THIS AGREEMENT (the “Agreement”) ________is dated as of _________, 2018 (the “Effective Date”),
and is by and between LuxySource LLC, a New York limited liability company, having an
address at 36 West 47 th Street, New York, New York 10036 (“LuxySource”) and
_____________________________, a _____________ organized under the laws of the State of
__________________, having an address at ________________________________________
(“Vendor” and, together with LuxySource, the “Parties” and, individually, a “Party”).
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth,
the parties hereto hereby agree as follows:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Vendor shall pay to LuxySource (1) monthly subscription and marketing fees relating to the
Service Level selected by Vendor and set forth on Schedule 1 hereto and (2) Transaction Fees for
Vendor Products sold through Digital Platforms placed by the LuxySource as set forth on
Schedule 1 hereto.
Such payments to be made in the manner set forth on this Schedule 2, either Plan A or Plan B
To initiate and conduct an auction and sell products by auction on the Luxysource Platform, you must be a VENDOR who has executed a Luxysource Vendor Agreement (“LVA”) and in good standing and in compliance with such LVA. VENDORS who have executed an LVA and want to conduct auctions are encouraged to invite their customers and fellow dealers and vendors in their trade community to register and bid at their auctions.
To bid on and purchase products which are auctioned on the Luxysource Platform, you must register as a Bidder, unless you are already registered as a VENDOR and have executed and are in good standing and in compliance with a Luxysource Vendor Agreement (LVA).
The Luxysource Platform facilities several forms of on-line auctions to most effectively serve the preference of our subscribers.
Vendors initiating an auction pay Luxysource a hosting fee and then as Sellers pay to Luxysource a sales commission on the winning bid price. At the present time, Luxysource is not charging winning bidders a “buyer’s premium” or similar fee.
VENDORS with an LVA in good standing who have elected the $1499 per month LUXURY subscription plan can initiate an auction WITHOUT ANY HOSTING FEE!!
VENDORS with an LVA in good standing who have elected the $299 per month BASIC subscription plan or the $799 per month STANDARD subscription plan will be required to pay a Five Hundred ($500) Dollar Hosting Fee to initiate an auction on the Luxysource Platform. There is only one Hosting Fee per auction, regardless of the number of products or lots put up for auction. This fee is not refundable, even if the auction is not successful and there are no bidders, or the reserve price is not achieved, or the winning bidder does not pay for the auctioned products.
Luxysource is entitled to a sales commission of Five (5%) Percent of the winning sales price, which will be deducted from the full Bidder winning price to be remitted to Seller. The commission will not be paid if the auction is not successful in that there are no bidders, or the highest bid did not achieve the reserve price. Luxysource shall be entitled to the commission if there is a valid winning bidder but such bidder does not pay for the auctioned products.
In addition to utilization of the Luxysource Platform to display and describe the Vendor Products which are to be auctioned and to facilitate pricing, reserves, bidding and winners, Luxysource will facilitate processing the payments due from the winning Bidder to the Seller. Bidders will be required to register with credit cards or PayPal. Luxysource will charge the Bidder the winning price.
When the sale is completed, there will be an automatically generated invoice to the winning Bidder with the winning price. When Luxysource receives valid payment from the winning Bidder, Luxysource will notify the Seller. The Seller is then required to deliver the product to the winning Bidder. if Luxysource has not received any adverse notices from the winning Bidder thirty (30) days after the auction date, Luxysource shall credit the winning bid price to Seller after deducting Luxysource’ five (5%) percent commission on such winning bid price and any other charges owed to Luxysource relating to the auction.
If within thirty (30) days after the auction date, Luxysource receives an adverse notice from the winning Bidder, to the effect that the product was never delivered, was damaged, was the wrong product, did not conform to descriptions or any other supportable complaint, Luxysource will notify the auction Seller and Luxysource will not credit any of the winning bid price to Seller until Luxysource has received notice from the winning bidder that the matter is resolved between Seller and Buyer. If the Seller fails to adequately respond to Luxysource’ notice within ten (10) days, Luxysource will return the full winning bid price to the winning bidder.
If Luxysource does not receive valid payment of the winning bid price from the winning bidder within ten (10) days of the auction date, Luxysource will notify Seller and the winning bidder, and Seller shall thereafter not be obligated to deliver the auction products to such bidder. The same procedure shall be followed If, prior to the expiration of such ten (10) days after the auction date, Luxysource receives notice that the bidder’s credit card has been declined, or there are insufficient funds or insufficient credit for payment, and the matter is not corrected by valid payment within ten (10 days of the auction date,.
As described above, Luxysource is entitled to a sales commission of Five (5%) Percent on the winning sales price, which will be deducted from the full Bidder winning price facilitated through Luxysource. After deducting the Luxysource sales commission, Luxysource shall credit the balance of the Bidder price payment to the Seller on a monthly basis. If such credit to Seller is in excess of the charges invoiced to Seller on the regular monthly Luxysource Vendor Invoice, Luxysource will transmit such payment to Seller. Luxysource shall be entitled to such sales commission on the winning sales price, which commission will be invoiced to Seller, whether Luxysource collects the winning sales price from the winning bidder. If there is no winning bidder, meaning that no one bid on the Product or the highest bid did not achieve the reserve price, there is no commission due to Luxysource at that time.
At the present time, Luxysource does not charge registered Luxysource Vendors who have a valid Luxysource Vendor Agreement (LVA) in effect, a listing or reserve fee for the listing of each Vendor Product on Luxysource Auctions. At the present time, Luxysource does not charge a “Buyer’s Premium” on a winning bid price. The Buyer will only pay the winning bid price to the Seller and not an additional premium to Luxysource. Luxysource is compensated for use of the Luxysource Platform for auctions by a Hosting Fee which covers the entire auction and by Luxysource sales commissions on each product put up for auction when there is a winning bid; such compensation is paid by Seller, either by invoice to Seller or by deduction from the bid purchase price to be paid by Buyer.
When a Vendor who has a valid Luxysource Vendor Agreement (LVA) initiates an auction through the Luxysource Platform, such Vendor is deemed to have authorized Luxysource (a) to list the Vendor Products designated by Vendor for auction and to process the on-line auction in accordance with the parameters established by Vendor, such as start and end time, minimum bid and reserve price, and in accordance with the Luxysource Auction terms and conditions set forth herein; (b) to invite the class of bidders (selections 1,2 or 3 above) to participate in the auction, (c) to charge, invoice and/or deduct Luxysource’ sales commission from a winning bid, (d) to process auction payments from winning bidders, and (e) to charge the Vendor a Hosting Fee for the auction (except for Luxury Plan $1499 a month subscribers who do not pay a Hosting Fee). Such Vendor is deemed to make the same representations, warranties, covenants and indemnities to Luxysource as the Vendor makes on the sale of products through the Luxysource Platform to on-line Digital Retail Vendors under the Luxysource Vendor Agreement (LVA) entered into by that Vendor, and the LVA shall be deemed applicable to all sales by Vendor of products at auction using the Luxysource Platform.
Similar to the representations made by a Vendor in its LVA, the Vendor by initiating an auction for a product on the Luxysource platform must have the product available in inventory ready to sell and deliver to a winning bidder, with good and marketable title to the product. Sellers must deliver the product to the winning bidder in a secure manner consistent with industry standards and post the product for delivery within 48 hours after receiving the winning bidder’s payment in full.
All persons who want to bid on products listed for auction on the Luxysource Platform must register as bidders, See “Luxysource Bidder Registration Form and Agreement.” Luxysource reserves the right to terminate any Bidder’s registration, or refuse registration of a bidder, in its sole discretion. If a bidder is already a Luxysource Vendor who has entered into an LVA, Luxysource will contact that Vendor regarding any issues with its bidder registration.
The auction Seller is the direct seller of Products to the winning bidders and the auction Seller shall have and retain all responsibility as a seller of goods under applicable commercial law, including without limitation, any express or implied warranties imposed by law or provided by Seller.
Luxysource does not take title to such Products, does not provide any warranties, endorsements or assurances as to such Products and has no responsibility therefore, and Luxysource disclaims all warranties whatsoever relating to such Products.
Luxysource, does not, by facilitating auctions of Products on the Luxysource Platform, undertake, endorse, warrant, guaranty or assure any obligation or liability of the Seller of auctioned Products and Luxysource shall not have any liability for the delivery, quality, grading, performance, authenticity or infringement of any Products sold through auction on the Luxysource Platform introduced or enabled by Luxysource. The Luxysource brand name and trademarks shall NOT be utilized in connection with any Product sold through auction on the Luxysource Platform.
Luxysource does NOT provide any “certification” of the quality, grading, value, performance, authenticity, history of ownership or any other factor relating to any Product sold through auction on the Luxysource Platform.
The Auction Seller is responsible for the accuracy of any written description of its products; any photographs, drawings or other information displayed as to the products under auction; and any descriptions or references to warranties, quality, grading, value, performance, authenticity or history of ownership. Luxysource does not review, verify or edit any such information.
The Auction Seller shall be directly responsible at its own expense for shipment and delivery to the winning bidders of any Product sold through auction on the Luxysource Platform and for all customer service relating to such Products, including returns, refunds, adjustments, credits, repairs, warranty service, cleaning, polishing, re-mounting, re-sizing, or other services.
When a bidder wins the auction within the parameters established by the Seller (such as minimum bid, reserve price, start and end time), a legal contract is created between Seller and such bidder, requiring Seller to deliver the products listed to bidder and bidder to pay Seller the winning bid price. This is a direct contract between Seller and the winning bidder and Luxysource is not a party thereto. Luxysource does not guarantee, assure or have any responsibility for the winning bidder’s obligation to pay the winning purchase price for any Product sold through auction on the Luxysource Platform, regardless of whether the winning bidder is a registered Luxysource Vendor with a Luxysource Vendor Agreement( LVA) or is a member of the general public who has registered as a bidder with Luxysource. Luxysource shall have no responsibility to take any actions, legal or otherwise, to enforce the payment obligations of a winning bidder. Luxysource will process winning bidder payments, and if Luxysource does not receive a valid payment from the winning bidder within ten (10) days after the auction date, Luxysource will notify Seller and the winning bidder.
A Seller who has not been paid by a winning bidder should
As noted above, when a bidder wins the auction with the parameters established by the Seller (such as a minimum bid, reserve price, start and end time), a legal contract is created between Seller and such bidder, requiring Seller to deliver the products listed to bidder and bidder to pay Seller the winning bid price. This is a direct contract between seller and the winning bidder and Luxysource is not a party thereto. Luxysource does not guarantee, assure or have any responsibility for Seller’s obligation to deliver the product listed at auction to the winning bidder. Luxysource shall have no responsibility to take any actions, legal or otherwise, to enforce such obligations of Seller. A winning bidder who has made valid payment for the product and not received delivery of the product by the Seller should first notify the Seller and demand delivery or return of any payment provided. If the Seller does not comply, the winning bidder should notify Luxysource which shall not credit such bidder’s payments to Seller until Luxysource is notified by the winning bidder that the matter has been resolved. Luxysource will block further auctions by such Seller unless there are satisfactory explanations for failure to deliver. If Luxysource receives a valid payment from a winning bidder within ten (10) days if the auction date, Luxysource notifies both the auction Seller and the winning bidder. If Luxysource does not receive any adverse notices from the winning bidder within thirty (30) days after the auction date, Luxysource shall credit the Seller with the winning price, after deducting Luxysource’ commission and any other charges. If a winning bidder fails to make valid payment for the product within ten (10) days of the auction date, or if the credit card or other payment method is declined and not restored within such time period, Seller may re-list the product for auction. Auction Sellers must arrange at their own expense for secure delivery of products to the winning bidders in accordance with industry standards, including shipment and insurance.
All auction sales of products on the Luxysource Platform are final. If Seller purports to have any kind of return or refund policy, Luxysource takes no responsibility therefor and will not enforce such policy on behalf of any Buyer.
Luxysource does NOT provide or display “seller ratings”, “buyer ratings” or “bidder ratings” of the type that may appear on eBay or other auction sites. Luxysource does not display the number of successful auctions, products or dollar amounts sold by any Seller at auction on the Luxysource platform or any other “Seller history”. Similarly, Luxysource does not display the number of successful purchases, products or dollar amounts purchased by any bidder at auction on the Luxysource platform or any other “Buyer history”.
Auction and Bidding Rules. During the time that the auction process is “Live” and bids are being received for a particular item, the bidding history for that particular item is displayed, as well as the start and end time for the auction, any reserve price and whether the reserve has been met, Once the auction of a particular item has ended, Luxysource will display the winning price and winning bidder if there is one, or if there was no winning bidder or the reserve was not met. Once the auction has started, the Seller can reduce or eliminate the reserve, but cannot increase it. Once the auction has started, and there are any bids made by registered bidders, the Seller cannot cancel the auction. If a Bidder makes a bid, the Bidder can withdraw the bid up to the completion time of the auction, but such withdrawal will not revive a prior bid by that Bidder (this rule is in accordance with Section 2-328(3) of the New York Uniform Commercial Code). If a Bidder makes a bid and has not withdrawn the bid prior to the completion time of the auction, the Bidder cannot withdraw the bid and if it is the winning bid, the Bidder is obligated to purchase the item from the auction Seller.
Luxysource may in its sole discretion refuse to allow any products or goods from being listed or sold at auction on the Luxysource Platform. Luxysource may in its sole discretion cancel any listing or any auction even if it has started. Without limiting the generality of the foregoing,
Auction Sellers and Bidders are prohibited from engaging in any practices to improperly manipulate either increases or decreases in prices for products at auction or to create confusion or misinformation during the bidding process. Sellers shall not engage in “collusive” bidding by arranging for fake bidders to increase the price. Buyers shall not engage in “collusive” bidding by arranging for fake bidders to submit low bids. Bidders will not be permitted to have multiple registrations and identities and shall be limited to a single registration and may only submit bids on behalf of their single registered identity. Repetitive withdrawals of bids will be viewed as an improper manipulation.
When an auction is completed, there is a legally binding direct contract of sale between the Seller and the winning Bidder at the winning price. This contract can NOT be assigned by either Seller or Buyer to any third party. A winning bidder must pay for the product directly and cannot assign or substitute any other party to do so. An auction seller can NOT assign the contract or rights to payment as an “accounts receivable” or any other methodology. Luxysource will NOT recognize any third party as a payee of any winning bid price. When Luxysource processes the winning bidder’s payment, Luxysource will only remit such payment as collected to the original auction Seller, and Luxysource will NOT make payment to any third party.
Luxysource shall NOT have any obligation to any creditor of Seller or any supplier of any product to Seller which product has been placed on auction. Luxysource shall NOT have any obligation to recognize any third party who or which claims to have provided the auction product “on memo” or “on consignment” to the Seller conducting such auction. An auction bidder may NOT assign the rights to a winning bid - either before or after completion of the auction - to any third party, and neither Luxysource nor any Seller is obligated to recognize any person or entity other than the registered winning bidder or to accept payment from anyone other than the registered winning bidder. Auction Sellers on the Luxysource platform must have a valid LVA in effect and must be bona fide sellers of their own auction products. Luxysource will not recognize or permit any persons or entities to auction products of third-party sellers or to act as auctioneers themselves.
Auction Sellers may put up for auction a “Lot” consisting of more than one item. As such, the Seller must sell, and the winning bidder must purchase, ALL items in the Lot, and there will not be any selling or bidding on individual items within the Lot. If the Seller wants to auction multiple Lots, then each Lot is a separate auction, a separate sale, and a separate bidding process, in accordance with Section 2-382(1) of the New York Uniform Commercial Code.
In addition to the general Luxysource Privacy Rules available on the Luxysource website, the following special privacy rules will apply to auctions conducted on the Luxysource platform:
BIDDERS CREDIT CARD OR OTHER ELECTRONIC PAYMENT AUTHORIZATION
TO BE PROMPTED HERE:
The undersigned does hereby apply to register as a bidder to participate in Luxysource Auctions, subject to the terms and conditions of the Luxysource Auctions and acknowledges and agrees to the following.
Are you Register As