This Terms of Service Agreement (“Agreement”), effective as of the account creation date (“Effective Date”) is entered into by and between Beckett Collectibles, LLC, a North Carolina limited liability company with an office at 2700 Summit Ave, Plano, TX 75074 (“Beckett,” “we,” or “us”), and the account creator (“You”).
Whereas, Beckett provides storage related services for sports memorabilia and other collectibles;
Whereas, You own certain tangible assets and wish to transfer custody of such assets to Beckett for storage; and
Whereas, the parties understand that this Agreement governs only the transfer of Collectibles to Beckett for custodial storage, and all other services that maybe provided by Beckett with regard to the Collectibles, including marketing services, will be governed by a separate agreement to be entered into between the parties;
Now,therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Appointment. You hereby appoint Beckett as the custodian of all tangible assets that You deliver or have delivered to Beckett (the “Collectibles”) to perform the services (“Services”) set forth below. For clarity, You retain all right, title and interest in and to the Collectibles under this Agreement.
2. Becketts Responsibilities.
2.1. Storage. Beckett will intake, store, and secure the Collectibles at Beckett’s facility ("Warehouse") located at 2700 Summit Ave, Plano, TX 75074; provided, however, that Beckett, in its sole discretion, may transfer the Collectibles to its other facilities for storage. Beckett will photograph and otherwise document the Collectibles upon receipt. The “Deposit Date” is the date that Beckett takes receipt of the Collectibles. The “Withdrawal Date” is the date the Collectibles are (i) shipped by Beckett to You, or a new owner, if the Collectibles have been sold, or (ii) picked up by You from the Warehouse. Beckett will bear all risk of loss to the Collectibles from and after the Deposit Date until the Withdrawal Date.
2.2. Authentication. Beckett will use reasonable commercial efforts to authenticate the Collectibles on or around the Deposit Date. You may be required to provide additional information in order for Beckett to authenticate the Collectibles. If Beckett in its sole discretion determines the Collectibles are inauthentic or not as described, Beckett will notify You within seven (7) calendar days, and will ship such Collectibles back to You at Your sole expense within 30 calendar days of such notification. If You dispute the authenticity of the Collectibles, Beckett in its sole discretion may keep the Collectibles in its Warehouse and attempt to resolve the dispute, or ship the Collectibles back to You at Your expense.
2.3. Standard of Performance. Beckett agrees to use industry standard measures to ensure the physical integrity and security of the Collectibles while stored at a Warehouse against theft, destruction, and other harm.
2.4. Insurance. Beckett agrees to maintain an insurance policy covering the Warehouse with a coverage amount sufficient to cover the Collectibles up to their fair market value at the Deposit Date. Upon receipt of the Collectibles, Beckett will use reasonable commercial efforts to determine a fair market value, and such value will be communicated to You at the Address for Notice set forth below within 30 calendar days of the Deposit Date.
2.5. Withdrawal. You may choose to withdraw the Collectibles at any time upon written notice to Beckett. You can elect to (i) pick up the Collectibles at the Warehouse, or (ii), if the value of the Collectibles is determined by Beckett to be less than USD$250,000, have Beckett ship the Collectibles to the address You provide within  calendar days. If Beckett ships multiple items, they may arrive in separate packages. If You want the Collectibles shipped to You, Beckett will provide You with shipping and insurance quotes and invoice You the cost pursuant to Section 5.2.
3. Your Responsibilities.
3.1. Delivery. Delivery of the Collectibles to Beckett is solely Your responsibility, and You bear all risk of loss to the Collectibles until they are actually delivered to Beckett. A signature upon delivery will be required for any packages with a value greater than USD$5,000.
3.2. Insurance. You are solely responsible for all insurance coverage for Collectibles while in transit to Beckett or from Beckett to you in accordance with Section 5.2.
3.3. Alternate Contact. To avoid issues with picking up or having the Collectibles delivered to you or an heir, beneficiary, trustee or guardian in the event of Your incapacity or death, we recommend that you provide us with the name and address of the person (“Alternate Contact”) who may take receipt of the Collectibles in such circumstances. You acknowledge and agree that, if you do not provide an Alternate Contact, Beckett will handle the Collectibles in accordance with applicable law in the event of your death or incapacity. For your protection, we require the designation of an Alternate Contact to be certified by a notary public.
4. Grant of Rights. You hereby authorize Beckett to: (a) compile data (“Data) about the Collectibles while the Collectibles are in our possession, including, without limitation, data regarding sales, identity, grading and authentication; and (b) take photographs and make audiovisual recordings of the Collectibles (collectively, “Recordings”). You hereby grant Beckett a nonexclusive, worldwide, royalty-free, sublicensable license to use Data and Recordings for Beckett’s general purposes, subject to us acquiring any necessary third-party rights, including to: (i) reproduce Data and Recordings on computer servers under control by or on behalf of us; (ii) publicly, display, publicly perform, reproduce and distribute the Data and Recordings; and (iii) use the Data and Recordings to advertise, market and promote our services and the Collectibles.
5.1. Storage Fees. Beckett will store and maintain custody of the Collectibles free of charge for the first year, beginning on the Deposit Date. Thereafter, You hereby agree to pay Beckett USD$ per [year] for storage and custodial management. If You should fail to pay the Storage Fees as and when due, Beckett may return the Collectibles to you at the Address for Notice set forth below at your sole expense.
5.2. Shipping Fees. You hereby agree to pay all fees associated with shipping the Collectibles, both to and from Beckett. All shipping and handling fees from Beckett to you (or a subsequent purchaser), including insurance for shipping, must be paid in full in advance.
6. Term and Termination.
6.1. Term. This Agreement will remain in effect from the Effective Date until the Collectibles are delivered back to You or they are purchased by another buyer, whichever happens first.
6.2. Termination. Either party may terminate this Agreement upon written notice to the other party. Beckett may terminate this Agreement immediately if you fail to pay any Storage Fees or Shipping Fees within 30 days of presentment of an invoice for such fees.
6.3. Termination. In the event this Agreement is terminated, all Collectibles will, upon written notice to You, either be shipped to You within 30 calendar days at Your sole expense or, if Beckett determines the value of the Collectibles is greater than USD$[250,000], be made available for pick up at the Warehouse. IF YOU FAIL TO PAY STORAGE FEES AS AND WHEN REQUIRED FOLLOWING NOTICE FROM BECKETT, BECKETT RESERVES THE RIGHT TO DISPOSE OF THE COLLECTIBLES IN ACCORDANCE WITH APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, THE SALE OF ANY COLLECTIBLES. IN THE EVENT OF SUCH SALE, THE AMOUNTS REMAINING AFTER PAYMENT OF OUTSTANDING STORAGE FEES WILL BE SENT TO YOU AT YOUR LAST KNOWN ADDRESS ON RECORD WITH BECKETT. NO SALE OF COLLECTIBLES WILL OCCUR EARLIER THAN [90 DAYS] FOLLOWING NOTICE TO YOU OF UNPAID STORAGE FEES.
7. Warranties and Disclaimers.
7.1. Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (iii) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2. Additional Warranties. You further represent and warrant that You have valid title to the Collectibles, and that Beckett’s performance under this Agreement does not violate any laws or third-party rights.
7.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, BECKETT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BECKETT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, BECKETT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BECKETT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
8. Limitations of Liability.
8.1. Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BECKETT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF BECKETT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL BECKETT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE FAIR MARKET VALUE OF THE COLLECTIBLES UPON THE DEPOSIT DATE, AS COMMUNICATED TO YOU.
8.3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BECKETT TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. Indemnification. You hereby agree to defend, hold harmless, and indemnify Beckett, our affiliates, and each of our respective officers, directors, employees, and agents from and against any and all liabilities, losses, damages, claims, costs, expenses, awards, judgments and penalties (including reasonable attorneys’ fees) arising out of or resulting from third-party claims in connection with Your ownership of the Collectibles.
10. Miscellaneous. It is the express intention of the parties the Beckett perform the Services as an independent contractor. This Agreement is governed by the laws of the State of Texas, excluding its choice of law rules. Any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in Dallas County, Texas, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts. Any notice, demand or request given or made under this Agreement will be in writing and will be deemed given or made when delivered in person, when sent by U.S. registered or certified mail, or postage prepaid, to a party at its address specified below. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. If provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the invalid provision will be severed from the remaining provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.