This agreement and all the exhibits to this agreement (the “Agreement”) govern our relationship concerning all footwear and other goods (collectively, the “Goods”) which you deliver to Rainy Cloud Trading EST. Rainy Cloud Trading EST (“we” or “us”) for sale, and which we except for sale, on consignment. We reserve the right in our sole and absolute discretion to accept or reject any or all Goods which you may deliver to us without incurring any liability to you. If we accept your Goods for consignment sale, we will issue you a confirmation stating the quantity and description of such Goods and the price you set for such Goods (each a “Confirmation”). You have twenty-four (24) hours after we send you the Confirmation to notify us in writing of any discrepancies in the Goods as listed and/or any objections. If we do not receive any objections from you in writing, you will be deemed to have accepted the Confirmation which shall then be an exhibit to and form part of this Agreement. You shall fully and accurately fill out and execute such additional forms as we may request from time to time including, without limitation, tax forms (the “Forms”). Each submitted form shall be considered an exhibit to this Agreement. If we reject any Goods, they shall be put aside and available for pick-up by you for seven (7) days, after which we may dispose of them without our incurring any liability to you. In the alternative, if you provide us a credit card or other form of prepayment for shipping and handling costs, we will return the Goods to you via DHL or a comparable carrier.
For all Goods that you deliver to us, you represent and warrant that: (i) you are the valid and lawful owner of the Goods with the full legal right to offer and sell them, and to enter into this Agreement; (ii) if you are an individual, you are 18 years of age or older or, if you are under 18 years of age, your parent or guardian confirms these representations and this Agreement; (iii) none of the Goods are subject to any lien, encumbrance, security interest or other adverse claims; and (iv) all of the Goods are genuine and authentic, and conform to the description stated in the applicable Confirmation. If we believe in good faith that any of the Goods are counterfeit or otherwise unlawful, we shall notify you and destroy them without our incurring any liability to you, even if you challenge our determination or our determination is later found to have been wrong so long as it was made in good faith.
We may offer the Goods for sale at such price and in such manner as we deem appropriate in our sole discretion, including in our retail store and/or on one or more of our websites or third party websites so long as we pay you as outlined in Section 4 below. You may lower or raise the price for any Goods which have not yet been sold at any time on written notice to us, but if you seek to raise the price, the new price shall be subject to our approval at our sole discretion. We make no guarantee as to whether, when or at what price any of the Goods mayors will be sold, and we shall have no liability in the event any of the Goods fails to sell, except that we shall not sell the Goods and pay you less than the price you set and to which we agreed.
Proceeds of Sales
If, as, and when Goods are sold and proceeds are received by us, we will pay you the price you set and confirmed in the applicable Confirmation. We will notify you promptly upon the later of (a) our receipt of proceeds from the sale of Goods, or (b) the conclusion of the period within which the customer may make any claims regarding the Goods, and we will thereafter pay you your share of the proceeds at our store premises during normal business hours on a set date, upon your presentation of the applicable Confirmation and your driver’s license or other satisfactory government-issued photo identification. We may require you to sign a document confirming your receipt of the amount that we are then paying to you. In the alternative, at your request and if we agree, we will provide you store credit at no extra charge or, for an additional fee, we will send you a check via DHL or comparable carrier or wire transfer for the amount due or issue a credit to a credit card you have provided us. If you request that the payment be sent via wire transfer, you must provide your banking information. We will not retain this information after the transfer is completed. We may require you to sign a receipt confirming the delivery of your payment. We have the express right to withhold payment to you if any required Forms are not fully and accurately filled out, executed, and submitted to us. We will not issue any replacement check.
Withdrawal of Goods
Either you or we may, at any time, elect to withdraw any or all of the Goods which have not yet been sold, and will notify the other in writing of the decision to do so. In such an event, you will be responsible for picking up the goods at our premises during normal business hours, at which time you must present the applicable Confirmation together with your driver’s license or other government-issued photo identification, or otherwise arranging for return shipping, which must be prepaid by you. We may require you to sign a receipt confirming the delivery of the returned Goods to you in satisfactory condition.
Title to Goods
At all times before our sale of Goods, title to and ownership of the Goods will remain with you, except that we have full authority to affect the sale of such Goods following the terms of this Agreement.
Storage of Goods
We shall store the Goods in such a manner as to reasonably protect them from damage or deterioration and shall identify them as your property.
Risk of Loss
We will use reasonable care in the handling, display, and storage of your Goods. However, in the event any of the Goods are lost, stolen, damaged, or destroyed by fire, flood, customer handling or other causes beyond our reasonable control, the risk of loss remains with you, and we assume no responsibility or obligation to make any payment or reimbursement in respect of any such loss or damage, or for any special or consequential damages, except to the extent of any insurance proceeds that we collect in respect of such Goods. We make no representation or assurance that we will have insurance coverage for your Goods, or that, if we do, our insurance will provide coverage for the Goods, or for the amount which an insurer may pay in respect of any casualty relating to the Goods.
Customer Returns or Adjustments
From time to time, purchasers may make claims or seek adjustments arising from defects or other claimed deficiencies of the Goods. We reserve the right, in our reasonable discretion, to make allowances and/or accept returns of Goods.
To the extent that you provide us with Goods other than by in-person delivery at our retail store or such other location as we may elect from time to time, you and we will nonetheless endeavor to implement the terms and conditions of this Agreement as closely as possible, including (a) the issuance of Confirmations by mail, overnight courier or e-mail, notification of sale by mail or e-mail, transmittal of payment checks to you by DHL or comparable carrier to your address indicated above (or such other address as you may notify us of in writing) or wire transfer, and return of any unaccepted or unsold Goods to you by such means as you designate (with all shipping charges to be pre-paid for by you.)
From time to time during the term of this Agreement, each of us (as the “Disclosing Party”) may disclose or make available to the other (as the “Receiving Party”) information about its business affairs, goods and services, forecasts, confidential information and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. We consider your identity and any information from which you can be identified including but limited to your, name, physical address, email address, nickname, social media handles, and social security number your Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that at the time of disclosure: (i) is or becomes generally available to and known by the public other than resulting from, directly or indirectly, any breach of this Section by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that the third party is not and was not prohibited from disclosing the Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (v) must be disclosed under applicable law. The Receiving Party shall, for three (3) years from receipt of the Confidential Information: (1) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any the Confidential Information to any person, except to the Receiving Party’s representatives who must know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
You shall indemnify, hold harmless, and defend us and our parents, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by an Indemnified Party arising out of relating to, or resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise (collectively, “Claim”) of a third party: (i) relating to a breach of any representation, warranty or covenant made by you in this Agreement; (ii) alleging or relating to any act or omission by you in connection with the performance of your obligations under this Agreement; (iii) alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by your acts or omissions or (iv) relating to any failure by you to comply with any applicable laws.
Limitation of Liability
IN NO EVENT ARE WE LIABLE TO YOU FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (I) WHETHER THE DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL SUM OF ONE HUNDRED ($100) DOLLARS FOR EACH GOOD.
This Agreement constitutes the sole and entire agreement between you and us regarding the subject matter hereof, and neither you nor we have made any representation or warranty except as expressly stated above. No amendment of this Agreement, or any waiver hereunder, will be valid unless evidenced by a further written agreement signed by you and us. This Agreement is binding on and enforceable by you and us and you’re and our successors and assigns. This Agreement will be governed by and construed following the laws of Saudi Arabia. Any lawsuit or claim arising under this Agreement shall be brought exclusively in the courts located in Saudi Arabia, Riyadh, and you, and we consent to the exclusive jurisdiction of and venue in such courts. The terms and conditions outlined in this document shall govern in the event of any conflict between this document and any exhibits unless a subsequent document purports to expressly amend this document and is executed by both parties.