver the Consignment Items to the Company, in such manner and to such place as directed by the Company.
The consignment period for the Consignment Items commences on the date on which the Consignment Items (or the last such item, if more than one) are accepted by the Company for delivery and will end on the forty fifth (45th) day thereafter (“Consignment Period”). The Consignment Period may be extended by agreement of the Company and the Customer in writing. If the Consignment Period expires and has not been extended prior to a sale to a Purchaser being agreed for all Consignment Items, any unsold Consignment Items will be returned to the Customer within 30 days of expiry of the Consignment Period.
The return of any unsold Consignment Items will be at the sole expense of the Customer; the Company reserves the right to withhold the return of any Consignment Items until it has received prior payment of such expenses in full. The expenses required to return a Consignment Item to the Customer will be determined by the Company in its sole discretion.
4. Condition of Consignment Items / Acceptance of Consignment Items
The Company will only accept Consignment Items that are authentic and any defects should be brought to the Company’s attention prior to delivery of the Consignment Items. Upon receipt of each Consignment Item, the Company will evaluate the Consignment Item to determine its quality and authenticity. The opinion of the Company regarding the assessment of each Consignment Item is final and binding. The Company reserves the right to return any Consignment Item to the Customer promptly and at the sole expense of the Customer if it decides such Consignment Item does not meet its quality and authenticity standards.
The Customer agrees that the condition of a Consignment Item may affect the value of the Consignment Item and/or the likelihood of its sale to a Purchaser. The Company may recommend to the Customer servicing or repair services in relation to any Consignment Item, which may be provided by the Company or a third party (the "Servicing Expenses"). The Customer is required to agree to such Servicing Expenses in writing prior to them being incurred and the Customer will bear the full expense of such Servicing Expenses. The Customer acknowledges that if a servicing or repair service is recommended by the Company but not undertaken, this may affect the likelihood of the Consignment Item being accepted by the Company for consignment, the value of the Consignment Item and/or the likelihood of its sale to a Purchaser.
If any Consignment Item provided to the Company is found to be counterfeit, stolen or in any way connected to illegal activities, the Company reserves the right to confiscate such Consignment Item and provide the Consignment Item and any other information (including, the Customer’s personal information) to any person, government authority or agency that may be concerned with such counterfeiting, theft or illegal activity, as the case may be.
The Company reserves the right to decline the acceptance of any Consignment Items without need to provide reasonable explanation to the Customer.
If the Customer requests the Company to return any Consignment Item prior to the expiry of the Consignment Period, the Company will charge a fee of one hundred and fifty pounds sterling (£150) per Consignment Item as a service fee to cover any marketing, transportation, insurance and/or storage costs incurred by the Company during the Consignment Period.
5. Rights to Sell Consignment Items
The Customer grants to the Company the exclusive right to sell the Consignment Items on behalf of the Customer as its agent during the Consignment Period pursuant to the Agreement. During the Consignment Period, the Company will use commercially reasonable efforts to make available for purchase the Consignment Items on the Company’s website and by such other marketing methods as the Company may, in its sole discretion, deem appropriate. The Company reserves the right to include the Consignment Items as part of any sales and promotions that the Company offers to its customers. The Company will retain fifteen per cent. (15%) of the Selling Price of any Consignment Item sold to a Purchaser as its selling commission (the "Commission"). The Company has the right to offer to purchase a Consignment Item for its own account but is under no obligation to do so. The Customer agrees that if it accepts any offer of sale for the Consignment Item without the involvement of the Company, the Company is entitled to five per cent. (5%) of the total sale value of the Consignment Item.
6. Pricing / Payment
The Customer will receive a recommended selling price for each Consignment Item in writing within three (3) business days after the Consignment Item has been delivered to the Company (the "Recommended Selling Price"). The Company will relay all offers of purchase for the Consignment Items to the Customer in writing, including details of any import taxes applicable to the Consignment Items should the potential Purchaser be located outside the United Kingdom. If the Customer decides to accept an offer for the purchase of a Consignment Item from a Purchaser, it will inform the Company in writing stating the final acceptance price (the "Selling Price") and such acceptance will be irrevocable. Upon receipt of such written acceptance from the Customer, the Company will proceed to sell the Consignment Item to the Purchaser.
Following sale of the Consignment Item to the Purchaser as arranged by the Company, the Company will remit to the Customer the Selling Price less the Commission and any Servicing Expenses by no later than seven (7) business days following receipt of the Selling Price by the Company. All such payments must be made by bank transfer in accordance with the details provided by the Customer to the Company in writing. The Company does not accept or make payments in cash. The Company is not obliged to make any payment to the Customer unless and until the Company receives the proceeds from any such sale from the Purchaser. The Customer will be liable for any and all taxes and duties incurred by the sale of the Consignment Item.
7. Title / Risk of Loss
All Consignment Items will remain the property of the Customer until the Company completes the sale of the relevant Consignment Item to a Purchaser. The Company will acquire no right, title or interest in the Consignment Items other than the right to possess the Consignment Items and sell the Consignment Items as agent on behalf of the Customer pursuant to the Agreement. The Company undertakes to maintain insurance for the Consignment Items in its possession against theft, loss, damage and destruction in an amount equal to or exceeding the Recommended Selling Price. The Company will use commercially reasonable efforts to maintain complete and accurate records concerning the Consignment Items and the Customer's ownership thereof.
These Terms and Conditions will be effective from the time the Customer signs the Consignment Form and will continue in full force until the earlier of (i) the expiry of the Consignment Period and (ii) termination of the Agreement as provided in this paragraph 7.
Prior to the expiry of the Consignment Period, either party may terminate the Agreement at any time:
(i) without cause, upon giving seven (7) business days notice in writing to the other party; or
(ii) immediately upon giving notice in writing to the other party, if the other party is in breach of the Agreement and, if such breach is capable of cure, fails to cure such breach within five (5) business days after it receives written notice thereof from such party.
Upon termination of the Agreement, any remaining Consignment Items in the possession of the Company will be returned to the Customer in accordance with paragraph 3 of these Terms and Conditions. If the Customer terminates the Agreement while the Consignment Period is in effect, for each Consignment Item returned to the Customer, the Company will charge an additional fee as provided in paragraph 3 of these Terms and Conditions.
9. Warranty and Disclaimer
The Customer represents and warrants as follows to the Company on the date the Consignment Form is signed and on every subsequent day during the Consignment Period:
- if the Customer is an individual, the Customer is at least 18 years of age and has full mental capacity to enable it to enter into the Agreement;
- if the Customer is not an individual, the person executing the Agreement is an authorised representative of the Customer capable of binding the Customer to the Agreement;
- the Customer has good title to each Consignment Item, free of all liens, charges, claims and incumbrances;
- each Consignment Item is authentic and not counterfeit;
- each Consignment Item will conform in all material respects, with the specifications set forth on the labelling and packaging of the relevant Consignment Item (if any) and with the description provided to the Company prior to entry into the Agreement; and
- each Consignment Item has been obtained by the Customer from a lawful source and is not stolen or in any way concerned with money laundering, corruption, terrorism or any other illegal activity.
10. Limitation of Liability
Neither the Company, nor any of its employees, officers, directors, agents or affiliates will be liable for any consequential, incidental, indirect, punitive, special or exemplary damages of any kind, or for any lost revenues or profits, loss of use, loss of cost or other savings, or loss of goodwill or reputation, with respect to any claims based on contract, tort or otherwise (including negligence) arising out of or relating to the Consignment Items, the use thereof, or otherwise arising out of or relating to the Agreement, regardless of whether the Company was advised, had other reason to know, or in fact knew of the possibility thereof.
In no event WILL the Company be liable for any damages in excess of the RECOMMENDED Selling Price in relation to the Consignment Item that gave rise to the claim.
The Customer agrees to indemnify and hold harmless on an after tax basis the Company, its employees, officers, directors, agents and affiliates against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable legal fees) and judgments arising from a third-party claim against the Company arising from (i) the Company’s sale of a Consignment Item or (ii) the Customer’s breach of any warranty set forth in paragraph 8 of these Terms and Conditions.
12. Force Majeure
If the performance of any of the Company's obligations under this Agreement is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the control of the Company including, but not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of God or of the public enemy, riots, public disorders, strikes, labour disputes, transportation embargoes or delays, failure of common carriers or acts or regulations or priorities of the government or branches or agencies thereof, the Company will be excused from performing such obligations to the extent of such prevention, restriction or interference.
13. Data Protection Policy
The Customer acknowledges that it has read the data protection policy of the Company, which is available on the Company's website and that it agrees to be bound by the terms of such policy.
No waiver by the Company of any breach or non-fulfilment by the Customer of any provisions of the Agreement will be deemed to be a waiver of any subsequent or other breach of that or any other provision and no failure to exercise or delay in exercising any right or remedy under the Agreement will constitute a waiver thereof. No single or partial exercise of any right or remedy under the Agreement will preclude or restrict the further exercise of any such right or remedy.
The rights and remedies of the Company provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law. If a provision or part of any provision of the Agreement is found by any court of competent jurisdiction to be illegal, invalid or unenforceable, such provision or part provision will, to the extent required, be deemed not to form part of the Agreement and will not affect the continuation in force of the remainder of the Agreement.
The Company and each of its employees, officers, directors, agents or affiliates may enforce the terms of the Agreement subject to and in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999. Except as provided in this paragraph, any person who is not a party to the Agreement does not have any rights to enforce any term of the Agreement by virtue of
the Contracts (Rights of Third Parties) Act 1999.
Notwithstanding the immediately preceding paragraph, it is expressly agreed that the parties to the Agreement may, by agreement, rescind or vary the Agreement or any term of the Agreement without the consent of any person or body who has the right to enforce the Agreement or the term in question, notwithstanding that such rescission or variation may extinguish or alter that person or body's entitlement under that right.
These Terms and Conditions, together with the Consignment Form, and any documents referred to therein constitute the entire agreement and understanding of the parties in connection with the subject matter thereof and supersedes, cancels, nullifies and extinguishes all previous agreements, understandings, undertakings, statements, representations, warranties or arrangements (in each case whether oral or written) between the parties relating to the subject matter hereof.
Paragraphs 7, 9, 10 and 14 of these Terms and Conditions survive the termination of the Agreement.
15. Governing Law and Jurisdiction
The Agreement and any non-contractual obligations arising out of or in connection with it, is governed by and construed in accordance with the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Agreement and that accordingly, any suit, action or proceedings arising out of or in connection with the Agreement will be brought in such courts.