CONSIGNORS’ CONDITIONS OF BUSINESS
Please ensure that you have read and understand these Conditions of Business prior to consigning a vehicle at this or any other Auctions America by RM, Inc. “AA” sale.
1. No-Sale of Vehicle. At the termination of this agreement due to a no-sale, AA shall return the vehicle (meaning multiple vehicles if the Consignor consigns multiple vehicles) to the Consignor or, at the option of both the Consignor and AA, enter into a new agreement.
2. AA Receiving Vehicles in Trust. The consigned vehicle or asset is delivered to AA in trust for the exact terms set forth in this agreement. AA agrees to receive this vehicle in trust and not to permit its use for any other purpose, other than those contained in this agreement, without the expressed written consent of the Consignor.
3. Services. AA agrees to provide auction services, a sale facility, clerks and support staff, and event advertising and promotion.
4. Commissions. In the event that the vehicle is sold, the Consignor agrees to pay the sales commission on the last accepted bid to AA, as indicated in the Commissions Section on the previous page in this package. Further, the Consignor acknowledges that AA will collect a Buyer’s premium from the Buyer of the vehicle in question based on the last accepted bid on the vehicle.
5. Exclusivity. The Consignor grants to AA the exclusive right and authority to advertise and sell the vehicle for a period beginning with the date of this agreement and ending thirty (30) business days following the sale. If during this period the vehicle should be sold or exchanged for money or other goods or an introduction should be made that results in the subsequent sale or exchange of the vehicle to any third party, the Consignor agrees to make immediate payment to AA for the sales commission described in the paragraph above. The commission will be based upon the sale price. AA may retain possession of the vehicle or title until payment is made, in addition to any other legal remedies that may be available.
6. Title. The Consignor warrants that the Consignor is the sole and only owner of the vehicle and that the Consignor has full right and authority to sell the vehicle, which includes possessing a clear title and consent from any lienholders. The Consignor agrees to provide the Buyer with a good, clear, and transferable title to the vehicle and to correct, at the Consignor’s expense, any title defects and to pay any expenses associated with providing the Buyer with a good, clear, and transferrable title according to the requirements of the state, province, or country where the Buyer seeks to register the vehicle. Salvage titles or lien papers are not acceptable. Please note that if title searches are not returned clean, at AA’s sole discretion the lot will not be entered in the auction and the marketing fee will be retained by AA.
7. No-Sale Titles. Titles for vehicles that are not sold will be returned by mail within thirty (30) business days following the conclusion of the auction.
8. Payment. As an accommodation to the Consignor, AA agrees to act as an intermediary between the Consignor and the Buyer, to accept the purchase price from the Buyer, to transfer the vehicle to the Buyer, and to deliver the amounts due to the Consignor under this agreement. If the vehicle is sold by AA during the term of this agreement, the money due to the Consignor shall be disbursed within twenty (20) business days after the sale, in accordance with the terms of this agreement. As used in this agreement, a “sale” occurs when AA either (i) receives the purchase price or its equivalent or executes a conditional sales contract for the vehicle or (ii) when the Buyer takes delivery of the vehicle, whichever occurs first.
Within twenty (20) business days after being sold, AA shall make an account for the Consignor of all of the following: the date of sale, repairs authorized by the Consignor (supported by work records), exact amount of any liens payable to lienholders, evidence of payment of any liens, and the total sales price.
The Consignor authorizes AA to release the vehicle to the successful Buyer and agrees to rely solely upon the Buyer for payment. The Consignor specifically releases AA from any and all legal obligation for collection costs, attorneys’ or legal fees, or any other expenses associated with the sale of the vehicle and the collection of payment. If, as a convenience to the Consignor, AA should issue payment to the Consignor on behalf of the Buyer, the payment can be revoked, cancelled, or withheld at any time, at AA’s sole discretion, until payment has been received from the Buyer. All or a portion of the sale proceeds may be withheld by AA to satisfy any debt or obligation owed by the Consignor to AA with respect to this or any other agreement.
Upon payment of the money due to the Consignor, the Consignor agrees to provide AA with the documents necessary to transfer the ownership of the vehicle or asset to the Buyer.
9. Non-Payment by Buyer. In the event of non-payment by the Buyer, AA has no obligation to enforce payment on them. If the Buyer does not pay AA, then, at AA’s sole discretion, AA may cancel the sale and return the vehicle to the Consignor, enforce payment by the Buyer, or take other actions permitted by law. Notwithstanding the proceeding sentences, if AA has paid any portion of the purchase price to the Consignor, but the purchase price has not been collected from the Buyer of the vehicle, the Consignor hereby agrees, simultaneously with such payment, to assign to AA any and all rights that the Consignor may have against such Buyer to the extent of such payment, whether at law, in equity, or under the Conditions of Business. The Consignor agrees to execute any documents reasonably necessary to evidence this assignment, including, with respect to the Consignor’s representations, warranties and indemnities set forth in this Agreement. The Consignor authorizes AA, at AA’s sole discretion, to impose on any Buyer, and retain for AA’s account, a late charge if payment is not made in accordance with the Conditions of Business.
10. Representations. The Consignor acknowledges that it is impossible to accurately predict the selling price or the time of sale for the vehicle, and accordingly, no such representations are made by AA.
11. Vehicle Description. The Consignor agrees that the Consignor accepts sole responsibility and liability for any representations made by AA based upon information supplied by the Consignor as to the character, features, condition, correctness, authenticity, or history of the vehicle, and to indemnify, defend, and hold AA harmless, as provided in this Agreement, from any claims that may be made with respect to any such representations.
12. Vehicle Operation. The Consignor warrants that the vehicle is in a safe, operable condition to be driven by AA’s employees or representatives. The Consignor acknowledges that should AA, at AA’s sole discretion, determine that the vehicle is not safe to operate, the vehicle will not be allowed across the block under its own power.
13. Drivers. The Consignor acknowledges and grants permission for AA and its employees and agents to drive or move the vehicle 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, and the Consignor specifically agrees to indemnify, defend, and hold AA harmless, as provided in this agreement, from any liability that may result from such driving or movement of the vehicle.
14. Cancellation of Sale. AA may, at AA’s sole discretion and without any obligation to do so, cancel or rescind the sale of the vehicle if it determines or has reason to believe that the offer for sale may subject AA, the Consignor, or both to any liability, including but not limited to liabilities due to representations made by the Consignor or due to insufficient title or authority. In the event of such a cancelation, AA shall have the right to refund or credit the Buyer the full purchase price. In the event that the Consignor has received all or part of the proceeds, the Consignor agrees to repay such amounts. The Consignor also agrees to accept the return of the vehicle as full and complete settlement of this agreement.
15. Estimates and Catalogue Descriptions. Presale estimates, if any, are intended as guides for prospective bidders. AA makes no representation or warranty of the anticipated selling price of the vehicle, and no estimate anywhere by AA of the selling price of the vehicle may be relied upon as a prediction of the actual selling price. Estimates included in receipts, catalogues, or elsewhere are preliminary only, and they are subject to revision by AA from time to time at its sole discretion. The Consignor acknowledges that AA will not be liable for any errors or omissions in the catalogue or other descriptions of the vehicle, and they make no guarantees, representations, or warranties whatsoever to the Consignor with respect to the vehicle, its attribution, legal title, condition, value, or otherwise.
16. Odometer Statement. The Consignor agrees to provide a duly executed odometer statement on or before the first day of the sale and to accept sole responsibility for the accuracy or inaccuracy of such statement.
17. Reserve Price. The reserve price bid noted on the reverse of this contract is the lowest bid acceptable to the Consignor. The reserve bid may be lowered at any time by the Consignor, either verbally or in writing, but it may not be raised. The reserve bid does not include commissions to AA. AA reserves the right to sell the vehicle at a price below the agreed verbal or written reserve price provided that the Consignor receives the same net proceeds as the Consignor would have received had the reserve bid been met. If no reserve, indicate clearly by writing “NONE” in the space provided.
18. Insurance. The Consignor will be responsible for maintaining adequate property insurance on the vehicle at all times, and this insurance must be at least equal to the aggregate low presale auction estimate for the vehicle, which in each case shall include insurance for damages to the vehicle and shall not be cancellable by the insurance company until after ownership and title has passed to the Buyer and the Buyer has taken possession of the vehicle from AA. AA does not maintain insurance with respect to the Consignor’s vehicle, but AA does carry Garage Keeper’s Insurance to cover AA employees’ acts of gross negligence while the vehicle is in the care, custody, and control of AA. With the exception of AA’s employees’ acts of gross negligence, the Consignor agrees that AA and their respective affiliates and agents will not be responsible for, and the Consignor releases AA and their respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the vehicle.
19. Withdrawn Lots. The Consignor acknowledges that AA has incurred and will incur significant costs and expenses in fulfilling its obligations under this Agreement. The Consignor further acknowledges that its withdrawal of the vehicle from the auction constitutes a breach of this agreement, and the damages for which would be difficult and impractical to determine. As a result, the parties agree that the amounts payable, as set forth in this paragraph, constitute reasonable liquidated damages. Should the Consignor choose to remove its vehicle following the signing of this agreement, the Consignor agrees to pay AA twenty percent (20%) of the reserve for vehicles listed with a reserve or twenty percent (20%) of the low estimate for vehicles listed without a reserve or, if neither a reserve or a low estimate is listed, twenty percent (20%) of the fair market value of the vehicle.
20. Liability. The Consignor shall indemnify, defend, and hold harmless AA, its shareholders, officers, directors, employees, agents, and auctioneers from any and all loss, costs, damage, expense, or liability, including, without limitation to, court costs and attorneys’ fees arising out of or in any way related to the Consignor’s consignment of the vehicle to AA under this Agreement, except where such liability relates solely to AA’s gross negligence or willful misconduct.
21. Legal Action. In the event that either party brings action against the other arising from or relating to the provisions of this agreement, the prevailing party, as determined by the court, shall be entitled to recover its reasonable attorneys’ fees and costs. The law of the state in which the auction is held shall govern the provisions of this agreement.
22. Marketing Fee. The marketing fee is non-refundable and is not credited toward the sales commission.
23. Bidding Restrictions. The Consignor hereby agrees not to bid on the vehicle. Although the auctioneer shall be entitled to bid on the Consignor’s behalf up to the amount of the reserve (if applicable), the Consignor shall not instruct or permit any other person to bid on behalf of the Consignor for the vehicle. If, however, in violation of the foregoing, the Consignor (or his agent) bids on the vehicle and becomes the successful bidder, the expenses, Buyer’s premium, and seller’s commission on the hammer price shall be payable by the Consignor, the vehicle may be sold without reserve, and the Consignor will not be entitled to the benefit of any warranties under the Conditions of Sale.
24. Advances. If an advance is given by AA, the Consignor grants a security interest to AA in the vehicles pledged in support of any and all advances provided by AA. The Consignor shall deliver (i) original titles of the vehicles, (ii) an executed power of attorney, granting AA authority to register a lien on the vehicles and/or sell the vehicles, and (iii) any related supporting documentation. In the event that the Consignor withdraws lots, terminates the Consignment Agreement, defaults, or there occurs a dispute between the Consignor and AA, the Consignor shall return the full amount of all advances and costs to AA within ten (10) business days of demand, following which AA shall return the original titles of the vehicles to the Consignor within five (5) business days of receipt of the full amount of all advances and costs. If the advances are not returned to AA within ten (10) business days of demand, the Consignor shall deliver the vehicles to AA, and AA shall have the right to sell the vehicles to recover the full amount of the advances and costs, and any excess from such sales shall be delivered to the Consignor.
25. Entire Agreement. This document contains the entire agreement between the parties and shall be binding upon them and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, this agreement shall not be modified, except in writing. Whenever used in this agreement, 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.
26. No Legal or Tax Advice. This agreement is an important legal document. The Consignor acknowledges that the Consignor has had the opportunity to consult an attorney before signing this agreement and has signed 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, AA has not provided legal or tax advice or tax planning to the Consignor or for the Consignor’s benefit in connection with the transactions contemplated by this agreement, and no one at AA has acted as the Consignor’s attorney or tax advisor.
27. Notice to Consignor. Failure of AA to comply with the terms of this agreement may be in violation of statute, which could result in criminal or administrative sanctions or both. If you feel AA has not complied with the terms of this agreement, please contact an investigator of the Department of Motor Vehicles.
