Consignment Terms
View Consignor Commission Rates here.
These terms and conditions create a contract between you and Purple Creek (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 Purple Creek.
The Purple Creek's Terms of Service located here are also expressly incorporated as part of this Agreement and apply to your and The Purple Creek’s activities under this Agreement as though set forth fully herein.
ONCE YOU AGREE TO THIS AGREEMENT, IT WILL REMAIN IN EFFECT UNTIL YOU OR PURPLE CREEK TERMINATES IT ACCORDING TO THE TERMS SET FORTH HEREIN.
1. OVERVIEW
Purple Creek markets and sells fine jewelry, loose diamonds and colored gemstones, watches and fine sterling silver hollowware and flatware. You would like Purple Creek 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 Purple Creek, will still own the Property, even after you transfer physical possession of the Property to Purple Creek. After Purple Creek receives or picks up Property from you, Purple Creek will send you an email in accordance with "Notices" at Section 19 below confirming the items of Property received. Once your items have been evaluated, inspected, and authenticated by Purple Creek's authentication team, you will receive an email to view your items that have been accepted for consignment (the items are then "Accepted") and the list price(s) assigned to those Accepted items. Please note that all prices are determined at Purple Creek’s sole discretion unless previously agreed in writing. The Accepted items will then be processed and listed as available for sale on the site.
2. DELIVERY OF PROPERTY; RISK OF LOSS; INSURANCE
Purple Creek accepts the Property from you on a consignment basis only. You are responsible for all risk of loss or damage to the Property, including but not limited to risks of mailing, transport, or delivery, until Purple Creek takes physical possession of the Property. All Property must be sent via a trackable third party sender, including USPS Priority, UPS or FedEx with an assigned tracking number, or via courier. Any Property sent without a method of tracking, such as standard first class mail, will be rejected by Purple Creek.
If an item of Property is damaged, stolen, or lost while in Purple Creek's possession, it will be treated as Sold (defined in "Title to Property" at Section 7 below) and Purple Creek 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 Purple Creek. This remedy shall constitute your sole remedy and entire recourse against Purple Creek 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.
3. PROPERTY ACCEPTANCE CONDITIONS
Upon receipt, Purple Creek 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.
Purple Creek only Accepts Property for consignment which: (a) Purple Creek determines in its sole discretion to be in very good to excellent condition, or items that can be restored to the prior mentioned conditions with client approval on costs; (b) Purple Creek determines in its sole discretion to be authentic; and (c) for which the representations and warranties you make in the "Your Representations, Warranties, and Indemnification" section below are confirmed by you to be 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) Make recommended restorations with client approval to bring it to Purple Creek’s selling standards or (3) with your approval, confirmed in writing, Purple Creek 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).
4. UNAUTHENTICATED, COUNTERFEIT, OR STOLEN ITEMS
You are responsible for ensuring the authenticity of all Property you provide to Purple Creek. If Purple Creek 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 Purple Creek determines at any time that an item of Property is counterfeit, Purple Creek 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 Purple Creek within seven (7) days of such Notice. You acknowledge and agree that any item Purple Creek finally determines to be counterfeit after the expiration of said period will not be returned to you and will be destroyed.
You acknowledge and understand that Purple Creek is subject to laws and regulations relating to claims that consigned items are counterfeit, have been stolen, or otherwise violate applicable law. Purple Creek takes such reports seriously and will cooperate with law enforcement in all investigations.
No commission or other payments shall be made in respect to any Property determined to be counterfeit.
5. CONSIGNMENT PERIOD AND RETURN OF PROPERTY
The "Consignment Period" for each item of Property begins on the date Purple Creek Accepts the item for consignment and ends 365 days thereafter, even if this Agreement has been terminated during that time by you or Purple Creek. At any time during the Consignment Period, and subject to this provision, you may request in writing that Purple Creek return the item (a "Return Request"), so long as the item has not already been Sold. Once Purple Creek receives your Return Request, it will use commercially reasonable efforts to remove the item from www.purplecreek.com (the "Site") before it is sold. It is your responsibility to ensure that Purple Creek has your most current contact information and mailing address.
(a) If the Return Request is made 90 days or less from the date Purple Creek accepted the item of property, we will return the item within 30 days. Purple Creek will charge you the costs of return and, in such case, such costs shall be deducted from your pending Commissions via offset against your account balance. If you do not have enough pending Commissions available to cover the costs of return, Purple Creek shall have no obligation to return the item to you unless and until you pay Purple Creek the costs of return prior to shipment.
Additionally, Purple Creek will charge you (i) a fee of $15 per item, which fees reflect Purple Creek’s up-front costs of storing, cataloging, and photographing the item in preparation for sale, plus (ii) applicable shipping costs, and (iii) charges for any authorized repairs that were done on clients behalf to improve the sellability of the item.
(b) If the Return Request is made more than 90 days after Acceptance, or is otherwise made in response to a change of terms before the effective date of revised terms pursuant to paragraph 13 hereof, the item will be returned within 30 days at Purple Creek’s expense and no fees will be added with the exception of charges for authorized repairs.
(c) If an item remains unsold at the end of the Consignment Period, Purple Creek will contact you and, at your option and Purple Creek’s expense: (i) return the item to you or (ii) donate the item to a charity of Purple Creek’s choice.
If at the end of the Consignment Period Purple Creek 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 19 below, the item may be donated to a charity of Purple Creek’s choice.
6. EFFORTS TO SELL; PRICE
So long as you comply with this Agreement, Purple Creek will display on the Site and will make commercially reasonable efforts to sell the Property. You acknowledge and agree that:
(a) Purple Creek in its sole discretion 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, Purple Creek may in its sole discretion apply an immediate 20% discount to the item, which will affect the item’s Initial Sale Price, unless Purple Creek and you have otherwise agreed in writing to a specific price at which a specific item must be sold.
(c) Purple Creek 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 Purple Creek and you have otherwise agreed in writing to a specific price at which a specific item must be sold.
7. 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 Purple Creek to a customer and not returned to Purple Creek within the period specified in Purple Creek's then-current Return Policy (see www.purplecreek.com/returns); or
(b) it is lost, stolen, damaged, or destroyed while in Purple Creek's possession.
8. COMMISSIONS AND PAYMENT
(a) "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 Purple Creek from the Sale of all of your Property, less applicable discounts and promotions and excluding taxes and shipping.
Purple Creek 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 below.
(b) Calculation of Commissions. Purple Creek 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.
(c) Payments. Purple Creek typically begins processing Commission payments after 30 day return window of item purchase. Payments will be made to you by physical check, direct deposit or, if you elect another payment method acceptable to Purple Creek, 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.
(d) Disputes. If there is a dispute between you and Purple Creek, Purple Creek 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. Purple Creek 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 Purple Creek.
9. TERMINATION
You and Purple Creek 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" at Section 5, will apply.
10. NO ASSIGNMENT
You may not assign this Agreement or any interest you have in it without Purple Creek 's prior written consent. Any prohibited assignment is null and void.
11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF PURPLE CREEK’S SERVICES IS AT YOUR SOLE RISK. PURPLE CREEK’S CONSIGNMENT AND OTHER SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PURPLE CREEK 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. PURPLE CREEK MAKES NO WARRANTY THAT (A) PURPLE CREEK’S SERVICES WILL MEET YOUR REQUIREMENTS OR (B) PURPLE CREEK’S SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM PURPLE CREEK OR THROUGH OR FROM THE SITE OR PURPLE CREEK’S SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
PURPLE CREEK 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 PURPLE CREEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE USE OR THE INABILITY TO USE PURPLE CREEK’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 PURPLE CREEK S SERVICES OR THIS AGREEMENT.
IN NO EVENT WILL PURPLE CREEK 'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT IT HAS ACTUALLY RECEIVED AS A RESULT OF SELLING YOUR PROPERTY HEREUNDER. PURPLE CREEK SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THE FOREGOING DISCLAIMERS AND LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF THE PURPLE CREEK 'S BUSINESS, AND PURPLE CREEK 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.
12. 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. Purple Creek is expressly relying upon the truth of the above representations as a fundamental inducement for entering into this Agreement.
You hereby indemnify and hold Purple Creek harmless from all damages, suits, litigation, awards, and costs, including but not limited to, reasonable attorneys’ fees and costs, incurred by Purple Creek as a result of or arising in any way out of Purple Creek '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. Consignor expressly agrees to hold Purple Creek harmless from any claims of subrogation by Consignor's insurance should it obtain same, and will indemnify Purple Creek for any awards, costs, damages or attorneys fees paid by Purple Creek to the extent that Consignor's insurer seeks recovery in violation of these terms, whether or not such claim is ultimately successful or resolves through settlement.
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 Purple Creek, whether tort, contract, or statutory, shall be governed by the laws of North Carolina, without regard to its conflicts of laws principles.
You expressly consent to jurisdiction of a federal or state court located in the County of Wake, City of Raleigh with respect to any matter arising under this Section 12.
13. AMENDMENTS TO THIS AGREEMENT
Purple Creek 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.
14. ENTIRE AGREEMENT; CONFLICTS WITH OTHER AGREEMENTS.
This Agreement sets forth the final, complete, and exclusive agreement between you and Purple Creek 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 Purple Creek. While Purple Creek has a duty to notify you of changes to the Agreement according to the provisions of Sections 8 and 13, you are solely responsible for ensuring you are familiar with the terms and conditions relevant to any Amendments.
In the event of a conflict between the terms of these Consignment Terms and the general Terms of Service set forth as to the use of the Site, and to the extent such conflict can not be resolved by interpretation consistent with both agreements, the terms set forth herein shall be prevail as to any issue concerning Consignment.
15. NO IMPLIED WAIVER
Any failure by you or Purple Creek to enforce any provision of this Agreement shall not constitute a waiver of such provision or of any other provision of this Agreement.
16. SEVERABILITY
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.
17. SURVIVAL OF TERMS AFTER AGREEMENT ENDS
If any term or provision of this Agreement shall to any extent for any reason be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the remainder of this Agreement, and each term of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The invalid, illegal or unenforceable provision shall, to the extent permitted by law, be deemed amended and given such interpretation as to achieve the intent of this Agreement.
18. HEADINGS
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
19. NOTICES
If you have any questions or comments about this Agreement, the Site or Purple Creek’s services or wish to terminate this Agreement, please contact Purple Creek by email at info@purplecreek.com.
Purple Creek shall provide all notices to you at the email address or physical address that you have provided to Purple Creek. You are solely responsible for keeping that information current with Purple Creek. Failure to keep information current shall not be deemed a failure of Notice by Purple Creek.
You hereby agree that all agreements, notices, disclosures, and other communications that Purple Creek provides electronically to you satisfy any legal requirement that such communications be in writing.
20. 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 "Your Representations, Warranties and Indemnification" at Section 12 above, you and Purple Creek agree that, with respect to any matters, disputes, or claims between you and Purple Creek arising from or related to this Agreement or your relationship with Purple Creek, you and Purple Creek 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 Purple Creek receives notice from the other party in accordance with "Notices" at Section 19 above, you or Purple Creek 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 Purple Creek, set forth in "Your Representations, Warranties and Indemnification" at Section 12 above, any claim, dispute, or controversy between you and Purple Creek arising from or relating to this Agreement or the relationships which result from this Agreement that remains unresolved after you and Purple Creek attempt to resolve them informally shall be resolved by binding arbitration brought on an individual basis as a "Business to Business Dispute" 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 Purple Creek) in a manner consistent with the terms in this Agreement. You and Purple Creek 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 Wake, City of Raleigh. You and Purple Creek shall each pay our 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 Purple Creek 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 file@adrforum.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. You and Purple Creek 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 Purple Creek. 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