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 (i) 1953 Alfa Romeo BAT 5, VIN: AR1900 01396; (ii) 1954 Alfa Romeo BAT 7, VIN: AR1900C 01485; and (iii) 1955 Alfa Romeo BAT 9d, VIN: AR1900 01600 (together “Lot(s)”) via Sotheby’s Livestream Platform for the Sotheby’s Contemporary Art Evening Auction on October 28, 2020. Please note that the Conditions of Business are subject to change from time to time and it will be posted on the RM Sotheby’s (“RMS”) website and catalogue, as the case may be. It is each Bidder’s responsibility to apprise himself or herself of the Conditions of Business for each auction in which the Bidder wishes to participate. 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; and
1.2.3. In each case as amended by any notice or website update.
(Clauses 1.2. to 1.2.3. together are “Contractual Obligations”)
1.3. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot(s) (“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 (i) condition, (ii) authenticity, (iii) completeness, (iv) statements made in reference to, and (v) any and all other matters regarding any Lot(s) offered in an RMS sale (“Bidder Due Diligence”).
3. Reserved.
4. With the Exception of the New York Used Car Lemon Law, N.Y. GBL. § 198 (where applicable), 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 any Lot(s) offered in an RMS sale. Statements in online content, catalogue descriptions, 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. All Lot(s) are 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 ANY LOT(S) OR COMPONENT OF ANY LOT(S), AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. Services. RMS may provide auction services including clerks, support staff, event advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the Lot(s) or any RMS auction as to (a) consulting any expert either before or after the sale, (b) researching provenance, (c) providing descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
6. Bidding at the Auction.
6.1. In order to register to bid at the auction, please contact Azar Khosrowshahi at RM Sotheby’s either via email at AKhosrowshahi@rmsothebys.com or via telephone at +1 310 735 9509.
6.2. To bid at the auction, a Bidder must satisfy any and all RMS bidder registration requirements which include, but are not limited to (i) being at least 18 years of age; (ii) providing RMS with a copy of a valid form of government-issued identification; (iii) providing RMS with bank letter showing suffiencient funds to bid on bank letterhead or a certified bank statement; RMS may waive this requirement at its sole discretion; and (iv) 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”).
6.3. 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.
6.4. If the Bidder does not satisfy and/or meet the Bidder Registration Requirements, RMS, at its sole discretion, may not allow the Bidder to register to bid at the auction.
6.5. Once made, no Bidder may retract a bid made during the auction for any reason.
6.6. There is no “cooling-off period”, cancellation, or rescission of bids.
6.7. If at the end of the auction, you are awarded the final bid on a Lot(s), ownership automatically changes hands at the drop of the auctioneer’s hammer (or equivalent device or mechanism) or the close of the Lot(s) (“Close of Lot”). At the Close of Lot, you are now the legal owner of the applicable Lot(s) and are responsible for payment in full.
6.8. The Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot(s).
6.9. The auctioneer 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(s) in dispute. If any dispute arises after the sale, RMS’ sale record is conclusive. RMS is not responsible for any errors or omissions in connection with the calling, displaying, accepting, or rejecting of bids.
6.10. 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.
6.11. For further details on requirements to bid, please contact a RM Sotheby’s client services representative at clientservices@rmsothebys.com.
7. Purchase Price. The purchase price shall consist of the following:
7.1. the Hammer Price (defined below) of the Lot(s), and
7.2. the applicable Buyers’ Premium (defined below).
(Clauses 7 to 7.2 together are “Purchase Price”)
8. Buyers’ Premium. In addition to the Hammer Price, the Buyer is required to pay RMS 12% of the Hammer Price, which RMS retains as the Buyers’ Premium for the purchase of each Lot(s) (“Buyers’ Premium”).
9. Taxes.
9.1. The Buyer is responsible to pay all applicable sales taxes, and any and all other taxes due for which the Buyer does not qualify as exempt, subject to RMS verification; proof of exemption is the Buyer’s responsibility. The Buyer is responsible for any applicable duty, import tariffs, charges, or any and all other required payments that are due upon the import of the Lot(s) to its final destination.
9.2. Although by no means an exhaustive list, please be aware that if the Buyer of a Lot(s) resides in a state in the U.S. in which RMS is registered to collect/remit sales tax, RMS is required to collect/remit sales tax on the purchase of that Lot(s). RMS is registered to collect/remit sales tax in the following states: Arizona, California, Florida, Indiana, Michigan, New York, and Pennsylvania. RMS reserves the right to collect/remit sales tax from residents from other jurisdictions if RMS deems in its sole discretion the collection/remittance of tax necessary.
9.3. Unless exempted by law, the Buyer of the Lot(s) will be required to pay the combined New York State and local sales tax and, if applicable, any other tax on the total Purchase Price plus applicable taxes. The rate of such combined state and local sales tax is 8.875% in New York City and ranges from 7% to 8.625% elsewhere in New York. New York sales tax will not be collected if the Buyer provides a valid Automotive Dealer’s License, Form ST-120, Resale Certificate or Export Bill of Lading and a valid Form DTF- 820, Certificate of Nonresidency of New York State and/or Local Taxing Jurisdiction.
10. No Legal or Tax Advice. 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 a Lot(s) 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.
10.1. In order to assist Bidders with this process, RMS may provide information about the tax status of each Lot(s), as well as any ownership or registration papers that will be supplied with the respective Lot(s) (“Tax and Ownership Information”); however, this information is being provided merely to assist Bidders in their determination of their own tax and regulatory responsibilities.
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 RMS.
11.4. RMS American auctions will be conducted in United States Dollars and all payments are required to be made in United States Dollars. Further, all payments must be in the form of cash or certified funds unless other arrangements have been approved in advance. Cash payments will be reported according to U.S. federal government requirements.
11.5. RMS is not obligated to release the Lot(s) to the winning Bidder until the Buyer has met all of the Contractual Obligations and paid the Purchase Price plus applicable taxes.
12. Non-Payment. In the event that the Buyer does not pay any portion of the Purchase Price and applicable taxes 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. Cancel/rescind the sale of a Lot(s). 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.
12.2. Assume the rights of the Consignor or pursue the Buyer for any amounts paid to the Consignor, whether at law, in equity, or under these Conditions of Business.
12.3. If the Bidder is delinquent on paying the full amount due by the Payment Deadline, RMS reserves the right to impose, from the Payment Deadline until the full Purchase Price plus applicable taxes has been made by the Buyer, a late charge of (1) the 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 taxes has been made by the Buyer on the:
12.3.1. Purchase Price and applicable taxes;
12.3.2. Applicable expenses;
12.3.3. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
12.3.4. Other damages reasonably related to the Bidder’s non-payment.
13. Reserves. Lot(s) not marked as “no reserve” (or similar) are subject to a reserve set by the Consignor. When a Lot(s) 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.
14. 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 probability of occurring:
14.1. Force Majeure events including but not limited to:
14.1.1. Any natural disaster, which despite reasonable efforts restricts RMS from holding the auction;
14.1.2. Structural damage to the auction venue prior to the auction, which despite reasonable efforts, restricts RM from holding the auction; and
14.1.3. Any terrorist event, pandemic, war, as well as any “guideline” or “recommendation” or orders and/or sanctions imposed 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.
14.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the auction that necessitate a cancellation.
15. Cancellation/Rescission of Lot(s). 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 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 probability of occurring:
15.1. RMS opines that the Lot(s) has been intentionally and materially misrepresented by the Consignor;
15.2. RMS opines that physical damage to the Lot(s), which cannot be sufficiently repaired prior to the auction, occurred after this agreement was formed;
15.3. RMS is served with a lawsuit from a third party in relation to the Lot(s);
15.4. RMS faces significant reputational damages that would cause monetary damages for selling the Lot(s);
15.5. Material issues regarding title, registration, or transfer of ownership that cannot be reasonably cured;
15.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot(s) that cannot be reasonably cured;
15.7. 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
15.8. If there are legitimate 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 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 the sale of the Lot(s) and reimburse the payment to the Buyer if RMS deems the Buyer’s claims to be valid.
16. Currency Display. RMS may use a currency display in the salesroom for informational purposes only. The currencies and bids listed on the currency converter 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 currency converter. To be clear, the bid price stated by the auctioneer is the prevailing and binding bid price.
17. Title Transfer.
17.1. If the Buyer of a Lot(s) resides in the United States, in an effort to ensure all titles are free and clear of liens or encumbrances, RMS manages the process of title reassignment on behalf of the Buyer. Buyers will receive titles in the mail as soon as possible following the auction with a target of a maximum of 20 business days following the auction; however, please note that for reasons beyond RMS’ control, including any delays in lien releases by lien holder(s) and/or delays by the Department of Motor Vehicles (or equivalent) in certain states, there are instances where the Buyer may not receive the title within 20 business days and, in those circumstances, RMS will work to provide the titles to the Buyer as soon as possible. A US$150.00 administration fee (US$170.00 in the State of California) will be assessed per motor car purchased.
17.1.1. If a Lot(s) is rendered “Title in Transit,” it is unlikely that the Buyers will receive the title in the mail within 20 business days following the auction; however, RMS will work to provide the titles to the Buyer as soon as possible.
17.1.2. The Buyer acknowledges that delays in transferring titles, including due to delays at government Motor Vehicle departments, happen from time to time, and the Buyer will hold RMS harmless from any allegations of damages arising such delays.
17.2. If the Buyer of a Lot(s) resides outside the United States, RMS will use its reasonable efforts to assist with the transfer of ownership; however, it is the responsibility of the Buyer to transfer ownership in compliance with their jurisdictional rules and regulations.
18. Removal of Purchased Lot(s).
18.1. All purchased Lot(s) must be removed by the Buyer from the location in which they resided during the auction within 5 business days of the auction (“RMS Removal Deadline”) contingent upon payment being made.
18.2. If the RMS Removal Deadline is not met, the Buyer will be charged a removal fee of US$1,500.00 and a daily storage fee of up to US$300.00 per Lot(s) (“Removal and Storage Fee”) until the Lot(s) are removed.
18.3. Please note that the Buyer is required to insure their Lot(s) while the Lot(s) is being stored on their behalf.
18.4. If the Lot(s) is not removed for one calendar year from the RMS Removal Deadline and other arrangements have not been made, RMS has the right to (i) auction the Lot(s), (ii) retain its standard Buyers’ Premium, Removal and Storage Fee, and other applicable expenses, and (iii) return the remaining payment to the Buyer.
19. Legal Action. 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 shall first be determined via mediation as a condition precedent to arbitration, and, if mediation is unsuccessful, the parties shall proceed to arbitration in New York, New York, before one arbitrator. The 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.
20. Choice of Law: These Conditions of Business shall be interpreted in accordance with the laws of the State of New York.
21. Packing and Shipping. RMS is not responsible for the acts or omissions in our packing or shipping of purchased Lot(s) or of other carriers or packers of purchased Lot(s), whether or not recommended by RMS. Packing and handling of purchased Lot(s) 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 Anti-Money Laundering Laws and Regulations in force in the jurisdiction in which the auction is held.
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 a Lot(s), 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. Licenses. The auction will be produced by RM Auctions, Inc. d.b.a. RM Sotheby’s of 1334 York Ave, New York, NY 10021 (New York State Department of Motor Vehicles Facility Identification No. 7120237).
27. Minimum Price Guaranteed for Consignor. The Consignor of the Lot(s) has been guaranteed a minimum price for this Lot(s). RMS may choose at its sole discretion to subrogate its guarantee exposure with an Irrevocable Bid from a third party. The third party providing the Irrevocable Bid may benefit financially if the guaranteed Lot(s) is sold successfully.
28. Irrevocable Bid. There is an Irrevocable Bid on the Lot(s) provided by a third party (“Irrevocable Bidder”). In return for providing an Irrevocable Bid, the Irrevocable Bidder may benefit financially based on the final hammer price.
29. Consumer Protection Rights. 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 consumer protection laws, the Buyer has the automatic statutory right for 14 calendar days after the Close of Lot (drop of hammer) to rescind the sale of the Lot(s). Nothing in this clause 29 shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
29.1. The definition of Business for these Conditions of Business is a natural person or legal entity in the business of selling automobiles and acting for purposes relating to such business (“Business”).
29.2. RMS reserves the right to make the reasonable determination as to whether a Consignor meets the definition of Business.
29.3. Bidders who exercises this right is responsible for any and all expenses associated with the Lot(s) including, but not limited to, transportation, duty, storage, insurance, and taxes.
29.4. If the Bidder exercises this right they are advised to insure the Lot(s) until the Consignor re-takes possession of the Lot(s).
