CONSIGNOR(S)’ CONDITIONS OF BUSINESS
1. Introduction.
1.1 Please ensure that you read and understand these Conditions of Business prior to consigning a motor car(s) or any other lot(s) at this or any other RM Auctions, Inc. d.b.a. RM Sotheby’s (“RMS”) sale.
1.2 RMS’ contractual relationship with the Consignor(s)’ are governed by:
1.2.1 These Consignor(s)’ Conditions of Business;
1.2.2 The Consignment Agreement Package; for the avoidance of doubt, this is the fillable package containing the Consignor(s)’ personal information and information regarding the motor car(s) or any other lot(s);
1.2.3 The Conditions of Business displayed in the auction salesroom;
1.2.4 The Conditions of Business displayed on RMS’ website; and
1.2.5 In each case as amended by any salesroom notice or auctioneer’s announcement at the auction.
(clauses 1.2 to 1.2.5 together “Contractual Obligations”)
1.3 As auctioneer, RMS acts as agent for the Consignor(s) and a sale contract is made directly between the Consignor(s) and Buyer(s).
1.3.1 Occasionally, RMS may own a motor car(s) or any other lot(s) (and in such circumstances, acts in a principal capacity as the Seller(s)) and/or may have a legal, beneficial or financial interest in a motor car(s) or any other lot(s) as a secured creditor or otherwise.
2. RMS Receiving Motor Car(s) or Any Other Lot(s) in Trust. The consigned motor car(s) or any other lot(s) are delivered to RMS in trust under the exact terms set forth in this agreement. RMS agrees to receive the motor car(s) or any other lot(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(s).
3. Services. RMS agrees to act as an agent for the Consignor(s) and provide auction services including, but not limited to, a sale facility, clerks, support staff, event advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the motor car(s) and any other lot(s) or any RMS auction as to (a) consulting any expert either before or after the sale, (b) researching the provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
4. Commissions. In the event that the motor car(s) or any other lot(s) are sold, the Consignor(s) agrees to pay the Sellers’ Commission plus any applicable VAT or sales tax on the last accepted bid to RMS, as indicated in the Commissions Section of the consignment package. Further, the Consignor(s) acknowledges that RMS will collect a Buyers’ Premium from the Buyer(s) of the motor car(s) or any other lot(s) in question based on the last accepted bid on the motor car(s) or any other lot(s). Please note that the Buyers’ Premium may be subject to change at the discretion of RMS if the standard Buyers’ Premium for the auction changes. To be clear, the Buyers’ Premium on the motor car(s) or any other lot(s) will not be different from the Buyers’ Premium for other motor car lot(s) or any other lot(s) in the auction.
5. Exclusivity.
5.1 The Consignor(s) grants to RMS the exclusive right and authority to advertise and sell the motor car(s) or any other lot(s) for a period beginning with the date of this agreement and ending sixty (60) business days following the auction.
5.1.1 If the motor car(s) or any other lot(s) are sold prior to the auction and RMS has not agreed in writing to this sale, the motor car(s) or any other lot(s) will then be considered “withdrawn” from the auction by the Consignor(s), and the Consignor(s) agrees to abide by clause 18 Withdrawn Motor Car(s) or Any Other Lot(s) of these Conditions.
5.1.2 If the motor car(s) or any other lot(s) do not sell at auction, the Consignor(s) grants RMS the authority to list the motor car(s) or any other lot(s) for sale on RMS’ private sales website and advertise in other mediums at RMS’ discretion the motor car(s) or any other lot(s) for sale up-to sixty (60) days after the auction.
5.1.2.1 RMS does not have the authority to unilaterally sell the Consignor(s)’ motor car(s) or any other lot(s) after the auction and must submit what RMS believes to be commercially reasonable offers for sale to the Consignor(s).
5.1.2.2 If the Consignor(s) agrees to the sale of the motor car(s) or any other lot(s), the Consignor(s) will be required to pay RMS a percentage of the sale equivalent to the Buyers’ Premium (as charged in the auction), unless RMS and the Consignor(s) mutually agree to a different private sales commission.
6. Title, Registration Document(s), and/or Appropriate Document(s) Evidencing Chain of Ownership.
6.1 It is an absolute requirement of the Consignor(s) that they provide any and all title(s), registration document(s), or appropriate document(s) evidencing ownership and/or government registration(s) (such as Purchase Agreement(s) and Bill(s) of Sale) (“Title(s)”) to the motor car(s) or any other lot(s) to RMS prior to the auction of the motor car(s) or any other lot(s).
6.1.1 Consignor(s) should coordinate with Natalie Keogh of RMS’ Administration department either via email at nkeogh@rmsothebys.com or via telephone at +44 (0) 20 7851 7070.
6.2 The Consignor(s) warrants that the Consignor(s) is the sole and only owner of the motor car(s) and that the Consignor(s) has full right and authority to sell the motor car(s).
6.3 The Consignor(s) agrees to provide RMS with a good, clear, and transferable Title(s) to the motor car(s) in advance of the auction.
6.3.1 If for whatever reason RMS is forced to correct any Title(s) defect(s), the Consignor(s) agrees to pay for any and all reasonable expenses.
6.4 In order to facilitate and transfer the Title(s) for the motor car(s), the Consignor(s) agrees to sign a Power of Attorney attached in this Consignment Agreement package.
7. Payment.
7.1 As an accommodation to the Consignor(s), RMS agrees to act as an intermediary between the Consignor(s) and the Buyer(s) by accepting the purchase price from the Buyer(s), transferring the motor car(s) or any other lot(s) to the Buyer(s), and delivering the amounts due to the Consignor(s) under this agreement. If the motor car(s) or any other lot(s) are sold by RMS during the term of this agreement, the money due to the Consignor(s) shall be disbursed within twenty (20) business days after the sale provided the purchase price, applicable commissions, and fees have been received by RMS, in accordance with the terms of this agreement.
7.2 As used in this agreement, a “sale” occurs between the Consignor(s) and Buyer(s) when the hammer or equivalent device or mechanism drops on the last accepted bid or when the auctioneer awards the motor car(s) or any other lot(s) to the highest Bidder(s).
7.3 The Consignor(s) authorizes RMS to release the motor car(s) or any other lot(s) to the successful Buyer(s) upon RMS receiving full payment from the Buyer(s) or financing terms are agreed to with RMS.
7.4 The Consignor(s) agrees to rely solely upon the Buyer(s) for payment.
7.5 Before payment of any money due to the Consignor(s) is to be made, the Consignor(s) agrees to provide RMS with the documents necessary to transfer the ownership of the motor car(s) or any other lot(s) to the Buyer(s).
7.6 If RMS has reason to believe or is notified that the Consignor(s)’ breach or alleged breach of the Contractual Obligations or Consignor(s)’ action could potentially cause RMS liability (“dispute”), RMS, at its sole discretion, may withhold payment to the Consignor(s) until the dispute has been resolved; further, RMS may deduct any sums that are due to it from the sum held.
8. Non-Payment by Buyer(s). In the event of non-payment by the Buyer(s), RMS will endeavor to use reasonable efforts to enforce payment from the Buyer(s); however, RMS shall not be liable to the Consignor(s) for payment. If the Buyer(s) does not pay RMS, then at RMS’ sole discretion, RMS may cancel the sale and return the motor car(s) or any other lot(s) to the Consignor(s), enforce payment by the Buyer(s), or take other actions permitted by law. Notwithstanding the preceding sentences, if RMS has paid any portion of the purchase price to the Consignor(s), but the purchase price has not been collected from the Buyer(s) of the motor car(s) or any other lot(s), the Consignor(s) hereby agrees, simultaneously with such payment, to assign to RMS any and all rights that the Consignor(s) may have against such Buyer(s) to the extent of such payment, whether at law, in equity, or under the Contractual Obligations. The Consignor(s) 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(s) authorizes RMS, at RMS’ sole discretion, to impose on any Buyer(s), and retain for RMS’ account, a late charge if payment is not made in accordance with the Contractual Obligations.
9. Motor Car(s) or Any Other Lot(s) Description(s).
9.1 The Consignor(s) agrees to accept sole responsibility and liability for any representations made by RMS that accurately repeat the information supplied by the Consignor(s) as to the character, features, condition, correctness, authenticity, or history of the motor car(s) or any other lot(s) and to indemnify, defend, and hold RMS harmless from any claims that may be made with respect to any such representations.
9.2 The Consignor(s) is required to review and approve all catalogue description(s) within two (2) business days of receiving the catalogue description(s) from RMS’ Research department.
10. Motor Car(s) or Any Other Lot(s) Operation.
10.1 The Consignor(s) warrants that the motor car(s) or any other lot(s) are in a safe, operable condition to be driven or moved by RMS’ employees or representatives. The Consignor(s) acknowledges that should RMS, at RMS’ sole discretion, determine that the motor car(s) or any other lot(s) are not safe to operate or move, the motor car(s) or any other lot(s) will not be allowed across the block under their own power.
10.2 The Consignor(s) authorizes RMS to perform minor work on the motor car(s) or any other lot(s) to facilitate the motor car(s) or any other lot(s) to start and drive across the auction block or be presentable for sale, the Consignor(s) will hold RMS harmless and indemnify RMS from any damage or liability caused by the minor work performed by RMS’ staff on the motor car(s) or any other lot(s).
11. Drivers. The Consignor(s) acknowledges and grants permission for RMS and its employees and agents to drive or move the motor car(s) or any other lot(s) from time to time before, during, or after the sale. The Consignor(s) acknowledges that it is the Consignor(s)’ responsibility to maintain sufficient insurance coverage to permit such driving or moving, and the Consignor(s) specifically agrees to indemnify, defend, and hold RMS harmless, as provided in this agreement, from any liability that may result from such driving or movement of the motor car(s) or any other lot(s).
12. No-Sale of Motor Car(s) or Any Other Lot(s).
12.1 At the termination of this agreement due to a no-sale, the Consignor(s) is required to remove their non-sold motor car(s), including motorcycle(s), boat(s), and trailer(s), from the auction site within one (1) day (“Removal Deadline”).
12.1.1 Contingent upon clause 12.1 being satisfied, the motor car(s) Title(s) (as long as the Consignor(s) do not owe RMS any money) will be returned to the Consignor(s) within sixty (60) business days.
12.2 If the motor car(s), including motorcycle(s), boat(s), and trailer(s), are not removed by the Removal Deadline, RMS will remove the motor car(s), including motorcycle(s), boat(s), and trailer(s), and the Consignor(s) is required to pay a €550,00 (EUR) removal fee plus VAT per motor car(s) and a daily storage fee of €40,00 (EUR) plus VAT per motor car(s) which will commence on Saturday, 10 February, 2018 until full payment and instructions for transportation have been received.
12.3 For the removal of any non-motor car lot(s), including but not limited to memorabilia, jewellery, and clothing, from the auction site, a direct shipping company will contact the Consignor(s) after the sale; please note that a reasonable memorabilia removal and storage fee will apply.
12.4 If the Consignor(s) has not removed their motor car(s) or any other lot(s) from the storage facility within six (6) months of the sale date, RMS has the right to enter the motor car(s) or any other lot(s) into an auction at no reserve or sell via private treaty for fair market value.
12.4.1 Once sold, RMS will retain all reasonable expenses, auction fees if sold via auction, and if sold via private treaty, a twenty percent (20%) commission; if there are any remaining funds, these will be returned to the Consignor(s) within thirty (30) business days of the sale.
12.5 RMS shall have the right to exercise a charge or lien on the non-sold motor car(s) or any other lot(s), or any other property belonging to the Consignor(s) in the possession of RMS if the Consignor(s) owe RMS money, and to apply any money due or to become due to the Consignor(s), to the outstanding money the Consignor(s) owes to RMS.
13. Cancellation of Sale.
13.1 RMS has the sole discretion to cancel an auction or the sale of the motor car(s) or any other lot(s) and will not be liable to the Consignor(s) for any losses or damages resulting from the cancellation if RMS believes the following events have occurred or have a reasonable probability of occurring:
13.1.1 Force Majeure events including, but not limited to:
13.1.1.1 Natural disaster;
13.1.1.2 Structural damage to auction venue prior to the auction; and
13.1.1.3 Terrorist event;
13.1.2 Government/Court action, order, injunction, regulation, or law that necessitates a cancellation;
13.1.3 RMS opines that the motor car(s) or any other lot(s) have been misrepresented by the Consignor(s);
13.1.4 RMS opines that physical damage to the motor car(s) or any other lot(s), which cannot be sufficiently repaired prior to the auction, occurred after this agreement was signed;
13.1.5 RMS is served with a lawsuit from a third party;
13.1.6 RMS faces reputational damages for selling the motor car(s) or any other lot(s); or
13.1.7 RMS faces liability or losses by selling the motor car(s) or any other lot(s).
13.2 If there is a claim, accusation, notice, or similar communication made by the Buyer(s) in regard to their purchase of a motor car(s) or any other 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 reimburse the payment to the Buyer(s) if RMS deems the Buyer(s)’ claims to be valid.
14. Estimates and Catalogue Descriptions. Any pre-sale estimates are intended as guides for prospective Bidder(s). RMS makes no representation or warranty of the anticipated selling price of the motor car(s) or any other lot(s), and no estimate anywhere by RMS of the selling price of the motor car(s) or any other lot(s) may be relied upon as a prediction of the actual selling price. Estimates included in catalogues, online, pre-mailers, any advertisements, or elsewhere are preliminary only, and they are subject to revision by RMS from time to time at its sole discretion. The Consignor(s) acknowledges that RMS will not be liable for any errors or omissions in the catalogue or other descriptions of the motor car(s) or any other lot(s), and these descriptions make no guarantees, representations, or warranties whatsoever to the Consignor(s) with respect to the motor car(s) or any other lot(s), their attribution, legal title, condition, value, or other characteristics.
15. Odometer Statement. The Consignor(s) agrees to provide a duly executed odometer statement on or before the first day of the auction and to accept sole responsibility for the accuracy or inaccuracy of such statement.
16. Reserve(s). The reserve price(s) noted in the fillable section of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor(s). The reserve(s) may be lowered at any time by the Consignor(s), either verbally or in writing, but they may not be raised. The reserve(s) do not include commissions to RMS. RMS has the right to sell the motor car(s) or any other lot(s) at a price below the agreed verbal or written reserve(s) provided that the Consignor(s) receives the same net proceeds as the Consignor(s) would have received had the reserve(s) been met. If no reserve(s), indicate clearly by writing “NONE” in the space provided in the fillable section of the Auction Consignment Agreement.
17. Insurance. The Consignor(s) will be responsible for maintaining adequate property insurance on the motor car(s) or any other lot(s) at all times, and this insurance must be at least equal to the aggregate low pre-sale auction estimate for the motor car(s) or any other lot(s), which in each case shall include insurance for damages to the motor car(s) or any other lot(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 motor car(s) or any other lot(s) from RMS. RMS does not maintain insurance with respect to the Consignor(s)’ motor car(s) or any other lot(s), but RMS does carry Garage Keeper’s Insurance to cover RMS employees’ acts of gross negligence while the motor car(s) or any other lot(s) are in the care, custody, and control of RMS. With the exception of RMS’ employees’ acts of gross negligence, the Consignor(s) agrees that RMS and its respective affiliates and agents will not be responsible for, and the Consignor(s) releases RMS and its respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the motor car(s) or any other lot(s).
18. Withdrawn Lot(s) or Any Other Lot(s).
18.1 The Consignor(s) acknowledges that RMS has incurred and will incur significant costs preparing, advertising, marketing, and promoting the motor car(s) or any other lot(s) for the auction.
18.2 If the Consignor(s) withdraws one or more of the motor car(s) or any other lot(s) from the auction after the signing of this agreement, the Consignor(s) will pay RMS the Buyers’ Premium and Sellers’ Commission that would have been due under this agreement, had the motor car(s) or any other lot(s) met (i) their reserve(s), (ii) if offered without reserve(s) then the motor car(s) or any other lot(s) published low estimate(s), or (iii) if no published low estimates(s), then the motor car(s) or any other lot(s) fair market value as determined by RMS, by five PM (5:00 p.m.) of the next business day following the auction.
19. Legal Action.
19.1 These Conditions (and any dispute or claim relating to them or their subject matter, their enforceability, or their termination (including non-contractual claims)) are to be governed by and construed in accordance with French law.
19.2 The courts of France shall have jurisdiction to settle any claim, dispute, or issue whether arising out of or in connection with these Conditions or otherwise (including non-contractual claims). In the case of a dispute which is the subject of a claim by RMS, such jurisdiction shall be non-exclusive. In any other case, such jurisdiction shall be exclusive, and the Buyer(s) and Consignor(s) agree that it will not institute proceedings in the courts of the country other than France.
20. Marketing Fee. The marketing fee is non-refundable and is not credited toward the sales commission.
21. Bidding Restrictions. The Consignor(s) hereby agrees not to bid on the motor car(s) or any other lot(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(s) shall neither instruct nor permit any other person to bid on behalf of the Consignor(s) for the motor car(s) or any other lot(s). If, however, in violation of the foregoing, the Consignor(s) (or his or her agent) bids on the motor car(s) or any other lot(s) and becomes the successful Bidder(s), the expenses, entry fee, repair expenses, Buyers’ Premium, and Sellers’ Commission on the hammer price shall be payable by the Consignor(s); the motor car(s) or any other lot(s) may be sold without reserve(s).
22. Anti-Freeze is the Responsibility of the Consignor(s).
22.1 As the Consignor(s)’ motor car(s) or any other lot(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 motor car(s) or any other lot(s) for shipping in freezing temperatures. Winterizing one or more of the motor car(s) or any other lot(s) means that the Consignor(s) has completely filled and properly mixed, at a minimum, negative twenty degrees Fahrenheit rated (-20°F) anti-freeze into their motor car(s) or any other lot(s) radiator(s).
22.2 If any damage occurs because the Consignor(s) did not properly winterize their motor car(s) or any other lot(s), it will be the Consignor(s)’ responsibility to cover the damages, and RMS may recap these damages from the Consignor(s)’ settlement. If it is found that the Consignor(s) did not properly winterize their motor car(s) or any other lot(s), the associated costs with checking, filling, and disposing the anti-freeze will be recapped from the Consignor(s)’ settlement; if the motor car(s) or any other lot(s) are not sold, the Consignor(s) must pay RMS before the Consignor(s) can re-take possession of their motor car(s) or any other lot(s). If already settled, the Consignor(s) must pay RMS 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(s) acknowledges that the Consignor(s) 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, RMS has not provided legal or tax advice or tax planning services to the Consignor(s) or for the Consignor(s)’ benefit in connection with the transactions contemplated by this agreement, and no one at RMS has acted as the Consignor(s)’ attorney or tax advisor.
25. Money Laundering. The Consignor(s) 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 Money Laundering Laws and Regulations in force in the jurisdiction in which the auction is held.
26. Photography, Videography, and Illustrations. All photographs, videography and illustrations commissioned by RMS for the motor car(s) or any other lot(s) are the absolute property of RMS and RMS shall have the absolute right to use the photographs, videography and illustrations as RMS deems fit.
27. Guarantee. Please note that RMS has placed a guarantee with Catlin Insurance Company UK Limited, via Aquila Underwriters LLP trading as Vectura Underwriting, with registered offices at 1st floor, 80 Leadenhall Street, London, EC3A 3DH, contact Stephen Fletcher, to secure availability of sale proceeds as required by law.
28. Vehicle Registration Number(s) (if applicable).
28.1 If the Consignor(s) wishes to sell the motor car(s) but retain the right to the registration number(s) of the motor car(s), it is the Consignor(s)’ responsibility to notify RMS in writing.
28.2 It shall be the Consignor(s)’ responsibility to take all necessary steps to ensure that the current motor car(s) registration number(s) is reserved and that a new number is allocated prior to the motor car(s) being sold at the auction, and if the Consignor(s) does not do so RMS shall not be responsible for any loss or damage whatsoever arising out of the sale of the motor car(s) or its registration number(s).
28.3 RMS may, at its discretion (without any assumption of responsibility or duty toward the Consignor(s) or the Buyer(s)), take such steps to facilitate the reservation or transfer of any particular registration number(s) as it thinks fit in order to assist the Consignor(s) or Buyer(s) but strictly on condition that no claim attaches to RMS for taking any such steps whether arising out of RMS’ negligence or any other cause whatsoever.
29. Motor Car(s) or Any Other Lot(s) Under Temporary Import.
29.1 A temporary import bond is used in all European sales. If a motor car(s) or any other lot(s) is brought into Europe from a country outside of Europe, the motor car(s) or any other lot(s) must be placed on either RMS’ bond in the United Kingdom or one of RMS’ nominated custom agencies for Paris, Monaco or Italy. Fees and charges vary from sale to sale, and for some countries this is also determined by the value of the motor car(s) or any other lot(s).
29.2 Motor car(s) or any other lot(s) subject to temporary importation restrictions cannot be discharged from RMS’ custody without the completion of customs procedures and until full payment has been received. Customs charges will be levied appropriately depending on each individual scenario and will be payable directly to the relevant authorities, which RMS will provide the details of as and when necessary.
29.3 If the motor car(s) or any other lot(s) does not sell at auction, the motor car(s) or any other lot(s) must be re-exported to the country of origin, transferred to another temporary bond or alternatively the Consignor(s) must pay any and all relevant taxes if the Consignor(s) would like the motor car(s) or any other lot(s) to remain in Europe. The motor car(s) or any other lot(s) cannot be released from RMS’ care until an option is executed.
29.3.1 Should the Consignor(s) decide for the motor car(s) or any other lot(s) to remain in Europe when purchased, the Buyer(s) is responsible to pay any and all import fees for the motor car(s) or any other lot(s).
30. Translated Consignor(s)’ Conditions of Business. If there is a contradiction due to translation in our Consignor(s)’ Conditions of Business, please note that the English version of RMS’ Consignor(s)’ Conditions of Business will supersede.
