This Retailer Agreement (this “Agreement”), and all policies posted on SwapRetail’s websites, services and applications (collectively, its “Services”) set out the terms and conditions which SwapRetail offers retailers the use of its Services. By using the Services, each retailer agrees to comply with all of the terms and conditions of this Agreement.
The entity each Party is contracting with is SwapRetail, Inc., a Delaware corporation (“SwapRetail”), The retailer may be referred to in this Agreement as the “User”, or the “Retailer,”, and SwapRetail and the Retailer may each be referred to as a “Party” or, collectively, as the “Parties.”
SwapRetail is a third party logistic provider assisting Brands in moving non-performing merchandise between their authorized retailers, and delivering data analysis and reporting. SwapRetail’s Services connect authorized Retailers seeking to anonymously buy, sell, and swap clothing, apparel, accessories, shoes, home goods, and any other product lines (collectively "Goods"). A “Retailer” means any store that is authorized by a Brand to purchase at wholesale and sell the Brand’s Goods at retail. A “Brand” means a company who manufactures and owns or licenses the legal trademark for the Goods being produced for sale to Retailers and consumers.
Goods and Content.
Each Retailer represents and warrants that, with respect to any Goods that it sells hereunder (including, without limitation, via a Swap Transaction): (i) it is an approved authorized reseller of the applicable Brand’s merchandise or goods, and that it is not violating any purchase order terms or other agreement with such Brand (collectively, “Brand Agreements”) by selling such Goods pursuant to this Agreement; (ii) it has purchased and paid, or will satisfy all payment terms with such Brand for such Goods; (iii) such Goods are authentic, new, first-quality, saleable merchandise and include all of their original labeling; (iv) all information it provides with the Goods shall be true and accurate; (v) it has all necessary licenses and approvals to provide SwapRetail with any photos, descriptions or other content it provides with respect to the Goods (collectively, “Content”) and for SwapRetail to publish such Content on the Services; and (vi) none of the Content shall violate the intellectual property, privacy or other rights of third parties. Neither the Retailer purchasing such Goods (including, without limitation, via a Swap Transaction), nor SwapRetail, shall incur any obligation to comply with the terms and conditions of any Brand Agreement, or liability for violating the same. SwapRetail is not affiliated nor does it represent any Brand and is solely a third party logistics provider exclusively assisting retailer to retailer transactions. Each Retailer acknowledges that by transacting on SwapRetail, SwapRetail is released from all liability with respect to the Goods and is not responsible for any Goods transacted through the Services. A “Brand” means a company that manufactures and owns the legal trademark for the Goods being produced for sale to Retailers and consumers.
Methods of Transaction.
SwapRetail offers two methods of transactions:
Swap Transaction. A “Swap Transaction” occurs when an authorized Retailer utilizes the SwapRetail platform to anonymously swap Goods of a certain Brand with another authorized Retailer of the same Brand in order to move the Goods and receive new Goods in-store.
Purchase/Sale Transaction. A “Purchase/Sale Transaction” occurs when Retailers agree to purchase or sell Goods anonymously through the SwapRetail Platform to other Retailers who are both authorized resellers of that Brand. In a Purchase/Sale Transaction, the Retailer selling Goods is sometimes referred to herein as the “Seller” and the Retailer purchasing Goods is sometimes referred to herein as the “Buyer.”
How SwapRetail Works with Retailers.
Step 1. Listing. A Retailer will contact SwapRetail to list a Good, or directly list a Good, on the Services. By listing Goods on the Services, the Retailer is making a binding offer to sell the Goods to any Retailer who requests to purchase the Goods for cash; each Retailer has the right to deny swap requests at its discretion. A Retailer may modify or delete their listings at any time until the Goods have sold. SwapRetail does not guarantee that Goods will sell or be requested for swap. SwapRetail will not for any reason provide compensation for Goods that do not sell even if due to site availability from an outage, or maintenance or listing delays.
Step 2. Pricing. Retailer understands and agrees that all prices provided by SwapRetail are listed at the Brand’s wholesale cost according to the Brand’s price lists published from time to time. If a Retailer is listing a Good that does not have pricing information listed on the Service, they agree to list it at the cost by which they purchased it from the Brand.
Step 3. Agreement. Retailers shall be held to this Agreement regarding all listings, and orders entered into via the Services, including (without limitation) via Website, Mobile App, Email at email@example.com, or by phone at (347) 509 - 7927. Retailers will agree to a Swap or Purchase/Sale Transaction through the Services, including (without limitation) via Mobile App, Website, on the phone or by Email. SwapRetail has the discretion to fulfill partial Transactions if SwapRetail is only able to obtain a partial fulfillment pursuant to the Agreement.
Step 4. Parties Approval and Payment. Both Parties will approve the Transaction and agree to terms and make prompt payment through the Services, including (without limitation) Website, Mobile App, or over the phone. “Prompt Payment” shall mean no later than forty-eight hours (48) hours after a transaction has been approved. In a Swap Transaction, if payment has been made by one Retailer and is not made by the second Retailer within 48 hours, the first Retailer will have the option to cancel the transaction without a penalty.
Step 5. Shipping.
Purchase/Sale Transaction. In a Purchase/Sale Transaction, once the Seller approves the Purchase Request, the Seller and Buyer are contractually bound to deliver the exact Goods within the required delivery timeframe; the Goods must be properly packaged (as specified in this agreement) within twenty-four (24) hours or shipped out within (2) two business days.
Swap Transaction. In a Swap Transaction, after SwapRetail receives Prompt Payment from each Retailer, SwapRetail will issue a shipping label to each Retailer in order to pick up the packaged Goods that are specified in the transaction. Each Retailer shall have the Goods properly packaged (as specified in this agreement) within twenty-four (24) hours of making Prompt Payment.
Standard shipping service shall be via Federal Express Ground unless otherwise instructed by a Retailer. Additional charges may apply for expedited or international shipping as requested by a Retailer.
Should the Retailer find the Goods do not meet the requirements for condition of Goods set forth in Section 5 below and notifies SwapRetail of its intention to not accept the Goods, the Retailer can file a notice of claim as provided under Section 5 herein. If SwapRetail finds that there is not a reasonable basis for the Retailer to not accept the Goods, SwapRetail will deny the request to return the swapped Goods, and will not issue a refund for payment made for the purchased Goods. Further, if SwapRetail determines that the Retailer acted in bad faith, it shall have the right to cancel, suspend, or terminate the Retailer’s account as provided in this Agreement.
Step 6. Payout. Payments due to Retailers from orders processed through SwapRetail (“Payout” or “Payouts”) will be paid to Retailer by bank transfer within three (3) business days from receipt of delivery of the Goods to the acquiring Retailer. Payouts are processed through Stripe. Each Retailer must provide their individual, business and banking credentials on the Mobile App or Website in order to receive the Payout. If an RA is requested and it is authorized in the sole discretion of SwapRetail, the Retailer at fault will be charged the return shipping costs.
Transaction Fee for Swap Transactions. For Swap Transactions, SwapRetail shall receive a Five Percent (5%) transaction fee from each Retailer which is to be calculated on the value of the Goods they are swapping out. The Retailers are responsible for the shipping costs of the Goods they are receiving.
Transaction Fee for Purchase/Sale Transactions. For Purchase/Sale Transactions, SwapRetail shall receive a Ten Percent (10%) transaction fee from the Buyer which is to be calculated on the total value of the Goods. The Purchasing Retailer is responsible for the shipping costs of the Goods they are receiving. There is no cost or fees due to the Seller in a Purchase/Sale transaction.
Reconciliation of Unequal Swap Transactions. Any Party that receives a greater value of Goods in a Swap Transaction shall be responsible to pay the difference through SwapRetail to the other Party in US Dollars. SwapRetail will provide the calculation of this reconciliation to both Parties and include the differences owed/due on the invoice to be Promptly Paid.
Timing and Method of Payment. Payment shall be made as required under Section 3 above. All Parties selling Goods must have a business bank account to receive payment for said Goods. All Parties purchasing or entering into Swap Transactions must have a valid credit card on file and pay all fees and applicable taxes associated with SwapRetail’s Services by the payment due date. If a Retailer’s payment method fails or the Retailer’s account is past due, SwapRetail may collect fees owed by charging other payment methods on file with SwapRetail, retaining collection agencies and legal counsel. If the credit card on file is expired, the Retailer may experience account suspension, and will be charged late fees. SwapRetail, or any collection agencies retained, may also report information about a Retailer’s account to credit bureaus, and as a result, late payments, missed payment, or other defaults on a Retailer’s account may be reflected in its credit report.
Condition; Rights of the Parties in Event of Defects, Damages, or Unfit Goods and Duty of Inspection.
Condition of Goods.
The contractual Goods must exhibit the agreed condition as provided in the listing agreement. Unless otherwise stated, the Goods are expected to be in new condition and never worn or used and shall not be damaged (possessing dirt, makeup, excessive wrinkles, etc.), defective (discoloration, fabric pull, loose threads, missing pieces, etc.), or possessing any fit issues (unfit goods). Minor deviations in structure and color compared to the agreed condition are, however, reserved, insofar as these lie in the nature of the materials used and are usual in the trade. Information on the Website, Mobile App, and other information material provided to all Parties by SwapRetail as well as information describing products must not, under any circumstances, be taken as guarantees for a particular condition of the contractual products; such guarantees require to be agreed upon in writing to be effective.
Packaging of Goods.
Retailers agree to package goods in the following manner:
each Good must be inspected, and if any Good is found to be damaged, defective, or unfit, SwapRetail must be contacted immediately at firstname.lastname@example.org to remove the Good from the transaction;
each Good is to be hung on a separate hanger and placed in a separate plastic garment bag;
if the Good has sleeves, they must be crossed over one another in front;
the Goods must be bi-folded or tri-folded in the box that is in good condition (no holes, excessive tape, or wear and tear), and appropriate sized; no box shall be smaller than 18” x 12” x 2”;
The packing slip must be printed, filled out, signed and enclosed in the box;
the box must be taped on ALL sides with the SwapRetail order number written on top of the box for Federal Express to properly identify.
Duty of Inspection.
The rights of the Parties due to any defects, damages, or unfitness in the Goods require each Party to check the Goods immediately following delivery and to promptly inform SwapRetail of defects, and no later than two (2) days following delivery. SwapRetail must be informed of any defects via the Mobile Application or via email at email@example.com, and the Retailer shall include in in it the brand name, the season, year, product code, color, size, and price along with pictures and a description of the defect, damages, unfitness of the Good.
SwapRetail Right to Inspection and Processing of Claim.
Upon receipt of a notice of defect, damage, or unfitness (the “Unfit Good”) SwapRetail will use commercially reasonable efforts to review, inspect, and process the claim within three (3) business days. If SwapRetail finds the claim to be justified, then SwapRetail will authorize the claimant to return the Unfit Good to the issuing Retailer. The issuing Retailer shall incur the cost of the Unfit Good and will also be responsible for all shipping costs of any returns. Nothing herein allows the Claimant to unwind the entire transaction should one good of a multi-good shipment shall be found to include an Unfit Good. The other “fit” goods shall remain with each Retailer.
In the case of Purchase/Sale Transaction, should the issuing Retailer be found to have sent an Unfit Good, the purchasing Retailer shall return the Unfit Good to the selling Retailer, and receive a full refund. The selling Retailer shall be responsible for all return shipping costs and will be charged a forty-five dollar ($45) transaction fee and the 10% transaction fee calculated by the total value of Goods purchased to be paid to SwapRetail.
Liability of SwapRetail.
SwapRetail is not liable for the condition, defect, unfitness, or any other physical aspect of any Good transacted on the Services. The Parties agree to release and waive SwapRetail from any claims whatsoever related to the Goods including (without limitation) any product liability claims or any claims from any Brand related to the purchase, sale or swap of such Goods.
Liability of Brands.
The Brand is not liable for the condition, defect, or any other physical aspect of any Good transacted on SwapRetail’s website or mobile application, or by any other method. The Parties agree to release and waive all manufacturers, distributors, showrooms and independent representatives affiliated with the Brands from any claims whatsoever related to the Goods. The Retailer will not request that any Brand return or exchange any of the Goods transacted through SwapRetail.
Returns and Cancellations.
All Swap and Purchase/Sale Transactions are final. No returns or cancellations of transactions shall be permitted.
When listing a Good, the Retailer agrees that it is responsible for the accuracy and content of the listing and Good offered; and the listing content does not violate any indecency standard. The Retailer also acknowledges that it is an authorized retailer of the Brand being listed for swap and/or sale on the Website or Mobile App.
When buying a Good, the Retailer agrees to that it is responsible for reading the full Good listing before making a commitment to purchase; the Retailer enters into a legally binding contract to purchase a Good when it commits to buy a Good; SwapRetail does not transfer legal ownership of Goods from the seller to the buyer; and Uniform Commercial Code §2-401(2) apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
IRS Reporting Regulations on Third-Party Payment Transactions. Due to Internal Revenue Service (IRS) regulations, U.S. third-party settlement organization and payment processors, including SwapRetail, may be required to file Form 1099-K for U.S. taxpayer sellers who receive payments for the sale of goods or services through SwapRetail. SwapRetail may be required to report gross payments received for sellers who receive over $20,000 in gross payment volume AND over 200 separate payments in a calendar year. In order to better understand these information reporting obligations, SwapRetail recommends all Parties consult with their tax advisor to assess tax implications for Form 1099-K reporting. Whether or not you receive a form from SwapRetail, it remains the responsibility of each Party to determine what amount to report as taxable income on its income tax return.
International Taxpayers. IRS regulations require non-U.S. taxpayers to provide Form W-8BEN to SwapRetail in order to be exempt from U.S. tax reporting requirements.
Resale Tax License. In order to qualify for a tax exemption, it is a Party’s responsibility to adequately prove that they meet the exemption requirements for that transaction – generally in the form of an exemption certificate which meets that state's and local municipality’s requirements. A Party must retain (and file) a copy of that Party’s exemption documentation to substantiate the exemption as without the documentation, the sale is deemed taxable.
Miscellaneous. SwapRetail is not responsible in any way for the accuracy or suitability of any payment of any applicable taxes on a Party’s behalf. We do not collect taxes on any sales. It is the responsibility of each Party for collecting and remitting any and all applicable international, federal, state, or municipal taxes in connection with its transactions. It is the Party’s responsibility to determine what, if any, taxes apply to the payments it receives, and it is the Party’s responsibility to collect, report and remit the correct tax to the appropriate tax authority.