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 a lot of memorabilia including, but not limited to, automobile parts, accessories, tools, and/or engines (“Lot(s)”) at an RM Auctions, Inc. d.b.a. RM Sotheby’s (“RMS”) Online Only auction (the “Online Only Auction”).
1.2. Each Bidder in the Online Only Auction (“Bidder”) is responsible to understand, review, and agree to these Conditions of Business. As a Bidder you are agreeing to be bound by these Conditions of Business for the Online Only Auction. Please note that the Conditions of Business are subject to change from time to time and will be posted on RMS’ website as the case may be. Bidders are encouraged to contact RMS’ Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Conditions of Business.
1.3. RMS’ contractual relationship with the Bidders are governed by:
1.3.1. These Conditions of Business;
1.3.2. The Conditions of Business displayed on RMS’ website;
1.3.3. The Lot(s) description on www.rmsothebys.com (“Website”); and
1.3.4. In each case as amended by any notice, auctioneer’s announcement, or website update.
(Clauses 1.3. to 1.3.4. together are “Contractual Obligations”)
1.4. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot(s) (“Consignor”), and if a Consignor’s Lot(s) is sold at the Online Only Auction, a sales contract is made directly between the Consignor and the winning Bidder (the “Buyer”).
1.4.1. Occasionally, RMS may own a Lot(s) (and, in such circumstances, acts in a principal capacity as the seller) and/or may have a legal, beneficial, or financial interest in a Lot(s) as a secured creditor or otherwise, in which case RMS will disclose such interest with appropriate symbols and/or legend referenced in the Online Only Auction Lot(s) description on the Website.
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 any Lot(s) offered at the Online Only Auction (“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 any Lot(s) offered in the Online Only Auction. Lot(s) descriptions, statements in online content, pre-mailers, advertisements, brochures, signs, and window cards, as well as verbal statements made by Consignors, auctioneers or Online Only 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.
4. Services. RMS may provide services including clerks, support staff, advertising, and promotion. In connection with the Online Only Auction, RMS will have absolute discretion with regard to the Lot(s) as to (a) consulting any expert either before or after the Online Only Auction, (b) researching provenance, (c) grouping and providing 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).
5. Bidding at Online Only Auction.
5.1. The Online Only Auction will begin on the date notified to you when you register for the Online Only Auction and will follow a timed-auction format. Lot(s) are expected to close on 24 September 2021.
5.2. To bid at the Online Only 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 written on bank letterhead; RMS may waive this requirement at its sole discretion; (iv) providing RMS with a copy of a credit card; and (v) 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”).
5.3. 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 Online Only Auction specifically prior to being accepted to bid.
5.4. 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 Online Only Auction.
5.5. Once you have satisfied the Bidder Registration Requirements, you will be able to place bids against Lot(s) at the Online Only Auction. To place a bid, the Bidder must follow the instructions and processes on the Online Only Auction platform.
5.6. Once made, no Bidder may retract a bid made during the Online Only Auction for any reason.
5.7. If a bid placed by another bidder exceeds your bid, you will be notified via the email address you provided during registration, and the webpage of the Lot(s) will indicate you have been outbid.
5.8. If a bid is placed within the final two minutes of the bid acceptance period for an individual Lot(s), the Online Only Auction period for that individual Lot(s) will be extended by an additional two minutes to prevent a Bidder from trying to place a high bid in the final moments of the Online Only Auction for that individual Lot(s).
5.9. There is no “cooling-off period”, cancellation, or rescission of bids.
5.10. If at the end of the Online Only Auction, you are awarded the final bid on a Lot(s), ownership automatically changes hands at the close of the Lot(s) (“Close of Lot(s)”). At the Close of Lot(s), you are now the legal owner of the applicable Lot(s) and are responsible for payment in full.
5.10.1. To clarify, the term “Close of Lot(s)” shall be defined as the time that the time-based auction expires.
5.11. The Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot(s).
5.12. 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(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.
5.13. By participating in the Online Only 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.
5.14. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
6. Purchase Price.
6.1. The purchase price shall consist of the following:
6.1.1. the Hammer Price (defined below) of the Lot(s), and
6.1.2. the applicable Buyers’ Premium (defined below).
(Clauses 6.1. to 6.1.2. together are “Purchase Price”)
7. Buyers’ Premium. In addition to the Hammer Price, the Buyer is required to pay RMS 10% of the Hammer Price which RMS retains as the Buyers’ Premium for the purchase of each Lot(s) (“Buyers’ Premium”).
8. Taxes. The Buyer is responsible to pay all applicable taxes, duties, tariffs, and any and all other government mandated costs associated with purchasing Lot(s) (“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 Online Only 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 Online Only Auction. A further condition of bidding at the Online Only 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 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.
10. Credit Card Hold. Please note that in order to register to bid at the Online Only Auction, RMS requires a hold of $2,000 USD to be placed on the Bidder’s credit card from the date of registration until the close of the Online Only Auction (“CC Hold”). If the Bidder is not the Buyer of the Lot(s), the CC Hold will be removed from the credit card in accordance with the Bidder’s specific credit card companies’ procedures. If the Bidder is the Buyer of the Lot(s), the Bidder will be required to make payment to RMS in accordance with clause 12 (Payment) of these Conditions of Business.
11. Expenses and Fees: Expenses and fees as outlined in these Conditions of Business include, but are not limited, to transportation, duty, storage, Refundable Removal Fee(s) (defined below), 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 12 (Payment).
12. Payment.
12.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot(s), the contract between the Consignor and the Bidder is concluded and irrevocable.
12.2. The value of the last accepted bid upon the Close of Lot(s) is the Hammer Price (“Hammer Price”).
12.3. 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.
12.4. For any purchases under $5,000.00, the Bidder acknowledges and agrees that his/her credit card against which the CC Hold has been taken will automatically be used as the payment method for the Hammer Price of the Lot(s), applicable Buyers’ Premium, and Expenses and Fees. Special payment arrangements can be made for multiple Lot(s) purchases, which the Bidder is welcome to discuss with an RMS representative upon completion of the Online Only Auction.
12.5. For final purchases exceeding $5,000.00, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
12.6. 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 Expenses and Fees.
13. Non-Payment.
13.1. 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:
13.1.1. 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.
13.1.2. 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.
13.1.3. 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 have 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:
13.1.3.1. Purchase Price;
13.1.3.2. Applicable Expenses and Fees;
13.1.3.3. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
13.1.3.4. Other damages reasonably related to the Bidder’s non-payment.
13.1.3.5. 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.
13.2. 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(S), THE NON-PAYMENT, OR RMS’ ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 13.1.
14. Reserves.
14.1. 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.
14.2. 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.
15. Cancellation/Rescission of Online Only Auction. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the Online Only 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 that despite reasonable efforts, restricts RMS from holding the Online Only Auction; and
15.1.2. 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 Online Only 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 the Online Only Auction that necessitate or make prudent a cancellation.
16. 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 chance of occurring:
16.1. RMS opines that the Lot(s) has been intentionally or materially misrepresented by the Consignor;
16.2. RMS opines that physical damage to the Lot(s), which cannot be sufficiently repaired prior to the Online Only 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(s);
16.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot(s);
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(s) 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(s) at the Online Only 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 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 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.
17. Online Only Auction Services Are “As Available” and “As Is.”
17.1. Bidders may be able to bid via websites, telephone services, applications, RMS’ online platform, and tools (collectively “Services”).
17.2. 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. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RMS’ control.
17.3. Bidders agree that they are making use of the Services at their own risk and that the Services are being provided to Bidders 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.
18. Bid Display. RMS may use a bid display/currency conversion function on the Online Only Auction platform; however, these are for informational purposes only and, the Buyer will be required to make payment to RMS in accordance with clause 12 (Payment) of these Conditions of Business.
19. Removal of Purchased Lot(s).
19.1. All components of the purchased Lot(s) must be removed by the Buyer from the location in which they resided during the Online Only Auction by 15 October 2021 (“RMS Removal Deadline”).
19.2. The Lot(s) will be offered with an applicable refundable removal fee (“Refundable Removal Fee(s)”). If the Buyer fully complies with removing the Lot(s) before the RMS Removal Deadline, the Buyer will be refunded the applicable Refundable Removal Fee(s); however, if the Buyer(s) does not comply with removing the Lot(s) before the RMS Removal Deadline, RMS will retain the applicable Refundable Removal Fee(s) and use the Refundable Removal Fee(s) to dispose of any remaining parts, pieces, and/or tools of the Lot(s).
19.3. Please note that the Buyer is required to insure their Lot(s) while the Lot(s) is being stored on their behalf.
19.4. 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 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 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 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 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 this Online Only Auction, 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(s) or the Online Only Auction shall be the Buyers’ Premium that would have been due under clause 7 of these Conditions of Business had the Lot(s) (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 RMS.
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 Online Only 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-sniping: If a bid is placed within the final two minutes of bids being accepted on an individual Lot(s), the Online Only Auction for that individual Lot(s) may be extended up to an additional two minutes to prevent a Bidder from trying to place a high bid in the final moments of the Online Only Auction for that individual Lot(s).
24. 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.
25. 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.
26. Translations.
26.1. 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.
26.2. If there is a discrepancy, contradiction, or question of interpretation in a description for a Lot(s), 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.
27. Licenses. The Online Only Auction will be produced by RM Auctions, Inc. of 5536 County Road 11A, Auburn, IN 46706 (Indiana Secretary of State Dealer License No. 1800217).
28. 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 28 shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
28.1. 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”).
28.2. RMS reserves the right to make the reasonable determination as to whether a Consignor meets the definition of Business.
28.3. Bidders who exercise 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.
28.4. If the Bidder exercises this right, they are advised to insure the Lot(s) until the Consignor re-takes possession of the Lot(s).
