CONSIGNORS’ CONDITIONS OF BUSINESS
1. Introduction:
1.1. Please ensure that you read and understand these Conditions of Business (“Conditions”) prior to consigning a Motor Car or Any Other Lot at this or any other RM Auctions, Inc. (“RM”) sale.
1.2. RM’s contractual relationship with the Consignors is governed by:
1.2.1. These Conditions;
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 or Any Other Lot;
1.2.3. The Conditions of Business displayed in the auction salesroom;
1.2.4. The Conditions of Business displayed on RM’s 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, RM acts as agent for the Consignor, and a sales contract is made directly between the Consignor and the Buyer.
1.3.1. Occasionally, RM may own a Motor Car or Any Other Lot (and in such circumstances, acts in a principal capacity as the Seller) and/or may have a legal, beneficial, or financial interest in a Motor Car or Any Other Lot as a secured creditor or otherwise.
2. RM Receiving Motor Car or Any Other Lot in Trust: Any consigned Motor Car or Any Other Lot is delivered to RM in trust under the exact terms set forth in these Conditions. RM agrees to receive the Motor Car or Any Other Lot in trust and agrees not to permit its use for any other purposes, other than those contained in these Conditions, without the express written consent of the Consignor.
3. Services: RM agrees to act as an agent for the Consignor and to provide auction services, including but not limited to, a sales facility, clerks, support staff, event advertising, and promotion. In connection with the auction, RM will have absolute discretion with regard to the motor car and any other lot or any RM 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: If the Motor Car or Any Other Lot is sold, the Consignor agrees to pay the Sellers’ Commission on the Hammer Price (the last accepted bid is the Hammer Price (“Hammer Price”)) of the Motor Car or Any Other Lot to RM, as indicated in the Commissions section of the consignment package. Further, the Consignor acknowledges that RM will collect a Buyers’ Premium from the Buyer of the Motor Car or Any Other Lot in question, based on the Hammer Price on the Motor Car or Any Other Lot. Please note that the Buyers’ Premium may be subject to change at the discretion of RM if the standard Buyers’ Premium for the auction changes. To be clear, the Buyers’ Premium on the Motor Car or Any Other Lot will not be different from the Buyers’ Premium for other motor car lots or any other lots in the auction.
5. Proceeds to Consignor:
5.1. As an accommodation to the Consignor, RM agrees to act as an intermediary between the Consignor and the Buyer by accepting the purchase price from the Buyer, transferring the Motor Car or Any Other Lot to the Buyer, and delivering the amounts due to the Consignor under these Conditions. If the Motor Car or Any Other Lot is sold by RM during the term of these Conditions, the money due to the Consignor shall be disbursed within 20 business days after the sale, provided that the purchase price, applicable commissions, and fees have been received by RM, in accordance with the terms of these Conditions.
5.2. As used in these Conditions, a “sale” occurs between the Consignor and the Buyer when the hammer or equivalent device or mechanism drops on the Hammer Price or when the auctioneer awards the Motor Car or Any Other Lot to the highest Bidder.
5.3. The Consignor authorizes RM to release the Motor Car or Any Other Lot to the successful Buyer upon RM receiving full payment of cleared funds from the Buyer or financing terms as agreed to with RM.
5.4. The Consignor agrees to rely solely upon the Buyer for payment.
5.5. 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 (defined below) of the Motor Car or Any Other Lot to the Buyer.
5.6. If RM has reason to believe or is notified that the (i) Consignor’s breach of the Contractual Obligations, (ii) alleged breach of the Contractual Obligations, (iii) Consignor’s actions could potentially cause RM liability, and/or (iv) Buyer claims material misrepresentation within the Twenty Day Window (defined below) as outlined in clause 10 (“dispute”), RM, at its sole discretion, may withhold payment to the Consignor until the dispute has been resolved; further, RM may deduct any sums that are due to it from the sum held.
6. Exclusivity: The Consignor grants to RM the exclusive right and authority to advertise and sell the Motor Car or Any Other Lot for a period beginning with the date of these Conditions and ending 90 business days following the auction.
6.1. If the Motor Car or Any Other Lot is sold prior to the auction and RM has not agreed in writing to this sale, the Motor Car or Any Other Lot will then be considered “withdrawn” from the auction by the Consignor, and the Consignor agrees to abide by clause 20, Withdrawn Motor Car or Any Other Lot, of these Conditions.
6.2. If the Motor Car or Any Other Lot does not sell at auction, the Consignor grants RM the authority for up to 90 business days after the auction to (a) list the Motor Car or Any Other Lot for sale on RM’s Private Sales website, (b) advertise, in other media at RM’s discretion, the Motor Car or Any Other Lot for sale, and (c) if there was a reserve price agreed to between the parties, unilaterally sell the Motor Car or Any Other Lot for an amount equal to or greater than the reserve price.
7. Title, Registration Documents, and/or Appropriate Documents Evidencing Chain of Ownership to Motor Car or Any Other Lot:
7.1. It is the absolute requirement of the Consignor that they provide any and all titles, registration documents, or appropriate documents evidencing Ownership and/or government registrations (such as Purchase Agreements and Bills of Sale) (“Titles”) to the Motor Car or Any Other Lot to RM prior to the auction of the Motor Car or Any Other Lot.
7.2. The Consignor warrants that the Consignor is the sole owner of the Motor Car or Any Other Lot, and that the Consignor has full right and authority to sell the Motor Car or Any Other Lot (“Ownership”).
7.3. The Consignor agrees to provide RM with a good, clear, and transferable Title to the Motor Car or Any Other Lot in advance of the auction.
7.3.1. If for whatever reason RM is forced to correct any Title defect, the Consignor agrees to first pay RM a minimum fee of US$500 and, if the Title defect costs more than US$500 to correct, the Consignor agrees to pay for any and all additional reasonable expenses related to correcting such defect (“Title Fees”). The Title Fees will be deducted from the Consignor’s proceeds of sale.
7.3.1.1. In cases where pre-existing Titles do not exist and insurance bonds are necessary, the Consignor will be charged Title Fees on a case-by-case basis.
7.4. In order to facilitate and transfer the Title for the Motor Car or Any Other Lot, the Consignor agrees to sign the Power of Attorney attached to the Consignment Agreement package.
7.5. The Consignor will indemnify and hold RM harmless from any claims, demands, losses, expenses, damages, costs, actions, and liabilities, including without limitation to court costs and attorney fees, of whatever kind or nature that may or may not occur, whether known or unknown, on the account of or arising out of all matters related to the Ownership and Titles.
8. Non-Payment by Buyer: In the event of non-payment by the Buyer, RM will endeavor to use reasonable efforts to enforce payment from the Buyer; however, RM shall not be liable to the Consignor for payment. If the Buyer does not pay RM, then at RM’s sole discretion, RM may cancel the sale and return the Motor Car or Any Other Lot to the Consignor, enforce payment by the Buyer, or take other actions permitted by law. Notwithstanding the preceding 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 of the Motor Car or Any Other Lot, the Consignor hereby agrees, simultaneously with such payment, to assign to RM any and all rights that the Consignor may have against such Buyers to the extent of such payment, whether at law, in equity, or under the Contractual Obligations. The Consignor agrees to execute any documents reasonably necessary to evidence this assignment, including with respect to the Consignor’s representations, warranties and indemnities as set forth in these Conditions. The Consignor authorizes RM, at RM’s sole discretion, to impose on any Buyer, and retain for RM’s account, a late charge if payment is not made in accordance with the Contractual Obligations.
9. Motor Car or Any Other Lot Description:
9.1. 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 Motor Car or Any Other Lot, and also to indemnify, defend, and hold RM harmless from any claims that may be made with respect to any such representations.
9.2. The Consignor is required to review and approve any and all catalogue descriptions within 2 business days of receiving the catalogue description from RM’s Research department; if RM does not receive a response to its request to review within 2 business days, RM will consider this an approval of the catalogue description and a representation that RM can rely upon.
10. Twenty Day Window for Rescission of Sale due to Material Misrepresentation Claims:
10.1. RM will review concerns regarding material misrepresentations raised by the Buyer for 20 business days from the date of the auction.
10.2. If it is found that the alleged material misrepresentation (that would not have been reasonably found through the Bidder’s due diligence) materially decreases the value or functionality of the Motor Car or Any Other Lot, RM will work with the Buyer to reach a solution.
10.2.1. The Consignor agrees to indemnify, defend, and hold RM harmless from any claims that may be made with respect to any Buyer alleged damages or liability, including but not limited to, travel expenses, repair expenses, and inspection expenses in any way related to actions taken in accordance with clause 10.
(clause 10 to 10.2.1 together “Twenty Day Window”)
11. Motor Car or Any Other Lot Operation:
11.1. The Consignor warrants that the Motor Car or Any Other Lot is in a safe, operable condition to be driven or moved by RM’s employees or representatives. The Consignor acknowledges that, should RM, at RM’s sole discretion, determine that the Motor Car or Any Other Lot is not safe to operate or move, the Motor Car or Any Other Lot will not be allowed across the block.
11.2. The Consignor authorizes RM to perform minor work on the Motor Car or Any Other Lot to facilitate the Motor Car or Any Other Lot starting and driving across the auction block or being presentable for sale. The Consignor will hold RM harmless and indemnify RM from any damage or liability caused by the minor work performed by RM’s staff on the Motor Car or Any Other Lot.
12. Drivers: The Consignor acknowledges and grants permission for RM and its employees and agents to drive or move the Motor Car or Any Other Lot 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 or moving, and the Consignor specifically agrees to indemnify, defend, and hold RM harmless, as provided in these Conditions, from any liability that may result from such driving or movement of the Motor Car or Any Other Lot.
13. No-Sale of Motor Car or Any Other Lot:
13.1. If there is a no-sale, any and all fees owing, including but not limited to Title Fees, must be paid to RM before the Motor Car or Any Other Lot is released to the Consignor.
13.2. If there is a no-sale, the Consignor is required to remove their non-sold Motor Car, including motorcycles, boats, and trailers, from the auction site by 3:00 p.m. of the next business day in the jurisdiction where the auction was held (“Removal Deadline”).
13.3. Contingent upon clause 13.2 being satisfied, the Motor Car’s Title (as long as the Consignor does not owe RM any money) will be returned to the Consignor within 60 business days.
13.4. If any Motor Cars, including motorcycles, boats, and trailers, are not removed by the Removal Deadline (or are not granted authority to be removed due to clause 13.1), RM will remove the motor cars, including motorcycles, boats, and trailers, and the Consignor is required to pay RM a daily storage fee of up to US$30.
13.5. For the removal of a non-Motor Car lot, including but not limited to memorabilia, jewelry, and clothing, from the auction site, a direct shipping company will contact the Consignor after the sale; please note that a reasonable memorabilia removal and storage fee will apply.
13.6. If the Consignor has not removed their Motor Car or Any Other Lot from the storage facility within 6 months of the sale date, RM has the right to enter the Motor Car or Any Other Lot into an auction at no reserve or to sell it via private treaty for fair market value.
13.6.1. Once sold, RM will retain all reasonable expenses, auction fees if sold via auction, and if sold via private treaty, a 20% commission; if there are any remaining funds, these will be returned to the Consignor within 30 business days of the sale.
13.7. RM shall have the right to exercise a charge or lien on the non-sold Motor Car or Any Other Lot or any other property belonging to the Consignor in the possession of RM if the Consignor owes RM money, and to apply any money due or to become due to the Consignor to the outstanding money the Consignor owes to RM.
14. Cancellation/Rescission of Auction: RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the auction and will not be liable to the Consignor for any losses or damages resulting from the cancellation/rescission if RM believes the following events have occurred or have a reasonable probability of occurring:
14.1. Force majeure events, including but not limited to:
14.1.1. Any natural disaster that, despite reasonable efforts, restricts RM from holding the auction;
14.1.2. Structural damage to the auction venue prior to the auction that, despite reasonable efforts, restricts RM from holding the auction; and
14.1.3. Any terrorist event, disease, war, as well as any “guideline” or “recommendation” by government (local, state/province, federal/national) that, despite reasonable efforts, restricts RM from holding the auction.
14.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold an auction that necessitate a cancellation.
15. Cancellation/Rescission of Motor Car or Any Other Lot: RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the sale of a Motor Car or Any Other Lot and will not be liable to the Consignor for any losses or damages resulting from the cancellation/rescission if RM believes the following events have occurred or have a reasonable probability of occurring:
15.1. RM opines that the Motor Car or Any Other Lot has been intentionally and materially misrepresented by the Consignor;
15.2. RM opines that physical damage to the Motor Car or Any Other Lot, which cannot be sufficiently repaired prior to the auction, occurred after these Conditions was signed;
15.3. RM is served with a lawsuit from a third party in relation to the Motor Car or Any Other Lot;
15.4. RM faces significant reputational damages that would cause monetary damages for selling the Motor Car or Any Other Lot;
15.5. Material issues regarding the Title, registration, or transfer of Ownership that cannot be reasonably cured;
15.6. Material issues regarding the provenance, merchantability, or authenticity of the Motor Car or Any Other Lot that cannot be reasonably cured;
15.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Motor Car or Any Other Lot at auction that necessitate a cancellation; or
15.8. If there are legitimate claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a Motor Car or Any Other Lot not being authentic, being misrepresented, having an encumbered title or registration, having an undisclosed material issue, or having a similar claim, RM 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 the sale of the Motor Car or Any Other Lot and reimburse the payment to the Buyer if RM deems the Buyer’s claims to be valid.
16. Estimates and Catalogue Descriptions: Any pre-sale estimates are intended as guides for prospective Bidders. RM makes no representation or warranty of the anticipated selling price of a Motor Car or Any Other Lot, and no estimate anywhere by RM of the selling price of a Motor Car or Any Other Lot may be relied upon as a prediction of the actual selling price. Estimates included in catalogues, online, in pre-mailers, in any advertisements, 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 a Motor Car or Any Other Lot, and these descriptions make no guarantees, representations, or warranties whatsoever to the Consignor with respect to a Motor Car or Any Other Lot, its attribution, legal title, condition, value, or other characteristics.
17. Odometer Statement: The Consignor will provide a duly executed odometer statement on or before the first day of the auction, and further accepts sole responsibility for the accuracy or inaccuracy of such statement.
18. Reserve:
18.1. A reserve price noted in the fillable section of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor. Reserve prices may be lowered at any time by the Consignor, either verbally or in writing, but they may not be raised. The reserve does not include commissions to RM. RM has the right to sell a Motor Car or Any Other Lot at a price below the agreed verbal or written reserve, provided that the Consignor receives the same net proceeds as the Consignor would have received had the reserve been met. If no reserve, indicate clearly by writing “NONE” in the space provided in the fillable section of the Auction Consignment Agreement.
18.2. If RM contributes to the Hammer Price to meet a reserve, the reserve for the respective Motor Car or Any Other Lot becomes the Hammer Price plus RM’s contribution for purposes of commissions.
19. Insurance: The Consignor will be responsible for maintaining adequate property insurance on the Motor Car or Any Other Lot at all times, and this insurance must be at least equal to the aggregate low pre-sale auction estimate for the Motor Car or Any Other Lot, which in each case shall include insurance for damages to the Motor Car or Any Other Lot and shall not be cancellable by the insurance company until after Ownership and Title have passed to the Buyer and the Buyer has taken possession of the Motor Car or Any Other Lot from RM. The Consignor agrees that RM and its respective affiliates and agents will not be responsible for, and the Consignor releases RM and its respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the Motor Car or Any Other Lot.
20. Withdrawn Motor Car or Any Other Lot:
20.1. The Consignor acknowledges that RM has incurred and will incur significant costs preparing, advertising, marketing, and promoting the Motor Car or Any Other Lot for the auction.
20.2. If the Consignor withdraws one or more of the Motor Cars or Any Other Lots from the auction after the signing of these Conditions, the Consignor will pay RM the Buyers’ Premium and Sellers’ Commission that would have been due under these Conditions had the Motor Car or Any Other Lot (a) met their reserve; (b) if offered without reserve, then the Motor Car or Any Other Lot’s published low estimate; or (c) if no published low estimate, then the Motor Car or Any Other Lot’s fair market value as determined by RM, by 5:00 p.m. of the next business day following the auction.
21. Legal Action: If either party brings action against the other arising from or relating to the provisions of these Conditions, the prevailing party, as determined by the court, shall be entitled to recover its reasonable attorney fees and costs. The law of the jurisdiction in which the auction is held shall govern the provisions of these Conditions.
22. Marketing Fee: The marketing fee is non-refundable and is not credited toward the sales commission.
23. Bidding Restrictions: The Consignor hereby agrees not to bid on his/her/their Motor Car or Any Other Lot. Although the auctioneer shall be entitled to bid on the Consignor’s behalf up to the amount of the reserve (if applicable), the Consignor shall neither instruct nor permit any other person to bid on behalf of the Consignor for his/her/their Motor Car or Any Other Lot. If, however, in violation of the foregoing, the Consignor (or his or her agent) bids on his/her/their Motor Car or Any Other Lot and becomes the successful Bidder, the expenses, marketing fee, repair expenses, Buyers’ Premium, and Sellers’ Commission on the Hammer Price shall be payable by the Consignor. If the Consignor does not pay in accordance with this clause, his/her/their Motor Car or Any Other Lot may be sold without reserve.
24. Motor Car or Any Other Lot’s Batteries: If a Motor Car or Any Other Lot arrives at the auction with a dead battery, or shows signs of a draining battery, an automatic US$200 (or the local currency equivalent) replacement fee will be charged to the Consignor.
25. Antifreeze Is the Responsibility of the Consignor:
25.1. As the Consignor’s Motor Car or Any Other Lot 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 6 months, they have winterized their Motor Car or Any Other Lot for shipping in freezing temperatures. Winterizing one or more of the Motor Cars or Any Other Lots means that the Consignor has completely filled and properly mixed, at a minimum, –20°F-rated antifreeze into their Motor Car or Any Other Lot’s radiator.
25.2. If any damage occurs because the Consignor did not properly winterize their Motor Car or Any Other Lot, it will be the Consignor’s responsibility to cover the damages, and RM may recoup these damages from the Consignor’s settlement. If it is found that the Consignor did not properly winterize their Motor Car or Any Other Lot, the associated costs with checking, filling, and disposing of the antifreeze will be recouped from the Consignor’s settlement; if the Motor Car or Any Other Lot is not sold, the Consignor must pay RM before the Consignor can retake possession of their Motor Car or Any Other Lot. If already settled, the Consignor must pay RM directly.
26. 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 shall not be modified, except in writing. Whenever used in these Conditions, 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.
27. No Legal or Tax Advice: These Conditions are an important legal document. The Consignor acknowledges that the Consignor has had the opportunity to consult an attorney before signing these Conditions and has signed these Conditions after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in these Conditions, or any contemporaneous written, oral, or implied understandings of the Parties relating to the subject matter of these Conditions, RM has not provided legal or tax advice or tax planning services to the Consignor or for the Consignor’s benefit in connection with the transactions contemplated by these Conditions, and no one at RM has acted as the Consignor’s attorney or tax advisor.
28. Data Use: The Consignor agrees to allow RM to use their personal information in accordance with RM’s privacy policy. RM 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 RM auctions 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 RM website homepage under the Privacy and Terms tab. If you wish to ask any questions regarding the use of your personal information, request a full accounting of what personal information is on file with RM, unsubscribe to any services, or purge your personal information from RM’s systems, please email privacy@rmsothebys.com.
29. Anti-Money Laundering: The Consignor agrees to provide all information and assistance reasonably requested by RM to comply with RM’s internal anti-money laundering process and to comply with any and all anti-money laundering laws and regulations in force in the jurisdiction in which the auction is held.
30. Photography, Videography, and Illustrations: All photographs, videography, and illustrations commissioned by RM for the Motor Car or Any Other Lot are the absolute property of RM, and RM shall have the absolute right to use the photographs, videography, and illustrations as RM deems fit.
