BIDDERS’ CONDITIONS OF BUSINESS
1. Introduction.
1.1. Please ensure that you read and understand these Bidders’ Conditions of Business (“Conditions of Business”) prior to bidding on the 2010 McLaren MP4-25, Chassis No. 25A-01 (“Lot”) at RM Sotheby’s (“RMS”) The Lewis Hamilton GP Winning McLaren auction on 17 July 2021. Please note that the Conditions of Business are subject to change from time to time and it will be posted on RMS’ website and catalogue, as the case may be. It is each bidder’s (“Bidder(’s)”) responsibility to apprise themselves of the Conditions of Business for the auction. Bidders are encouraged to contact RMS’ Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Conditions of Business.
1.2. RMS’ contractual relationship with the Bidders are governed by:
1.2.1. These Conditions of Business;
1.2.2. The Conditions of Business displayed on RMS’ website;
1.2.3. The Conditions of Business announced and displayed in the auction salesroom;
1.2.4. The Key to Lot Symbols and/or Legend referenced in the auction catalogue and/or Lot description on www.rmsothebys.com (“Website”) as the case may be; and
1.2.5. In each case as amended by any salesroom notice, auctioneer’s announcement at the auction, or website update.
(Clauses 1.2 to 1.2.5 together are “Contractual Obligations”)
1.3. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot (“Consignor”), and a sale contract is made directly between the Consignor and the winning Bidder (the “Buyer”).
2. Bidder Due Diligence Responsibilities. The Bidder is responsible for any and all due diligence including but not limited to inspections and verification of the (originality, character, features, condition, correctness, authenticity, history or description, statements made in reference to, or any and all other matters regarding the Lot (“Bidder Due Diligence”).
3. All Sales Are “As Is” and “Where Is.” No warranties or representations of any type whatsoever are made by RMS or any Consignor to the Bidder regarding the Lot being offered in an RMS sale. Lot descriptions, statements printed in catalogues or online content, pre-mailers, advertisements, brochures, signs, and window cards, as well as verbal statements made by Consignors, auctioneers or auction staff, are based on statements and historical files, if any, collected from the Consignor and other third-party sources, and RMS has no obligation to verify or authenticate any such statements. The Lot is sold as is, where is, with no representations or warranties, expressed or implied. THE CONSIGNORS AND RMS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, AS TO CONDITION, ORIGINALITY, OR AUTHENTICITY; ORIGIN OR PROVENANCE; PREVIOUS USE OR OWNERSHIP; MANUFACTURING OR RESTORATION PROCESSES; YEAR OR AGE; SERIAL NUMBER, MAKE, OR MODEL; OPTIONS AND TOOLS; ENGINE HOURS; AND MILEAGE OF THE LOT OR COMPONENT OF THE LOT, AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
4. Services. RMS may provide auction services including a sale facility, clerks, support staff, event advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the Lot or any RMS auction as to (a) consulting any expert either before or after the sale, (b) researching provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
5. Bidding at Auction.
5.1. To bid at the auction, a Bidder must satisfy any and all RMS bidder registration requirements which include, but are not limited to (i) purchasing Paddock club tickets; (ii) being at least 18 years of age; (iii) providing RMS with a copy of a valid form of government-issued identification; (iv) providing RMS with bank letter written on bank letterhead; RMS may waive this requirement at its sole discretion; (v) providing RMS with a copy of a credit card; and (vi) providing RMS with copies of any and all required financial documents including, but not limited to, financial references, guarantees, deposits, and/or such other security, at RMS’ absolute discretion, as security for any bid (together “Bidder Registration Requirements”).
5.2. Please note that even if a Bidder has satisfied and/or met some or all of the Bidder Registration Requirements for previous RMS auctions, all Bidders will be required to satisfy and/or meet the Bidder Registration Requirements for the auction specifically prior to being accepted to bid.
5.3. If the Bidder does not satisfy and/or meet the Bidder Registration Requirements, RM, at its sole discretion, may not allow the Bidder to register to bid at the auction.
5.4. Once you have satisfied the Bidder Registration Requirements, you will be able to place bids against the Lot at the auction.
5.5. Once made, no Bidder may retract a bid made during the auction for any reason.
5.6. There is no “cooling-off period”, cancellation, or rescission of bids.
5.7. If at the end of the auction, you are awarded the final bid on the Lot, ownership automatically changes hands at the drop of the auctioneer’s hammer (or equivalent device or mechanism) or the close of the Lot (“Close of Lot”). At the Close of the Lot, you are now the legal owner of the applicable Lot and are responsible for payment in full.
5.8. The Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot.
5.9. RMS reserves the right to reject any bid. The highest Bidder acknowledged by the auctioneer will be the Buyer. The auctioneer has absolute and sole discretion in the case of error or dispute with respect to bidding and, the auctioneer and RMS have absolute and sole discretion, whether during or after the sale, to determine the successful Bidder, to re-open the bidding, to cancel the sale, or to re-offer and re-sell the Lot in dispute. If any dispute arises after the sale, RMS’ sale record is conclusive. At RMS’ discretion, RMS will execute absentee bids and accept telephone bids as a convenience to clients who are not present at auctions; RMS is not responsible for any errors or omissions in connection with the calling, displaying, accepting, or rejecting of bids.
5.10. By participating in the auction, the Bidder represents and warrants that any bid placed by them, or on their behalf, is not the product of any collusive or other anti-competitive agreement and is otherwise consistent with applicable competition law.
5.11. If a Bidder would like an RMS representative to bid on their behalf, they need to complete the corresponding RMS Car Specialist as Agent Form attached as Attachment #1 to these Conditions of Business.
5.12. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
6. Purchase Price. The purchase price shall consist of the following:
6.1. the Hammer Price (defined below) of the Lot, and
6.2. the applicable Buyers’ Premium (defined below).
(Clauses 6 to 6.2 together are “Purchase Price”)
7. Buyers’ Premium. In addition to the Hammer Price, the Buyer is required to pay RMS a percentage of the Hammer Price which RMS retains as the Buyers’ Premium for the purchase of the Lot (“Buyers’ Premium”); RMS will receive a Buyers’ Premium of 15% (plus VAT on the Buyers’ Premium) on the first £200,000.00 of the Hammer Price and, RMS will receive a Buyers’ Premium of 12.5% (plus VAT on the Buyers’ Premium) on the Hammer Price above £200,000.00.
8. Taxes. The Buyer is responsible to pay all applicable taxes, duties, tariffs, and any and all other government mandated costs associated with purchasing the Lot (“taxes”). Further, as mandated in multiple applicable jurisdictions, RMS is required to remit taxes; as applicable, RMS will outline the additional taxes on your invoice.
9. No Legal or Tax Advice.
9.1. This agreement is an important legal document. The Bidder acknowledges that the Bidder has had the opportunity to consult an attorney before accepting this agreement and has entered into this agreement after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in this agreement, or any contemporaneous written, oral, or implied understandings of the parties relating to the subject matter of this agreement, RMS has not provided legal or tax advice or tax planning services to the Bidder or for the Bidder’s benefit in connection with the transactions contemplated by this agreement, and no one at RMS has acted as the Bidder’s attorney or tax advisor. As a condition of bidding at the auction, it is the Bidder’s responsibility to satisfy themselves and comply with all applicable tax, duty, or any and all other payments associated with the purchase of the Lot at the auction. A further condition of bidding at the auction is that the Bidder holds RMS harmless from any and all tax or regulatory issues that arise due to Tax and Ownership Information (defined below) that RMS provides.
9.2. In order to assist Bidders with this process, RMS may provide information about the tax status of the Lot, as well as any ownership or registration papers that will be supplied with the respective Lot (“Tax and Ownership Information”); however, this information is being provided merely to assist Bidders in their determination of their own tax and regulatory responsibilities.
10. Expenses and Fees: Expenses and fees as outlined in these Conditions of Business include, but are not limited, to duty, insurance, and taxes (collectively “Expenses and Fees”). The Buyer will be required to pay the applicable Expenses and Fees to RMS in addition to the Hammer Price and applicable Buyers’ Premium in accordance with clause 11 (Payment).
11. Payment.
11.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the contract between the Consignor and the Bidder is concluded and irrevocable.
11.2. The value of the last accepted bid upon the Close of Lot is the Hammer Price (“Hammer Price”).
11.3. Payment is due in full on or before 5:00 p.m. EST of the next business day (“Payment Deadline”), and payment is to be made to RM.
11.4. The auction will be conducted in Pound Sterling and all payments are required to be made in Pound Sterling. Further, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
11.5. RMS is not obligated to release the Lot to the winning Bidder until the Buyer has met all of the Contractual Obligations and paid the Purchase Price plus applicable Expenses and Fees.
12. Non-Payment.
12.1. In the event that the Buyer does not pay any portion of the Purchase Price and applicable Expenses and Fees by the Payment Deadline, the Bidder agrees to and acknowledges that RMS has the sole discretion to do any one or any combination of the following:
12.1.1. Cancel/rescind the sale of the Lot. If the sale is cancelled/rescinded due to non-payment, RMS will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission.
12.1.2. Assume the rights of the Consignor to pursue the Buyer for any amounts paid to the Consignor, whether at law, in equity, or under these Conditions of Business.
12.1.3. Deduct the Purchase Price plus applicable Expenses and Fees from the Bidder’s cash deposit and/or charge the Purchase Price and applicable Expenses and Fees to the credit card that the Bidder has provided. If the Bidder’s cash deposit and/or credit card payment does not cover the Purchase Price plus applicable Expenses and Fees, in addition to other remedies available by law, RMS reserves the right to impose, from the Payment Deadline until the full Purchase Price plus applicable Expenses and Fees has been made by the Buyer, a late charge of (1) the U.S. Prime Rate then in effect, as published by The Wall Street Journal (“U.S. Prime Rate”) + 4.00% for up to the first 60 calendar days after the Payment Deadline and (2) the U.S. Prime Rate + 8.00% thereafter until the full Purchase Price plus applicable Expenses and Fees has been made by the Buyer on the:
12.1.3.1. Purchase Price;
12.1.3.2. Applicable Expenses and Fees;
12.1.3.3. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
12.1.3.4. Other damages reasonably related to the Bidder’s non-payment.
12.1.3.5. Please note that the U.S. Prime Rate as outlined above will be adjusted daily to account for changes in the U.S. Prime Rate and may increase or decrease during the term of these Conditions of Business.
12.2. In the event of a non-payment, the Buyer 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, THE NON-PAYMENT, OR RMS’ ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 12.1.
13. Reserve.
13.1. The Lot is subject to a reserve set by the Consignor. When the Lot is sold subject to a reserve, the auctioneer may bid on the Consignor’s behalf in an amount not to exceed the amount of the reserve.
13.2. If RMS contributes to the Hammer Price to meet a reserve, the reserve for the respective Lot becomes the Hammer Price plus RMS’ contribution for purposes of commissions.
14. Absentee and Telephone Bidding. Absentee and telephone bidding are services provided by RMS for the Bidder’s benefit, and RMS cannot be held responsible for errors or omissions with respect to the bidding process, including failure to execute any bid. By submitting one or more bids, the Bidder has entered into a binding contract to purchase the Lot if the Bidder’s bid is successful. If the Bidder’s bid is successful, the Bidder is to pay the Purchase Price plus applicable Expenses and Fees, including the Buyers’ Premium and sales tax, if not otherwise exempt. It is the Bidder’s responsibility to provide proof of exemption from sales tax. By participating in telephone bidding, the Bidder acknowledges that RMS has the right to record all telephone calls.
15. Cancellation/Rescission of Auction. 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 Bidder for any losses or damages resulting from the cancellation/rescission, including but not limited to if RMS believes the following events have occurred or have a reasonable chance of occurring:
15.1. Force Majeure events including but not limited to:
15.1.1. Any natural disaster, which despite reasonable efforts, restricts RMS from holding the auction;
15.1.2. Structural damage to the auction venue prior to the auction, which despite reasonable efforts, restricts RMS from holding the auction; and
15.1.3. Any terrorist event (including resulting governmental restrictions), pandemic, 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) which despite reasonable efforts restricts RMS from holding the auction in its contemplated form.
15.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold an auction that necessitate or make prudent a cancellation.
16. Cancellation/Rescission of Lot. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the sale of the Lot and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission, including but not limited to if RMS believes the following events have occurred or have a reasonable chance of occurring:
16.1. RMS opines that the Lot has been intentionally and materially misrepresented by the Consignor;
16.2. RMS opines that physical damage to the Lot, which cannot be sufficiently repaired prior to the auction, occurred after this agreement was formed;
16.3. RMS is served with a lawsuit or threatened with a dispute from a third party in relation to the Lot;
16.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot;
16.5. Material issues regarding 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;
16.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot that cannot be reasonably cured or RMS believes would expose it to claims or disputes from a third party;
16.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot at the auction that necessitate a cancellation; or
16.8. If there are disputes, claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of the Lot not being authentic, being misrepresented, having an encumbered title or registration, having 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 and to cancel or rescind the sale of the Lot and reimburse the payment to the Buyer if RMS in its sole discretion deems the Buyer’s claims to be valid.
17. Bid Display. RMS may use a bid display in the salesroom for informational purposes only. The bid and currencies listed on the bid display are not real-time bids or conversions pegged to market rates and are not to be relied on by anyone. 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.
18. Credit Card Hold and Pre-authorization. Please note that in order to register to bid at an RMS sale, RMS requires a hold and pre-authorization of £5,000.00 to be placed on the Bidder’s credit card (“CC Hold”), from the date of registration until the close of the auction. If the Bidder fails to pay for a Lot purchased on or before 5:00 p.m. of the next business day following the auction, the Bidder acknowledges that their credit card will be charged the applicable CC Hold for the missed payment; please note that the Bidder is still bound to pay their remaining balance. The CC Hold will not be charged to their credit card if the Bidder makes full payment on or before 5:00 p.m. of the next business day following the auction. If the Bidder is not the Buyer of the Lot, the CC Hold will be removed from the credit card in accordance with the Bidder’s specific credit card companies’ procedures. Please note that RMS may waive this requirement at its sole discretion.
19. Removal of Purchased Lot.
19.1. The purchased Lot will be moved by RMS from the auction site immediately following the auction and taken to a secure storage facility.
19.2. Please note that the Buyer is required to insure the Lot while the Lot is being stored on their behalf.
19.3. If the Lot is not removed for one calendar year from the date of the auction and other arrangements have not been made, RMS has the right to (i) auction the Lot, (ii) retain its standard Buyers’ Premium and other applicable Expenses and Fees, and (iii) return the remaining payment to the Buyer.
20. Legal Action. These Conditions of Business 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 of Business or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Conditions of Business 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, 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 Bidder agrees that the maximum liability of RMS arising out of or related to these Conditions of Business or any claim or dispute between the parties regarding the Lot or the auction shall be the Buyers’ Premium that would have been due under clause 7 of these Conditions of Business had the Lot (a) met their 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 RM.
21. Packing and Shipping. RMS is not responsible for the acts or omissions in our packing or shipping of purchased Lot or of other carriers or packers of purchased Lot, whether or not recommended by RM. Packing and handling of purchased Lot are at the entire risk of the Buyer.
22. Data Use. The Bidders agree 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, the auction, 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. The full Privacy Policy can be found at the bottom of the RMS website homepage under the Privacy & Terms tab. If you wish to ask any questions regarding the use of your personal information, to request a full accounting of what personal information is on file with RMS, or to unsubscribe to any services or purge your personal information from RMS’ systems, please email privacy@rmsothebys.com.
23. Anti-Money Laundering. The Bidder 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 applicable Anti-Money Laundering Laws and Regulations.
24. 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 of Business shall not be modified, except in writing. Whenever used in these Conditions of Business, 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.
25. Translations.
25.1. If there is a discrepancy, contradiction, or question of interpretation regarding enforceability between the English version of the Conditions of Business and a version of the Conditions of Business produced in a language other than English, the English version of RMS’ Conditions of Business will supersede.
25.2. If there is a discrepancy, contradiction, or question of interpretation in a description for the Lot, in print, online, or otherwise between the English version of the description and a version produced in a language other than English, the English version will supersede.
26. COVID-19 Assumption of Risk and Waiver of Liability. If attending the auction in person, the Bidder agrees to the following:
26.1. The Bidder and any guests in the Bidder’s party, acknowledge the potential risks associated with COVID-19 exposure and voluntarily assume all risks related to exposure to COVID-19.
26.2. The Bidder agrees not to hold RMS or any of their affiliates, directors, officers, employees, agents, contractors, third parties, vendors, guests, or volunteers liable for any issues associated with COVID-19 exposure.
26.3. If the Bidder has recently tested positive for COVID-19 or are experiencing any symptoms of COVID-19 including, but not limited to, fever, dry-cough, tiredness, aches and pains, difficulty breathing, shortness of breath or, have been in contact with someone with COVID-19 or suspected COVID-19, the Bidder will not permitted to attend the auction.
26.4. By attending the auction, the Bidder agrees to submit to a temperature check and to wear a mask at all times. The Bidder will only be exempt from wearing a mask while eating or, if the Bidder has been diagnosed with a medical condition that prohibits the wearing of a mask.
26.5. If the Bidder refuses to submit to a temperature check and/or does not wear a mask as outlined, the Bidder must leave the auction premises immediately and/or the Bidder will be escorted from the auction premises by security and, no refunds will be provided.
26.6. Information provided during bidder registration may be used in accordance with governmental COVID-19 rules and regulations and in accordance with RMS’ Privacy Policy.
ATTACHMENT #1 TO BIDDERS’ CONDITIONS OF BUSINESS
RMS CAR SPECIALIST AS AGENT FORM
The Bidder may choose to have an RMS Auctions Limited (“RMA”) or RM Sotheby’s (“RMS”) (RMA and RMS together “RM”) Car Specialist place a bid on a Lot on their behalf during The Lewis Hamilton GP Winning McLaren auction (“Auction”). In order for a RMS Car Specialist to bid on the Bidder’s behalf, the Bidder must (i) provide the following information, (ii) select and initial beside a bidding option as outlined below, and (iii) sign their name at the bottom of this form:
THE LEWIS HAMILTON GP WINNING MCLAREN AUCTION
Client Name:
Lot Number:
Bidding Options: I acknowledge and agree that an RMS Car Specialist may bid on my behalf on the above referenced lot number at the Auction in accordance with the following selected option:
A. Up to £______________________________ Hammer Price (as outlined and defined in the Auction Bidders’ Conditions of Business).
**Please note that the applicable Buyers’ Premium will apply.
_____________
Bidders’ Initials
OR
B. As Instructed.
**Please note that the applicable Buyers’ Premium will apply.
**Please note that if this Option is chosen, the Bidder will be required to provide the RMS Car Specialist with their bidding instructions either via email or text message. Verbal bidding instructions will not be accepted.
_____________
Bidders’ Initials
If any dispute arises after the sale wherein an RMS Car Specialist bid on behalf of a Bidder during the Auction, the Bidder acknowledges that RMS will not be held responsible for any errors or omissions in connection with the calling/displaying/accepting of bids.
________________________________
Date
________________________________
Signature of Bidder
