BIDDER’S CONDITIONS OF BUSINESS
1. Introduction.
1.1. Please ensure that you read and understand these Bidder’s Conditions of Business (the “Conditions of Business”) prior to bidding on the 1958 Mercedes-Benz 300SL Roadster, Chassis No.: W1980428500083 (the “Lot”) at the RM Auctions Suisse Sàrl d.b.a. RM Sotheby’s (“RMS”) sealed-bid auction (the “Sealed-Bid Auction”).
1.2. Each bidder in the RMS Sealed-Bid Auction (the “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 RMS Sealed-Bid Auction. Please note that, these 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 is governed by:
1.3.1. These Conditions of Business;
1.3.2. The Conditions of Business displayed on RMS’ website;
1.3.3. The Key to Lot Symbols and/or Legend referenced in the Lot description on www.rmsothebys.com (the “Website”) as the case may be; 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. collectively, the “Contractual Obligations”)
1.4. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot (the “Consignor”), and if the Consignor’s Lot is sold at the RMS Sealed-Bid Auction, a sales contract is made directly between the Consignor and the winning Bidder (the “Buyer”).
1.4.1. Occasionally, RMS may own the Lot (and, in such circumstances, acts in a principal capacity as the seller) and/or may have a legal, beneficial, or financial interest in the Lot as a secured creditor or otherwise, in which case RMS will disclose such interest with appropriate Symbols and/or Legend referenced in the RMS Sealed-Bid Auction Lot description on the Website.
2. Requirements to Bid.
2.1. To bid at the RMS Sealed-Bid 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 a 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”).
2.1.1. If planning to pay via cryptocurrency the Bidder must, prior to the opening of the RMS Sealed-Bid Auction, complete all Bidder Registration Requirements and contact RMS’ Client Service department at clientservices@rmsothebys.com for further information on potentially utilizing BitPay to facilitate the use of cryptocurrency. In order to process cryptocurrency, there is a vendor fee of 1% that is applicable to the total Purchase Price (defined below). The embedded BitPay invoice includes the 1% added vendor fee. Please note RMS and BitPay reserves all rights to reject a payment with a cryptocurrency.
2.2. 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 RMS Sealed-Bid Auction specifically prior to being accepted to bid.
2.3. 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 RMS Sealed-Bid Auction.
2.4. By participating in the RMS Sealed-Bid 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.
2.5. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
3. RMS Sealed-Bid Auction Bidding Process.
3.1. Bidding on the Lot will open to registered Bidders on 21 March 2022 and is expected to close on 25 March 2022 (the “Close of Lot”). Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the auctioneer will review the sealed bids and the highest amount submitted will be declared the winning bid upon which, (i) the contract between the Consignor and the winning Bidder is concluded and irrevocable; (ii) ownership automatically changes hands to the winning Bidder; and (iii) the winning Bidder is now the legal owner of the Lot and is responsible for payment in full.
3.2. Once (i) you have satisfied the Bidder Registration Requirements; (ii) bidding is open; and (iii) you have logged into the online RMS Sealed-Bid Auction platform, the Bidder may input a bid in the highlighted fillable field.
3.2.1. The minimum bid outlined is a commercially reasonable starting bid as determined by RMS.
3.2.2. Once the Bidder has placed a starting bid, the next minimum bid the Bidder may place will be in accordance with the increment table below. If you type an amount that would result in an off-increment bid, your bid will be rounded down to the nearest on-increment bid:
• Current Bid – 0 – 999 | Minimum Increment – 25
• Current Bid – 1,000 - 2,499 | Minimum Increment – 50
• Current Bid – 2,500 - 4,999 | Minimum Increment – 100
• Current Bid – 5,000 - 9,999 | Minimum Increment – 250
• Current Bid – 10,000 - 24,999 | Minimum Increment – 500
• Current Bid – 25,000 - 99,999 | Minimum Increment – 1,000
• Current Bid – 100,000 - 499,999 | Minimum Increment – 5,000
• Current Bid – 500,000 - 999,999 | Minimum Increment – 10,000
• Current Bid – 1,000,000 - 2,500,000 | Minimum Increment – 20,000
• Current Bid – 2,500,000+ | Minimum Increment – 50,000
3.3. If your bid is greater than the current high bid, you will be the new high Bidder; otherwise, you will see where your current bid ranks from 1-5. If your bid is ranked 6th or lower your ranking will be shown as 5+. You may elect to raise your bid at any time prior to the Close of Lot (defined below). Any Bidder, including the high Bidder, may still increase their bid by placing another bid for a higher value
3.4. If you were the high Bidder, but a bid placed by another bidder exceeds your bid, you will be notified via the email address or mobile number you have set in your account preferences, and the Lot page will indicate you have been outbid by the change in your ranking.
3.5. For the Sealed-Bid Auction, you will only be able to see your own submitted bid - not the high/winning bid (unless you are the high Bidder). The difference between Bidder positions will not be disclosed.
3.6. The Buyer will be required to pay RMS the last accepted sealed bid upon the Close of Lot plus any applicable Expenses and Fees (defined below) (collectively, the “Purchase Price”) in accordance with clause 12 (Payment).
3.7. Once made, no Bidder may retract a bid made during the RMS Sealed-Bid Auction for any reason.
3.8. If a bid is placed within the final two minutes that causes that Bidder to be ranked in the top 3, the Sealed-Bid Auction 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 Sealed-Bid Auction. This also gives the new Bidder time to consider raising their bid further if they are not the high Bidder.
3.9. There is no “cooling-off period”, cancellation, or rescission of bids.
3.10. RMS reserves the right to reject any bid. 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. RMS is not responsible for any errors or omissions in connection with the calling, displaying, accepting, or rejecting of bids.
3.11. The winning Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot.
4. 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 offered at the particular RMS Sealed-Bid Auction (“Bidder Due Diligence”).
5. 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 offered in the RMS Sealed-Bid Auction. Lot descriptions, statements in 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 CONSIGNOR 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.
6. Services. RMS may provide services including clerks, support staff, advertising, and promotion. In connection with the RMS Sealed-Bid Auction, RMS will have absolute discretion with regard to the Lot as to (a) consulting any expert either before or after the RMS Sealed-Bid Auction, (b) researching provenance, (c) grouping and providing descriptions as may be appropriate, (d) marketing and promotion of the Lot, and (e) any other services required to conduct the auction of the Lot.
7. Currency: The Lot will be sold at the RMS Sealed-Bid Auction in USD ($). If the Bidder is planning to pay via cryptocurrency, please refer to clause 2.1.1. of these Conditions of Business.
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. These Conditions of Business are an important legal document. The Bidder acknowledges that the Bidder has had the opportunity to consult an attorney before accepting these Conditions of Business 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 these Conditions of Business or, any contemporaneous written, oral, or implied understandings of the parties relating to the subject matter of these Conditions of Business, 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 these Conditions of Business and, no one at RMS has acted as the Bidder’s attorney or tax advisor. As a condition of bidding at the RMS Sealed-Bid 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 RMS Sealed-Bid Auction. A further condition of bidding at the RMS Sealed-Bid 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 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. Buyers’ Premium: No Buyers’ Premium (0%) will be collected for the Sealed-Bid Auction.
11. Expenses and Fees: Expenses and fees as outlined in these Conditions of Business include, but are not limited, to transportation, duty, storage, 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 last accepted sealed bid upon the Close of Lot in accordance with clause 12 (Payment).
12. Payment.
12.1. Payment is due in full on or before 5:00 p.m. EST / EDT of the next business day (“Payment Deadline”), and payment is to be made to RMS.
12.2. All payments must be in the form of wire transfer unless other arrangements have been approved in advance.
12.3. 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.
13. Non-Payment.
13.1. In the event that the Buyer does not pay any portion of the Purchase Price 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 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.
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 from the Bidder’s cash deposit and/or charge the Purchase Price 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, in addition to other remedies available by law, RMS reserves the right to impose, from the Payment Deadline until the full Purchase Price 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 has been made by the Buyer on the:
13.1.3.1. Purchase Price;
13.1.3.2. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
13.1.3.3. Other damages reasonably related to the Bidder’s non-payment.
13.1.3.4. 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 AND 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 13.1.
14. Reserve.
14.1. The Lot is subject to a reserve (i.e., the minimum amount that the Consignor will accept as the winning bid) set by the Consignor which will remain confidential.
14.2. Your bid must meet or exceed the reserve to win the Lot. If any bid meets or exceeds reserve, that will be noted. In the event you are the highest final Bidder, but your bid has not met the reserve price, the Lot will not sell.
14.3. If RMS contributes to the last accepted sealed bid upon the Close of Lot, the reserve for the Lot becomes the last accepted sealed bid plus RMS’ contribution for purposes of commissions.
15. Cancellation/Rescission of RMS Sealed-Bid Auction.
15.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the RMS Sealed-Bid Auction and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
15.1.1. Force Majeure events including but not limited to:
15.1.1.1. Any natural disaster that, despite reasonable efforts, restricts RMS from holding the RMS Sealed-Bid Auction; and
15.1.1.2. Any terrorist event, pandemic (including resulting governmental restrictions), war, as well as any “guideline” or “recommendation” by government (local, state/province, or federal/national) and/or accredited health organizations (including the World Health Organization) that, despite reasonable efforts, restricts RMS from holding the RMS Sealed-Bid Auction in its contemplated form.
15.1.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the RMS Sealed-Bid Auction that necessitate or make prudent a cancellation.
16. Cancellation/Rescission of Lot.
16.1. 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 if RMS believes the following events have occurred or have a reasonable chance of occurring:
16.1.1. RMS opines that the Lot has been intentionally or materially misrepresented by the Consignor;
16.1.2. RMS opines that physical damage to the Lot, which cannot be sufficiently repaired prior to the RMS Sealed-Bid Auction, occurred after these Conditions of Business were formed;
16.1.3. RMS is served with a lawsuit or threatened with a dispute from a third party in relation to the Lot;
16.1.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot;
16.1.5. 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;
16.1.6. 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;
16.1.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot at the RMS Sealed-Bid Auction that necessitate a cancellation; or
16.1.8. 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, including 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. RMS Sealed-Bid Auction is “As Available” and “As Is.”
17.1. Although RMS endeavors to keep the RMS Sealed-Bid Auction safe, secure, and functioning, RMS cannot guarantee the continuous operation of or access to the RMS Sealed-Bid Auction or, a Bidder’s ability to connect and navigate the RMS Sealed-Bid Auction. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RMS’ control.
17.2. Bidders agree that they are making use of the RMS Sealed-Bid Auction at their own risk and that the RMS Sealed-Bid Auction is 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. Title Transfer. 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.
19. Removal of Purchased Lot.
19.1. The Lot is currently on bond in Germany and will be delivered to the Buyer from a UK or Swiss bonded warehouse – please contact RMS’ Client Service department at clientservices@rmsothebys.com for an up-to-date timeline and further information on collection following successful purchase. Please note that, transport will need to be arranged and as such, please expect some delay in your ability to take possession of the Lot.
19.2. If the Lot is not removed from the storage facility within one calendar year of the auction and, other arrangements have not been made, RMS has the right to (i) auction the Lot, (ii) retain its standard Buyer’s Premium and Expenses and Fees, and (iii) return any remaining funds, if any, to the Buyer within 30 business days of the sale.
20. Legal Action. These Conditions of Business shall be interpreted in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules, 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 in Zurich, Switzerland, before one arbitrator and all proceedings shall be conducted in English. 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 released to these Conditions of Business or any claim or dispute between the parties regarding the Lot or the RMS Sealed-Bid Auction shall be RMS’ profit that would have been due to RMS had the Lot met its reserve.
21. Packing and Shipping. RMS is not responsible for the acts or omissions in our packing or shipping of the purchased Lot or of other carriers or packers of the purchased Lot, whether or not recommended by RMS. Packing and handling of the purchased Lot is at the entire risk of the Buyer.
22. Data Use. The Bidder agrees 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 RMS Sealed-Bid 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 the Lot, the RMS Sealed-Bid Auction for the Lot 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 RMS Sealed-Bid Auction for the Lot.
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 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 the Lot, 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. 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 and UK consumer protection laws, the Buyer has the automatic statutory right for 14 calendar days after the Buyer comes into possession of the Lot to rescind the sale of the Lot. Nothing in this clause 27 shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
27.1. 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”).
27.2. RMS reserves the right to make the reasonable determination as to whether a Consignor meets the definition of Business, provided that such determination is not inconsistent with applicable law.
27.3. Buyers who exercise this right are responsible for any and all expenses associated with the Lot including, but not limited to, transportation, duty, storage, insurance, and taxes.
27.4. If the Buyer exercises this right, they are advised to insure the Lot until the Consignor re-takes possession of the Lot.
28. Translated Conditions of Business: If there is a contradiction due to translation in our Conditions of Business, please note that the English version of RMS’ Conditions of Business will supersede.
