CONSIGNOR’S CONDITIONS OF BUSINESS
1. Introduction:
1.1. These Consignor’s Conditions of Business (the “Conditions”) outline the contractual relationship and obligations between RMS (as defined on page 1 of the Auction Consignment Agreement) and the consignor of the Lot(s) (the “Consignor”) in relation to the auction of the Consignor’s Lot(s) in an RMS auction.
1.2. Please ensure that you read and understand these Conditions prior to consigning a Lot(s).
1.3. RMS’ contractual relationship with the Consignor is governed by:
1.3.1. These Conditions;
1.3.2. The Auction Consignment Agreement (which includes the Specific Information and Specific Conditions);
1.3.3. The Conditions of Business displayed in the auction salesroom;
1.3.4. The Conditions, notices, or addendums displayed on RMS’ website; and
1.3.5. In each case as amended by any salesroom notice or auctioneer’s announcement at the auction.
(clauses 1.3. to 1.3.5. collectively, the “Contractual Obligations”)
1.4. As auctioneer, RMS acts as an agent for the Consignor.
2. RMS Receiving Lot(s) in Trust: Any consigned Lot(s) is delivered to RMS in trust under the exact terms set forth in these Conditions. RMS agrees to receive the Lot(s) in trust and agrees not to permit its use for any other purposes, other than those contained in these Conditions, without the express written consent of the Consignor.
3. Services: RMS agrees to act as an agent for the Consignor and may provide services including a sale facility, clerks, support staff, advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the Lot(s) as to (a) consulting any expert either before or after the auction, (b) researching the provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the Lot(s), and (e) any other services required to conduct the auction of the Lot(s).
4. Commissions:
4.1. If the Lot(s) is sold, unless otherwise listed in the Specific Information or the Specific Conditions of the Auction Consignment Agreement, the Consignor agrees to pay RMS a Seller’s Commission as outlined below on the Hammer Price (the last accepted bid is the Hammer Price (“Hammer Price”)) of the Lot(s) (“Seller’s Commission”).
4.1.1. RMS will retain a Seller’s Commission of 10% on all motor car lots.
4.1.2. RMS will retain a Seller’s Commission of 20% on all non-motor car lots including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, and clothing.
4.2. Further, the Consignor acknowledges that RMS will collect a standard Buyer’s Premium from the winning bidder (the “Buyer”) of the Lot(s) in question, based on the Hammer Price of the Lot(s). Please note that the standard Buyer’s Premium may change from time to time at the discretion of RMS if the standard Buyer’s Premium for the auction changes. To be clear, the standard Buyer’s Premium will be published as part of Bidder’s Conditions of Business in advance of the auction. For purposes of clause 22 (Withdrawn Lot(s)) of these Conditions, the Buyer’s Premium shall be 15% for motor car lots and 20% for non-motor car lots on the (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
5. Marketing Fee: The marketing fee is non-refundable and is not credited towards the Seller’s Commission.
6. Expenses and Fees: Expenses and fees as outlined in these Conditions include, but are not limited to, marketing fees, transportation fees, duty, storage fees, insurance, taxes, Title Fees, and battery replacement fees (collectively, the “Expenses and Fees”). The Consignor agrees and acknowledges that the credit card provided in the Specific Information of the Auction Consignment Agreement will be charged for the applicable Expenses and Fees.
7. Proceeds to Consignor:
7.1. As used in these Conditions, a “Sale” occurs between the Consignor and the Buyer when the hammer or equivalent device or mechanism drops on the Hammer Price or when the auctioneer awards the Lot(s) to the highest bidder (“Sale”).
7.2. As an accommodation to the Consignor, RMS agrees to act as an intermediary between the Consignor and the Buyer for the Sale by accepting the purchase price from the Buyer and transferring the amounts due to the Consignor under these Conditions (“Proceeds”). If (i) the Lot(s) is sold by RMS during the term of these Conditions and (ii) there is no claim or Dispute raised by the Buyer, then RMS will make reasonable efforts to disburse the Proceeds within 21 business days after the purchase price has been received in cleared funds by RMS from the Buyer.
7.2.1. Notwithstanding the above, if a Lot(s) is currently being used as collateral with Sotheby’s Financial Services, Inc. (“SFS”), RM Sotheby’s Financial Services, or any other third party who has a encumbrance on the Title to the Lot and/or against the Consignor (collectively, the “Lienholder”), RMS will first pay any Proceeds to the Lienholder. Specifically, where SFS is the Lienholder, applicable Proceeds will be paid to and held by SFS until such Proceeds are applied pursuant to clause 4 (Application of Payments) of the Standard Terms and Conditions of the Consignor’s Loan and Security Agreement with SFS.
7.3. The Consignor authorizes RMS to release the Lot(s) to the successful Buyer upon RMS receiving full payment from the Buyer or financing terms are agreed to with RMS.
7.4. Before payment of any money due to the Consignor is to be made, the Consignor agrees to provide RMS with the documents necessary to transfer the Ownership of the Lot(s) to the Buyer. Thereafter, the Consignor agrees to provide any cooperation that RMS, in its sole discretion, deems necessary to transfer such Ownership, Title, or registration to the Buyer.
7.5. If RMS in its sole discretion has reason to believe or is notified of the (i) Consignor’s breach of the Contractual Obligations, (ii) alleged breach of the Contractual Obligations, (iii) Consignor’s actions could potentially cause RMS liability, and/or (iv) Buyer raises concerns regarding the Lot(s) originality, character, features, condition, correctness, authenticity, or history or description (collectively, the “Dispute”), RMS, at its sole discretion, may withhold payment to the Consignor until the Dispute has been resolved; further, RMS may deduct any sums that are due to it from the sum held.
8. Reserve:
8.1. The Reserve noted in the Specific Information of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor. If there is no Reserve, indicate clearly by writing “N/A”, “NONE”, or otherwise striking through in the space provided in the Specific Information of the Auction Consignment Agreement.
8.2. The Reserve may be lowered at any time by the Consignor, either verbally or in writing, but it may not be raised.
8.3. If the Lot(s) are sold at the Reserve, the Consignor’s Proceeds are the Reserve less (i) applicable Expenses and Fees and (ii) applicable Seller’s Commission as agreed to in the Auction Consignment Agreement.
8.4. RMS has the right to sell a Lot(s) at a price below the agreed verbal or written Reserve, provided that the Consignor receives the same net Proceeds under clause 8.3 as the Consignor would have received had the Reserve been met.
8.5. When a Lot(s) is sold subject to a Reserve, the auctioneer may bid on the Consignor’s behalf up to and including an amount not to exceed the amount of the Reserve.
8.6. If RMS contributes to the Hammer Price to meet a Reserve, the Reserve for the respective Lot(s) becomes the Hammer Price plus RMS’ contribution for purposes of commissions.
9. Exclusivity:
9.1. The Consignor grants to RMS the exclusive right and authority to advertise and sell the Lot(s) for a period beginning with the date of these Conditions and ending 90 business days following the auction that the Lot(s) was offered in.
9.2. If the Lot(s) is sold by the Consignor to another party during the exclusivity period of the Auction Consignment Agreement and, RMS has not agreed otherwise in writing, the Lot(s) will then be considered “withdrawn” from the auction by the Consignor, and the Consignor agrees to abide by clause 22 (Withdrawn Lot(s)) of these Conditions.
9.3. If the Lot(s) does not sell at the auction at which it was offered, the Consignor grants RMS the authority for up to 90 business days after the auction to (a) list the Lot(s) for Sale on RMS’ Private Sales website, (b) advertise, in other media at RMS’ discretion, the Lot(s) for Sale, and (c) if there was a Reserve agreed to between the parties, unilaterally sell the Lot(s) for an amount equal to or greater than the Reserve.
10. Title, Registration Documents, and/or Appropriate Documents Evidencing Chain of Ownership to Lot(s):
10.1. It is the absolute requirement of the Consignor that they provide any and all titles, registration documents, or appropriate documents evidencing the Consignor’s ownership and/or government registrations (such as Purchase Agreements and Bills of Sale) (“Titles”) to the Lot(s) to RMS prior to the auction of the Lot(s).
10.2. The Consignor warrants that the Consignor is the sole owner of the Lot(s), and that the Consignor has full right and authority to sell the Lot(s) (“Ownership”).
10.3. The Consignor agrees to provide RMS with a good, clear, and transferable Title to the Lot(s) in advance of the auction.
10.3.1. If for whatever reason RMS is forced to correct any Title defect, the Consignor agrees to first pay RMS a minimum fee of $500.00 USD and, if the Title defect costs more than $500.00 USD to correct, the Consignor agrees to pay for any and all additional reasonable expenses related to correcting such defect (“Title Fees”). The Title Fees will be deducted from the Consignor’s Proceeds.
10.3.2. In cases where pre-existing Titles do not exist and insurance bonds are necessary, the Consignor will be charged Title Fees on a case-by-case basis.
10.4. In order to facilitate and transfer the Title for the Lot(s), the Consignor agrees to sign the Power of Attorney attached to the Auction Consignment Agreement.
10.5. THE CONSIGNOR WILL INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEY FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF OR ARISING OUT OF ALL MATTERS RELATED TO THE OWNERSHIP AND TITLES.
11. Non-Payment by Buyer:
11.1. In the event of non-payment by the Buyer, RMS will endeavor to use reasonable efforts to enforce payment from the Buyer; however, RMS shall not be liable to the Consignor for payment. If the Buyer does not pay RMS, then at RMS’ sole discretion, RMS may cancel the Sale and return the Lot(s) to the Consignor, enforce payment by the Buyer, or take other actions permitted by law. Notwithstanding the preceding sentences, if RMS has paid any portion of the purchase price to the Consignor, but the purchase price has not been collected from the Buyer of the Lot(s), the Consignor hereby agrees, simultaneously with such payment, to assign to RMS any and all rights that the Consignor may have against such Buyers to the extent of such payment, whether at law, in equity, or under the Contractual Obligations. The Consignor agrees to execute any documents reasonably necessary to evidence this assignment, including with respect to the Consignor’s written statements (in any and all mediums) made, warranties and indemnities as set forth in these Conditions. The Consignor authorizes RMS, at RMS’ sole discretion, to impose on any Buyer, and retain for RMS’ account, a late charge if payment is not made in accordance with the Contractual Obligations.
11.2. In the event of a non-payment, the Consignor will INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO THE LOT(S), THE NON-PAYMENT, OR RMS ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 11.1.
12. Lot(s) Description:
12.1. The Consignor will provide applicable information as outlined in the Lot(s) Description Requirements attached to the Auction Consignment Agreement.
12.2. The Consignor is required to review and approve any and all descriptions within 48 hours of receiving the description from RMS.
12.3. If, for whatever reason, RMS has not received an approval of the Lot(s) description from the Consignor at least 3 business days prior to the auction, RMS reserves the right to deem such description approved by the Consignor or cancel the Sale of the Lot(s) outlined in clause 18 (Cancellation/Rescission of Lot(s)).
12.4. If RMS cancels the Sale of the Lot(s) due to the obligations in clause 12.2 not being fulfilled, the Consignor will:
12.4.1. pay RMS any and all Expenses and Fees incurred by RMS assigned to the Lot(s); and
12.4.2. will be responsible to pay RMS a 10% commission on the Lot(s) (a) Reserve; or (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no Reserve and no published low estimate, then the Lot’s fair market value as determined by RMS.
12.5. The Consignor agrees to accept sole responsibility and liability for any oral or written statements (in any and all mediums) made by RMS that accurately repeat the information supplied by the Consignor as to the originality, character, features, condition, correctness, authenticity, or history of the Lot(s), and the Consignor will INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO THE LOT(S), THE LOT(S) DESCRIPTION, OR RMS’ OFFERING, AUCTION, OR SALE OF THE LOT(S).
13. Lot(s) Operation:
13.1. The Consignor warrants that the Lot(s) is in a safe, operable condition to be driven or moved by RMS’ employees or representatives. The Consignor acknowledges that, should RMS, at RMS’ sole discretion, determine that the Lot(s) is not safe to operate or move, RMS may rescind the consignment of the Lot(s) from the auction.
13.2. The Consignor authorizes RMS to perform minor work on the Lot(s) to facilitate the Lot(s) starting and driving or being presentable for Sale. THE CONSIGNOR WILL INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO ANY DAMAGE OR LIABILITY CAUSED BY THE MINOR WORK PERFORMED BY RMS’ STAFF ON THE LOT(S).
14. Drivers: The Consignor acknowledges and grants permission for RMS and its employees and agents to drive or move the Lot(s) from time to time before, during, or after the Sale. THE CONSIGNOR ACKNOWLEDGES THAT IT IS THE CONSIGNOR’S RESPONSIBILITY TO MAINTAIN SUFFICIENT INSURANCE COVERAGE TO PERMIT SUCH DRIVING OR MOVING, AND THE CONSIGNOR SPECIFICALLY AGREES TO INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO SUCH DRIVING OR MOVEMENT OF THE LOT(S).
15. Video and Photoshoot of Lot(s):
15.1. The Consignor acknowledges and grants permission for RMS and its employees, agents, and third-party contractors to drive or move the Lot(s) from time to time for the purpose of a video and/or photoshoot prior to the auction of the Lot(s).
15.1.1. In circumstances where (i) the Consignor is driving their own Lot(s) in a marketing event RMS organizes and / or (ii) there is any movement of a Consignor’s Lot(s) for marketing purposes that RMS organizes, the Consignor will be required to:
15.1.1.1. Maintain adequate property insurance on the Lot(s) while it is being driven or moved for the purposes of the video and/or photoshoot;
15.1.1.2. Inform their insurance company that it will be driven or moved for the purposes of the video and/or photoshoot;
15.1.1.3. Provide RMS with a Certificate of Insurance that is in good standing evidencing coverage until the end of the video and/or photoshoot listing RMS as a primary loss payee; and
15.1.1.4. If the Consignor is driving the Lot(s), provide RMS with a copy of their valid driver’s license or similar government identification.
15.2. THE CONSIGNOR ACKNOWLEDGES THAT IT IS THE CONSIGNOR’S RESPONSIBILITY TO MAINTAIN SUFFICIENT INSURANCE COVERAGE TO PERMIT SUCH DRIVING OR MOVING AT THE A VIDEO AND/OR PHOTOSHOOT, AND THE CONSIGNOR SPECIFICALLY AGREES TO INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO SUCH DRIVING OR MOVEMENT OF THE LOT(S) AT THE A VIDEO AND/OR PHOTOSHOOT.
16. No-Sale of Lot(s):
16.1. If there is a no-sale, any and all Expenses and Fees owing must be paid to RMS before the Lot(s) is released to the Consignor.
16.2. If there is a no-sale, the non-sold Lot(s) must be removed by the Consignor from the auction site or the secure storage facility by 5:00 p.m. of the next business day in the jurisdiction where the auction was held or such other period that RMS may designate (“Removal Deadline”).
16.3. Contingent upon clause 16.1 being satisfied, the Lot’s Title (as long as the Consignor does not owe RMS any money) will be returned to the Consignor either (i) upon expiration of the exclusivity period of the Auction Consignment Agreement or (ii) after commissions have been paid for the withdrawal of the Lot(s) (as outlined in clause 22 (Withdrawn Lot(s)).
16.4. If the Removal Deadline is not met, the Consignor will be required to pay (i) a removal fee of up to $1,000.00 USD and (ii) a daily storage fee of up to $50.00 USD per Lot(s) until full payment and instructions for transport have been received. Please note it is the Consignor’s responsibility to insure their Lot(s) whilst in storage.
16.5. If the Consignor has not removed their Lot(s) from the storage facility within 6 months of the auction date, RMS has the right to enter the Lot(s) into an auction at no reserve or to sell it via private sale for fair market value. Once sold, RMS will retain all reasonable Expenses and Fees including, auction fees if sold via auction, and if sold via private sale, a 20% commission; if there are any remaining funds, these will be returned to the Consignor within 30 business days of the Sale.
16.6. RMS shall have the right to exercise a charge or lien on the non-sold Lot(s) or any other property belonging to the Consignor in the possession of RMS if the Consignor owes RMS money, and to apply any money due or to become due to the Consignor to the outstanding money the Consignor owes to RMS.
17. Cancellation/Rescission of Auction:
17.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the auction and will not be liable to the Consignor for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
17.1.1. Force majeure events, including but not limited to:
17.1.1.1. Any natural disaster that, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form;
17.1.1.2. Structural damage to the auction venue prior to the auction that, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form; and
17.1.1.3. Any terrorist event, pandemic (including resulting governmental restrictions), war, as well as any “guideline” or “recommendation” by government (local, state/province, federal/national) and/or accredited health organizations (including the World Health Organization) that, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form.
17.1.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the auction that necessitate or make prudent a cancellation.
17.2. If the auction is cancelled for any of the reasons outlined in this clause, RMS has the right-of-first refusal to consign and sell the Lot(s) for up to one year from the date of cancellation. If the Consignor has an opportunity to place the Lot(s) in an auction or sell via private sale, RMS has the right to meet the economic terms of the opportunity and sell on behalf of the Consignor for up to 5 business days from the Consignor providing notice.
18. Cancellation/Rescission of Lot(s):
18.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the Sale of a Lot(s) and will not be liable to the Consignor for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
18.1.1. RMS opines that the Lot(s) has been intentionally or materially misrepresented by the Consignor;
18.1.2. RMS opines that physical damage to the Lot(s), which cannot be sufficiently repaired prior to the auction, occurred after these Conditions were signed;
18.1.3. RMS is served with a lawsuit or threatened with a Dispute from a third party in relation to the Lot(s);
18.1.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot(s);
18.1.5. Material issues regarding the Title, registration, or transfer of Ownership that cannot be reasonably cured or RMS believes would expose it to claims or Disputes from a third party;
18.1.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot(s) that cannot be reasonably cured or RMS believes would expose it to claims or Disputes from a third party;
18.1.7. RMS determines that the Buyer or Consignor of the Lot(s) is (i) subject to sanctions or other economic restrictions under global sanctions lists, (ii) a politically exposed person (at RMS’ discretion), (iii) subject to economic restriction under global regulatory and law enforcement lists, or (iv) subject to any other economic restriction, rule, regulation, or law under any government or regulatory body;
18.1.8. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot(s) at the auction that necessitate a cancellation; or
18.1.9. If there are Disputes, claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a Lot(s) not being authentic, being misrepresented, having an encumbered Title or registration, having an undisclosed material issue, or having a similar claim, RMS has the right to retain the Buyer’s funds on account and be the arbitrator as to the merit of the Buyer’s claims, including to cancel or rescind the Sale of the Lot(s) and reimburse the payment to the Buyer if RMS in its sole discretion deems the Buyer’s claims to be valid.
18.2. If the Sale of the Lot(s) is cancelled for any of the reasons outlined in this clause, RMS has the right-of-first refusal to consign and sell the Lot(s) for up to one year from the date of cancellation. If the Consignor has an opportunity to place the Lot(s) in an auction or sell via private sale, RMS has the right to meet the economic terms of the opportunity and sell on behalf of the Consignor for up to 5 business days from the Consignor providing notice.
19. Estimates: Any pre-sale estimates are intended as guides for prospective Bidders. RMS makes no representation or warranty of the anticipated selling price of a Lot(s), and no estimate anywhere by RMS of the selling price of a Lot(s) may be relied upon as a prediction of the actual selling price. Estimates included online, in pre-mailers, in any advertisements, or elsewhere are preliminary only, and they are subject to revision by RMS from time to time at its sole discretion. The Consignor acknowledges that RMS will not be liable for any errors or omissions in the pre-sale estimates of a Lot(s), and these pre-sale estimates make no guarantees, representations, or warranties whatsoever to the Consignor with respect to a Lot(s)’ value.
20. Odometer Statement: The Consignor will provide a duly executed odometer statement on or before the first day of the auction, and further THE CONSIGNOR ACCEPTS SOLE RESPONSIBILITY AND SHALL INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO THE ACCURACY OR INACCURACY OF SUCH STATEMENT.
21. Insurance: The Consignor will be responsible for maintaining adequate property insurance on the Lot(s) at all times, and this insurance must be at least equal to the aggregate low pre-sale auction estimate for the Lot(s) or such other amount agreed to between Consignor and RMS, which in each case shall include insurance for damages to the Lot(s) and shall not be cancellable by the insurance company until after Ownership and Title have passed to the Buyer and the Buyer has taken possession of the Lot(s) from RMS. The Consignor agrees that RMS and its respective affiliates and agents will not be responsible for, and the Consignor releases RMS and its respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the Lot(s).
22. Withdrawn Lot(s):
22.1. The Consignor acknowledges that RMS has incurred and will incur significant costs preparing, advertising, marketing, and promoting the Lot(s) for the auction.
22.2. If the Consignor withdraws one or more of the Lot(s) from the auction after the signing of these Conditions or otherwise sells the Lot(s) in violation of these Conditions, within 10 business days of RMS providing notice, the Consignor will pay RMS the Buyer’s Premium and 50% of the Seller’s Commission (if the Seller’s Commission is either listed as 0% or, waived in the Specific Information or Specific Conditions of the Auction Consignment Agreement, for the purposes of this clause, the Seller’s Commission will be 5%) that would have been due under these Conditions on the Lot(s) (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
23. Online Auction Services are “As Available” and “As Is.”:
23.1. Bids on a Lot(s) may be placed via websites, telephone services, applications, tools, and RMS’ online auction platform (collectively “Services”).
23.2. Although RMS endeavors to keep the Services safe, secure, and functioning properly, RMS cannot guarantee the continuous operation of or access to the Services or a Bidder’s ability to connect and navigate the Services.
23.3. Consignors agree that they are making use of the Services at their own risk and that the Services are being provided to the Consignors on an “AS AVAILABLE” and “AS IS” basis. Accordingly, to the extent permitted by applicable law, RMS excludes all expressed or implied warranties, terms, and conditions, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
24. Bid Display: RMS may use a bid display and currency conversion function; however, these are for informational purposes only and are not to be relied on by anyone as the bids, and currencies listed on the bid display are not real-time bids or conversions pegged to market rates. Errors and inaccuracies may occur in the operation of the bid display. To be clear, the bid price stated by the auctioneer is the prevailing and binding bid price.
25. Legal Action:
25.1. The governing law and jurisdiction for any legal action will be as follows:
25.2. For Auctions Held in the United States: These Conditions shall be interpreted in accordance with the laws of the State of Michigan, U.S., without regard to choice of law principles. Any dispute, claim, or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Conditions shall exclusively be subject to arbitration, and shall first be subject to mediation as a condition precedent to arbitration. If mediation is unsuccessful, the parties shall proceed to arbitration near Detroit, Michigan, before one arbitrator and all proceedings shall be conducted in English. The mediation and arbitration shall be administered by the American Arbitration Association pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to the auction or the Lot(s), the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, the Consignor agrees that the maximum liability of RMS arising out of or related to these Conditions or any claim or dispute between the parties regarding the Lot(s) or auction shall be the Seller’s Commission that would have been due under clause 4.1. of these Conditions on the Lot(s) (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
25.3. For Auctions Held Outside of the United States: These Conditions shall be interpreted in accordance with the laws of England, without regard to choice of law principles. Any dispute, claim, or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation, or validity thereof including the determination of the scope or applicability of these Conditions to arbitrate, shall exclusively be subject to arbitration and, shall first be subject to mediation as a condition precedent to arbitration. If mediation is unsuccessful, the parties shall proceed to arbitration in London, England before one arbitrator and, all proceedings shall be conducted in English. The mediation and arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to the auction or the Lot(s), the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, the Consignor agrees that the maximum liability of RMS arising out of or related to these Conditions or any claim or dispute between the parties regarding the Lot(s) or auction shall be the Seller’s Commission that would have been due under clause 4.1. of these Conditions on the Lot(s) (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS
26. Bidding Restrictions: The Consignor hereby agrees not to bid on his/her/their Lot(s). Although the auctioneer shall be entitled to bid on the Consignor’s behalf in an amount not to exceed the amount of the Reserve (if applicable), the Consignor shall neither instruct nor permit any other person to bid on behalf of the Consignor for his/her/their Lot(s). If, however, in violation of the foregoing, the Consignor (or his or her agent) bids on his/her/their Lot(s) and becomes the successful bidder, the Expenses and Fees and Buyer’s Premium on the Hammer Price shall be payable by the Consignor. If the Consignor does not pay in accordance with this clause within 10 business days, his/her/their Lot(s) may be sold by RMS without Reserve.
27. Lot’s Batteries: If RMS receives a Lot(s) with a dead battery, or shows signs of a draining battery, RMS will use commercially reasonable effort to install a new battery, and an automatic $200.00 USD (or the local currency equivalent) replacement fee will be charged to the Consignor. In the event a new or replacement battery costs more than $200.00 USD (or the local currency equivalent), RMS will charge the actual cost of battery plus $200.00 USD, if the battery is replaceable by an RMS employee.
28. Antifreeze Is the Responsibility of the Consignor:
28.1. As the Consignor’s Lot(s) could be shipped to a location where below-freezing temperatures are a possibility, it is the Consignor’s responsibility to ensure that, within the last 6 months, they have winterized their Lot(s) for shipping in freezing temperatures. Winterizing one or more of the Lot(s) means that the Consignor has completely filled and properly mixed, at a minimum, –25°C-rated antifreeze into their Lot’s radiator.
28.2. If any damage occurs because the Consignor did not properly winterize their Lot(s), it will be the Consignor’s responsibility to cover the damages, and RMS may recoup these damages from the Consignor’s settlement. If it is found that the Consignor did not properly winterize their Lot(s), the associated costs with checking, filling, and disposing of the antifreeze will be recouped from the Consignor’s settlement; if the Lot(s) is not sold, the Consignor must pay RMS before the Consignor can retake possession of their Lot(s). If already settled, the Consignor must pay RMS directly.
29. Entire Agreement: This document shall be binding upon the Parties and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, these Conditions shall not be modified, except in writing. Whenever used in these Conditions, as the contract requires, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter, and the neuter gender shall include the masculine and feminine.
30. Assignment of Rights:
30.1. The Consignor agrees that RMS may assign, sell, and/or pledge, entirely or in parts (“Assign” or “Assigns” or “Assigned” or “Assignment”) (third party who is assigned rights is an “Assignee(s)”) without limitation any and all rights, obligations, and/or remedies and/or relief as provided by law (“Rights”) that RMS is entitled to/obligated by under these Conditions to any Assignee(s) (including, but not limited to, any RMS affiliate, and for Lot(s) purposes, to any financing sources of RMS).
30.2. RMS may assign insurance to an alternative insurance provider.
30.3. Following any Assignment in accordance with the terms hereof, any reference in these Conditions to any Rights that RMS is entitled to/obligated by under these Conditions, shall be held by RMS on behalf of and for the benefit of itself and any Assignee(s). The Consignor hereby agrees to promptly execute and deliver any amendment or supplement to these Conditions reasonably requested by RMS in connection with any Assignment in accordance with the terms hereof.
30.4. The Consignor may not Assign the Rights that the Consignor is entitled to/obligated by, under these Conditions to any other individual or entity without the express written permission of RMS.
31. No Legal or Tax Advice: These Conditions are an important legal document. The Consignor acknowledges that the Consignor has had the opportunity to consult an attorney before signing these Conditions and has signed these Conditions after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in these Conditions, or any contemporaneous written, oral, or implied understandings of the Parties relating to the subject matter of these Conditions, RMS has not provided legal or tax advice or tax planning services to the Consignor or for the Consignor’s benefit in connection with the transactions contemplated by these Conditions, and no one at RMS has acted as the Consignor’s attorney or tax advisor.
32. Data Use: The Consignor agrees to allow RMS to use their personal information in accordance with RMS’ privacy policy. RMS uses your personal information to provide services specifically tailored toward your requirements and to treat you in a personal way; to fulfill your agreements regarding the consignment and purchase of items at RMS auctions and private sales; to provide you with information on upcoming sales; to carry out analysis and market research; to undertake targeted online advertising; to send status updates and service communications; to improve our websites, products, and services; to provide payment services; and for management and administrative purposes. RMS may share personal information with delivery and logistics companies for the purpose of arranging shipment and transport of consigned lots. Further information on the use of personal information for the purpose of shipment and transport of consigned lots may be found by reviewing the Privacy Policies of the delivery and logistics companies directly. RMS’ full Privacy Policy can be found at the bottom of the RMS website homepage under the Privacy and Terms tab. If you wish to ask any questions regarding the use of your personal information, request a full accounting of what personal information is on file with RMS, unsubscribe to any services, or purge your personal information from RMS’ systems, please email privacy@rmsothebys.com.
33. Anti-Money Laundering: The Consignor agrees to provide all information and assistance reasonably requested by RMS to comply with RMS’ internal anti-money laundering process and to comply with any and all anti-money laundering laws and regulations.
34. Photography, Videography, and Illustrations: All photographs, videography, and illustrations commissioned by RMS for the Lot(s) are the absolute property of RMS, and RMS shall have the absolute right to use the photographs, videography, and illustrations as RMS deems fit.
35. Confidentiality of the Buyer(s) Identity: Unless RMS elects to do so in its sole discretion, RMS shall not be required to share or produce the name of Buyer(s) to the Consignor(s) without a court order or except in accordance with government regulation.
36. Consumer Protection Rights:
36.1. If the Consignor is a Business (defined below) AND the Buyer is a consumer AND the consumer has a right of withdrawal against the Consignor on the basis of EU and UK consumer protection laws, the Buyer has the automatic statutory right for 14 calendar days after the Buyer comes into possession of the Lot(s) to rescind the Sale of the Lot(s). Nothing in this clause shall affect any Buyer(s) legal rights that shall apply against RMS or the Consignor as a result of any applicable laws.
36.1.1. The definition of Business for these Conditions is a natural person or legal entity in the business of selling automobiles and acting for purposes relating to such business (“Business”).
36.1.2. RMS reserves the right to make the reasonable determination as to whether a Consignor meets the definition of Business provided that such determination is not inconsistent with applicable law.
37. Set-Off: If the Consignor owes RMS money from this or an unrelated transaction, RMS may unilaterally retain funds to satisfy the amount owed by the Consignor. RMS may unilaterally retain funds from the Buyer if the Consignor has breached the terms outlined in these Conditions.
38. Cryptocurrency: RMS has partnered with BitPay, the world’s largest provider of bitcoin and cryptocurrency payment services, to collect cryptocurrency payments via email invoice. If a Buyer elects to pay via cryptocurrency, among other BitPay requirements as outlined on https://bitpay.com/, the Buyer must be pre-approved by BitPay and the Buyer must pay a 1% vendor fee which will be added to the Buyer’s BitPay invoice.
39. W-9 and W-8 Form Collection:
39.1. Beginning 1 January 2022, in order for RMS to comply with U.S. tax law:
39.1.1. A Form W-9 must be provided to RMS from every U.S. resident Consignor who will receive a payment from any RMS entity; and
39.1.2. A Form W-8 must be provided to RMS from every non-U.S. resident Consignor selling a Lot(s) in a US-based sale who will receive a payment from an RMS United States entity.
39.1.2.1. Please note that, there may be very limited circumstances in which RMS must obtain a Form W-8 from a non-U.S. resident Consignor receiving a payment for an RMS sale outside of the United States.; however, RMS will require a W8 BEN if the Consignor is an individual, and a W8 BEN-E if the Consignor is a company, including dealers.
39.2. RMS must obtain the Form W-9 and Form W-8 prior to payment being made to the Consignor.
SPECIFICALLY FOR RMS CALIFORNIA AUCTIONS:
40. Notice to Consignor as Required by the California Department of Motor Vehicles Code Section 11729: Failure by RMS to comply with the terms of these Conditions may be in violation of statute, which could result in criminal or administrative sanctions, or both. If you feel that RMS has not complied with the terms of these Conditions, please contact an investigator with the California Department of Motor Vehicles.
41. Contract Cancellation Agreement: In the event of a successful bid, if a Lot(s) has a combined Hammer Price and Buyers’ Premium equaling less than $40,000.00 USD, then under the Car Buyer’s Bill of Rights (FFVR 35), RMS is required to offer a 2-day contract cancellation option agreement to the successful Buyer. If the Buyer exercises this contract cancellation option, RMS is obligated to return any funds paid by the Buyer and cancel the sale. If the sale is canceled, RMS is under no obligation to pay the Consignor for the Lot(s), and the Lot(s) will be deemed a no-sale.
SPECIFICALLY FOR RMS AUCTIONS HELD OUTSIDE THE UNITED STATES:
42. Vehicle Registration Number (If Applicable):
42.1. If the Consignor wishes to sell the Lot(s) but retain the rights to the registration number of the Lot(s), it is the Consignor’s responsibility to notify RMS in writing.
42.2. It shall be the Consignor’s responsibility to take all necessary steps to ensure that the current Lot(s) registration number is reserved and that a new number is allocated prior to the Lot(s) being sold at the auction, and if the Consignor does not do so, RMS shall not be responsible for any loss or damage whatsoever arising out of the sale of the Lot(s) or its registration number.
42.3. RMS may, at its discretion (without any assumption of responsibility or duty toward the Consignor or the Buyer), take such steps to facilitate the reservation or transfer of any particular registration number as it thinks fit in order to assist the Consignor or Buyer, but strictly on the condition that no claim attaches to RMS for taking any such steps, whether arising out of RMS’ negligence or any other cause whatsoever.
43. Lot(s) Under Temporary Import:
43.1. If a Lot(s) is brought into Europe from a country outside of Europe, the Lot(s) must be placed on either RMS’ bond in the United Kingdom or one of RMS’ nominated customs agencies for Paris, Monaco, or Italy. Fees and charges vary from sale to sale, and for some countries, this is also determined by the value of the Lot(s).
43.2. Lot(s) subject to temporary importation restrictions cannot be discharged from RMS’ custody without the completion of customs procedures and until full payment has been received. Customs charges will be levied appropriately depending on each individual scenario and will be payable directly to the relevant authorities, for which RMS will provide the details of as and when necessary.
43.3. If the Lot(s) does not sell at the auction, the Lot(s) must be re-exported to the country of origin, transferred to another temporary bond, or, alternatively, the Consignor must pay any and all relevant taxes if the Consignor would like the Lot(s) to remain in Europe. The Lot(s) cannot be released from RMS’ care until an option is executed.
43.4. Should the Consignor decide for the Lot(s) to remain in Europe when purchased, the Buyer is responsible to pay any and all import fees for the Lot(s).
