CONSIGNORS’ CONDITIONS OF BUSINESS
Please ensure that you have read and understood these Conditions of Business prior to consigning a vehicle(s) at this or any other RM Auctions, Inc. d.b.a. RM Sotheby’s “RM” sale.
1. No-Sale of Vehicle(s).
1.1 At the termination of this agreement due to a no-sale, RM shall return the vehicle(s) (meaning multiple vehicles if the Consignor consigns multiple vehicles) to the Consignor or, at the option of both the Consignor and RM, enter into a new agreement.
1.2 In the event the vehicle(s) are not sold, the vehicle(s) must be removed from the auction site by 3:00 p.m. on the next business day following the auction. If the lot(s) are not removed by the Consignor by 3:00 p.m. on the next business day following the sale, the Consignor will be charged a removal fee up to $450.00 (USD), and a storage fee of $25.00 (USD) per day will be charged until the lot(s) are removed. Please note that the Consignor is required to insure their lot(s) while they are being stored on their behalf.
2. RM Receiving Vehicle(s) in Trust. The consigned vehicle(s) or asset(s) are delivered to RM in trust under the exact terms set forth in this agreement. RM agrees to receive the vehicle(s) in trust and not to permit their use for any other purposes, other than those contained in this agreement, without the expressed written consent of the Consignor.
3. Services. RM agrees to provide auction services, a sale facility, clerks, support staff, and event advertising and promotion.
4. Commissions. In the event that the vehicle(s) are sold, the Consignor agrees to pay the sales commission on the last accepted bid to RM, as indicated in the Commissions Section on the previous page in this package. Further, the Consignor acknowledges that RM will collect a Buyer’s Premium from the Buyer(s) of the vehicle(s) in question based on the last accepted bid on the vehicle(s). Please note the Buyer’s Premium is subject to change at the discretion of RM.
5. Exclusivity. The Consignor grants to RM the exclusive right and authority to advertise and sell the vehicle(s) for a period beginning with the date of this Agreement and ending sixty (60) business days following the auction. If during this period the vehicle(s) 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(s) to any third party, the Consignor agrees to make immediate payment of the applicable Buyer’s Premium and Seller’s Commission as outlined in this Agreement to RM on the sale price of the vehicle(s).
6.1 The Consignor warrants that the Consignor is the sole and only owner of the vehicle(s) and that the Consignor has full right and authority to sell the vehicle(s).
6.2 The Consignor agrees to provide RM with a good, clear, and transferable title(s) to the vehicle(s) in advance of the auction;
6.3 RM will correct, at the Consignor’s expense, any title defects; as well as recover any associated expenses.
6.4 In order to facilitate and transfer the title(s) for the vehicle(s), the Consignor agrees to sign a Power of Attorney attached in this package.
6.5 If the vehicle(s) are not sold, the title(s) will be returned by courier within thirty (30) business days following the conclusion of the auction as long as the Consignor’s account is paid up in full.
7.1 As an accommodation to the Consignor, RM agrees to act as an intermediary between the Consignor and the Buyer(s) by accepting the purchase price from the Buyer(s), transferring the vehicle(s) to the Buyer(s), and delivering the amounts due to the Consignor under this agreement. If the vehicle(s) are sold by RM 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 RM either (i) receives the purchase price or its equivalent or executes a conditional sales contract for the vehicle(s) or (ii) when the Buyer(s) takes delivery of the vehicle(s), whichever occurs first.
7.2 The Consignor authorizes RM to release the vehicle(s) to the successful Buyer(s).
7.3 The Consignor agrees to rely solely upon the Buyer(s) for payment.
7.4 Before payment of any money due to the Consignor is to be made, the Consignor agrees to provide RM with the documents necessary to transfer the ownership of the vehicle(s) to the Buyer(s).
8. Non-Payment by Buyer(s). In the event of non-payment by the Buyer(s), RM will endeavor to use reasonable efforts to enforce payment from the Buyer(s); however, RM shall not be liable to the Consignor for payment. If the Buyer(s) does not pay RM, then, at RM’s sole discretion, RM may cancel the sale and return the vehicle(s) to the Consignor, enforce payment by the Buyer(s), or take other actions permitted by law. Notwithstanding the proceeding sentences, if RM has paid any portion of the purchase price to the Consignor, but the purchase price has not been collected from the Buyer(s) of the vehicle(s), the Consignor hereby agrees, simultaneously with such payment, to assign to RM any and all rights that the Consignor may have against such Buyer(s) 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 RM, at RM’s sole discretion, to impose on any Buyer(s), and retain for RM’s account, a late charge if payment is not made in accordance with the Conditions of Business.
9. Representations. The Consignor acknowledges that it is impossible to accurately predict the selling price or the time of sale for the vehicle(s), and accordingly, no such representations are made by RM.
10. Vehicle(s) Description.
10.1 The Consignor agrees to accept sole responsibility and liability for any representations made by RM that accurately repeat the information supplied by the Consignor as to the character, features, condition, correctness, authenticity, or history of the vehicle(s) and to indemnify, defend, and hold RM harmless from any claims that may be made with respect to any such representations.
10.2 The Consignor is required to review and approve all catalogue descriptions.
11. Vehicle(s) Operation. The Consignor warrants that the vehicle(s) are in a safe, operable condition to be driven by RM’s employees or representatives. The Consignor acknowledges that should RM, at RM’s sole discretion, determine that the vehicle(s) are not safe to operate, the vehicle(s) will not be allowed across the block under their own power. The Consignor acknowledges that RM can perform up to $500.00 (USD) of repairs, improvements, detailing, etc. as RM deems necessary without seeking written approval from the Consignor which will be recapped from the Consignor upon the sale of the vehicle(s) or if the vehicle(s) are a no sale at auction the Consignor must pay for the repairs, improvements, detailing, etc. before the vehicle(s) will be returned to the Consignor.
12. Drivers. The Consignor acknowledges and grants permission for RM and its employees and agents to drive or move the vehicle(s) from time to time before, during, or after the sale. The Consignor acknowledges that it is the Consignor’s responsibility to maintain sufficient insurance coverage to permit such driving, and the Consignor specifically agrees to indemnify, defend, and hold RM harmless, as provided in this agreement, from any liability that may result from such driving or movement of the vehicle(s).
13. Cancellation of Sale.
13.1 RM has the sole discretion to cancel an auction or the sale of the vehicle(s) and will not be liable to the Consignor for any losses or damages resulting from the cancellation if RM believes the following events have occurred or have a reasonable probability of occurring:
13.1.1 Natural disaster;
13.1.2 Structural damage to auction venue prior to the auction;
13.1.3 Terrorist event;
13.1.4 Government/Court action, order, injunction, regulation, or law that necessitates a cancellation;
13.1.5 RM opines that the vehicle(s) have been misrepresented by the Consignor;
13.1.6 RM opines that physical damage to the vehicle(s), which cannot be sufficiently repaired prior to the auction, occurred after this agreement was signed;
13.1.7 RM is threatened with a lawsuit from a third party;
13.1.8 RM faces reputational damages for selling the vehicle(s); or
13.1.9 RM faces liability or losses by selling the vehicle(s).
14. Estimates and Catalogue Descriptions. Any presale estimates are intended as guides for prospective bidders. RM makes no representation or warranty of the anticipated selling price of the vehicle(s), and no estimate anywhere by RM of the selling price of the vehicle(s) 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 RM from time to time at its sole discretion. The Consignor acknowledges that RM will not be liable for any errors or omissions in the catalogue or other descriptions of the vehicle(s), and these descriptions make no guarantees, representations, or warranties whatsoever to the Consignor with respect to the vehicle(s), their attribution, legal title, condition, value, or other characteristics.
15. 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.
16.1 The reserve price(s) noted on the reverse of this contract is the lowest bid acceptable to the Consignor. The reserve(s) may be lowered at any time by the Consignor, either verbally or in writing, but they may not be raised. The reserve(s) do not include commissions to RM. RM has the right to sell the vehicle(s) at a price below the agreed verbal or written reserve(s) provided that the Consignor receives the same net proceeds as the Consignor would have received had the reserve(s) been met. If no reserve(s), indicate clearly by writing “NONE” in the space provided.
16.2 If RM contributes to the hammer price to meet the reserve(s), the reserve(s) for the respective vehicle(s) become the hammer price plus RM’s contribution for purposes of commissions.
17. Insurance. The Consignor will be responsible for maintaining adequate property insurance on the vehicle(s) at all times, and this insurance must be at least equal to the aggregate low presale auction estimate for the vehicle(s), which in each case shall include insurance for damages to the vehicle(s) and shall not be cancellable by the insurance company until after ownership and title(s) have passed to the Buyer(s) and the Buyer(s) have taken possession of the vehicle(s) from RM. RM does not maintain insurance with respect to the Consignor’s vehicle(s), but RM does carry Garage Keeper’s Insurance to cover RM employees’ acts of gross negligence while the vehicle(s) are in the care, custody, and control of RM. With the exception of RM’s employees’ acts of gross negligence, the Consignor agrees that RM and their respective affiliates and agents will not be responsible for, and the Consignor releases RM and their respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the vehicle(s).
18. Withdrawn Lots.
18.1 Consignor acknowledges that RM has incurred and will incur significant costs preparing, advertising, marketing, and promoting the vehicle(s) for the auction.
18.2 If the Consignor withdraws one or more of the vehicle(s) from the auction after the signing of this agreement, the Consignor will pay RM the Buyer’s Premium and Seller’s Commission that would have been due under this agreement, had the vehicle(s) met (i) their reserve(s), (ii) if offered without reserve(s) then the vehicle(s) published low estimate(s), or (iii) if no published low estimates(s), then the vehicle(s) fair market value as determined by RM, by five PM (5:00 pm) of the next business day following the auction.
19. 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.
20. Marketing Fee. The marketing fee is non-refundable and is not credited toward the sales commission.
21. Bidding Restrictions. The Consignor hereby agrees not to bid on the vehicle(s). Although the auctioneer shall be entitled to bid on the Consignor’s behalf up to the amount of the reserve(s) (if applicable), the Consignor shall not instruct nor permit any other person to bid on behalf of the Consignor for the vehicle(s). If, however, in violation of the foregoing, the Consignor (or his agent) bids on the vehicle(s) and becomes the successful bidder, the expenses, entry fee, repair expenses, Buyer’s Premium, and Seller’s Commission on the hammer price shall be payable by the Consignor; the vehicle(s) may be sold without reserve(s); and the Consignor will not be entitled to the benefit of any warranties under the Conditions of Sale.
22. Anti-Freeze is the Responsibility of the Consignor.
22.1 As the Consignor’s vehicle(s) could be shipped to a location where below freezing temperatures are a possibility, it is the Consignor’s responsibility to ensure that within the last six (6) months they have winterized their vehicle(s) for shipping in freezing temperatures. Winterizing one or more of the vehicle(s) means that the Consignor has completely filled and properly mixed, at a minimum, negative twenty degrees Fahrenheit rated (-20 °F) anti-freeze into their vehicles’ radiators.
22.2 If any damage occurs because the Consignor did not properly winterize their vehicle(s), it will be the Consignor’s responsibility to cover the damages, and RM may recap these damages from the Consignor’s settlement. If it is found that the Consignor did not properly winterize their vehicle(s), the associated costs with checking, filling, and disposing the anti-freeze will be recapped from the Consignor’s settlement; if the vehicle(s) are not sold, the Consignor must pay RM before the Consignor can re-take possession of their vehicle(s). If already settled, the Consignor must pay RM directly.
23. 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.
24. 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, RM 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 RM has acted as the Consignor’s attorney or tax advisor.
25. Notice to Consignor as required by California Department of Motor Vehicles Code Section 11729. Failure of RM 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 RM has not compiled with the terms of this agreement, please contact an investigator of the Department of Motor Vehicles.
26. Contract Cancellation Agreement. In the event of a successful bid, if the vehicle has a combined hammer price and Buyer’s Premium equaling less than $40,000.00 (USD) under the Car Buyer’s Bill of Rights (FFVR 35), RM is required to offer a two (2) day contract cancellation option agreement to the successful buyer. If the Buyer exercises this contract cancellation option, RM is obligated to return any funds paid by the Buyer and cancel the sale. If the sale is canceled, RM is under no obligation to pay the Consignor for the vehicle; and the vehicle will be deemed a no sale as outlined in clause 1.