THE ORIGINAL AUCTION HOUSE OF THE AMELIA ISLAND CONCOURS
RM Sotheby’s auctions have been a significant cornerstone of Amelia Island’s automotive weekend for years, and 2023 will mark our 24th anniversary and the final year hosting a sale at this location. We are pleased to announce our most diverse auction in Amelia Island history, offering everything from modern-day supercars to veteran racers from the 1900s. We look forward to welcoming clients at our new location on Lynndale Road for this not to be missed event on Saturday, 4 March 2023.
CLIENT SERVICE CONTACT
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 a motor car or any other lot (the “Lot(s)”) at this or any other RM Auctions, Inc.; RM Auctions Arizona, Inc.; RM Auctions Limited; RM Licenses LLC; RM Auctions Italia S.R.L.; RM Auctions Suisse Sàrl; RM Auctions Deutschland GmbH; or any affiliated, executors, beneficiaries, successors, assigns, or designated companies d.b.a. RM Sotheby’s auction (“RMS”). Even though the RMS Conditions of Business are generally standardized, there are unique jurisdictional requirements and terms that may not apply to every auction and, each bidder in the auction (the “Bidder”) is responsible to understand, review, and agree to these Conditions of Business as they apply. As a Bidder, you are agreeing to be bound by these Conditions of Business for the RMS auction. Please note that these Conditions of Business are subject to change from time to time and will be posted on RMS’ website and, in RMS’ catalogue as the case may be. It is each Bidder’s responsibility to apprise themselves of the Conditions of Business for each auction in which the Bidder wishes to participate. Bidders are encouraged to contact RMS’ Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Conditions of Business.
1.2. RMS’ contractual relationship with Bidders is governed by:
1.2.1. These Conditions of Business;
1.2.2. The Conditions of Business displayed on RMS’ website;
1.2.3. The Conditions of Business announced and displayed in the auction salesroom;
1.2.4. The Key to Lot Symbols and/or Legend referenced in the auction catalogue and/or Lot description on www.rmsothebys.com (the “Website”) as the case may be; and
1.2.5. In each case as amended by any notice, auctioneer’s announcement, or website update.
(Clauses 1.2 to 1.2.5. collectively, the “Contractual Obligations”)
1.3. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot(s) (the “Consignor”).
1.3.1. Occasionally, RMS may own a Lot(s) (and, in such circumstances, acts in a principal capacity as the seller) and/or may have a legal, beneficial, or financial interest in a Lot(s) as a secured creditor or otherwise, in which case RMS will disclose such interest with the appropriate Symbols and/or Legend referenced in the auction catalogue and/or auction Lot(s) description on the Website.
2. Bidder Due Diligence Responsibilities. The Bidder is responsible for any and all due diligence including, but not limited to, inspections and verification of the originality, character, features, condition, correctness, authenticity, history or description, statements made in reference to, or any and all other matters regarding any Lot(s) offered in an RMS auction (“Bidder Due Diligence”).
3. All Sales Are “As Is” and “Where Is.” No warranties or representations of any type whatsoever are made by RMS or any Consignor to the Bidder regarding any Lot(s) offered in an RMS auction. Lot(s) descriptions, statements printed in catalogues or 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. All Lot(s) are sold as is, where is, with no representations or warranties, expressed or implied. THE CONSIGNORS AND RMS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, AS TO CONDITION, ORIGINALITY, OR AUTHENTICITY; ORIGIN OR PROVENANCE; PREVIOUS USE OR OWNERSHIP; MANUFACTURING OR RESTORATION PROCESSES; YEAR OR AGE; SERIAL NUMBER, MAKE, OR MODEL; OPTIONS AND TOOLS; ENGINE HOURS; AND MILEAGE OF ANY LOT(S) OR COMPONENT OF ANY LOT(S), AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
4. Services. RMS may provide services including a sale facility, clerks, support staff, advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the Lot(s) as to (a) consulting any expert either before or after the auction, (b) researching provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the Lot(s), and (e) any other services required to conduct the auction of the Lot(s).
5. Bidder Registration Fee.
5.1. In order to register to bid onsite at auction, Bidders must pay a registration fee as outlined below:
5.1.1. Up to a $400.00 USD registration fee for RMS auctions held in either Scottsdale, Arizona; Amelia Island, Florida; or Monterey, California.
5.1.2. Up to a $200.00 USD registration fee for RMS auctions held in either Fort Lauderdale, Florida; Auburn, Indiana; or Hershey, Pennsylvania.
5.1.3. Up to a €200,00 registration fee for RMS auctions held in either Monte Carlo, Monaco; St. Moritz, Switzerland; or Milan, Italy.
5.1.4. A €150,00 registration fee for RMS auctions held in Paris, France.
5.1.5. A £150.00 registration fee for RMS auctions held in London, United Kingdom.
(Clause 5.1 to 5.1.5. collectively, the “Bidder Registration Fees”)
5.2. Please note that:
5.2.1. There may be other auctions not listed in clause 5.1 and, the Bidder is required to pay the Bidder Registration Fee as listed for that particular auction; and
5.2.2. The Bidder Registration Fees are subject to change by any notice, auctioneer’s announcement, catalogue update, or website update and, it is each Bidder’s responsibility to apprise themselves of any changes to the Bidder Registration Fees.
6. Bidding at Auction.
6.1. To bid at the 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”).
6.1.1. If planning to pay via cryptocurrency the Bidder must, prior to the opening of the 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. 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.
6.2. 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 auction specifically prior to being accepted to bid.
6.3. 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 auction.
6.4. Once you have satisfied the Bidder Registration Requirements, you will be able to place bids against Lot(s) at the auction.
6.5. Once made, no Bidder may retract a bid made during the auction for any reason.
6.6. There is no “cooling-off period”, cancellation, or rescission of bids.
6.7. If at the end of the auction, you are awarded the final bid on a Lot, ownership automatically changes hands at the drop of the auctioneer’s hammer (or equivalent device or mechanism) or the close of the Lot (“Close of Lot”). At the Close of the Lot, you are now the legal owner (the “Buyer”) of the applicable Lot(s) and are responsible for payment in full.
6.8. The Buyer is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot(s).
6.9. RMS reserves the right to reject any bid. The highest Bidder acknowledged by the auctioneer will be the Buyer. The auctioneer has absolute and sole discretion in the case of error or dispute with respect to bidding and, the auctioneer and RMS have absolute and sole discretion, whether during or after the sale, to determine the successful Bidder, to re-open the bidding, to cancel the sale, or to re-offer and re-sell the Lot(s) in dispute. If any dispute arises after the sale, RMS’ sale record is conclusive. At RMS’ discretion, RMS will execute absentee bids and accept telephone bids and online bids via rmsothebys.com as a convenience to clients who are not present at auctions; RMS is not responsible for any errors or omissions in connection with the calling, displaying, accepting, or rejecting of bids.
6.10. By participating in the 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.
6.11. If a Bidder would like an RMS representative to bid on their behalf, they need to complete the corresponding RMS Car Specialist as Agent Form attached as Attachment #1 to these Conditions of Business.
6.12. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
7. Currency.
7.1. The Lot(s) will be sold at the auction only in one of the following currencies, USD ($), EUR (€), British Pounds (£), or Swiss francs (CHF). The currency listed with the Lot(s) is the currency in which the Bidder must provide payment.
7.1.1. If the Bidder is planning to pay via cryptocurrency, please refer to clause 6.1.1. of these Conditions of Business.
7.2. RMS may display a currency conversion function at the auction; however, these are for informational purposes only and are not to be relied on by anyone. The Buyer will be required to make payment to RMS in accordance with clause 13 (Payment) of these Conditions of Business in the designated currency for the particular auction that the Buyer purchases the Lot(s) at.
8. Purchase Price.
8.1. The purchase price shall consist of the following:
8.1.1. the Hammer Price (defined below) of the Lot(s);
8.1.2. the applicable Buyer’s Premium (defined below); and
8.1.3. any applicable Expenses and Fees (defined below).
(Clauses 8 to 8.1.3. together are “Purchase Price”)
9. Buyer’s Premium.
9.1. In addition to the Hammer Price, the Buyer is required to pay RMS a percentage of the Hammer Price as outlined below which RMS retains as the Buyer’s Premium for the purchase of each Lot(s) (“Buyer’s Premium”).
9.2. RMS auctions held in either Scottsdale, Arizona; Amelia Island, Florida; or Monterey, California will have the following Buyer’s Premium:
9.2.1. In the event of a final Hammer Price of $250,000.00 USD and below on all motor car Lot(s), RMS will receive a Buyer’s Premium of 12%.
9.2.2. In the event of a final Hammer Price above $250,000.00 USD on all motor car Lot(s), RMS will receive a Buyer’s Premium of 12% on the first $250,000.00 USD and will receive a Buyer’s Premium of 10% on the Hammer Price above $250,000.00 USD.
9.2.3. Buyers of all non-motor car Lot(s) including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines are required to pay RMS a Buyer’s Premium of 20% on the Hammer Price of those particular Lot(s).
9.3. RMS auctions held in either Fort Lauderdale, Florida; Auburn, Indiana; or Hershey, Pennsylvania will have the following Buyer’s Premium:
9.3.1. RMS will receive a Buyer’s Premium of 10% on all motor car Lot(s).
9.3.2. Buyers of all non-motor car Lot(s), including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines are required to pay RMS a Buyer’s Premium of 15% on the Hammer Price of those particular Lot(s).
9.4. RMS auctions held in either Paris, France; Monte Carlo, Monaco; or Milan, Italy will have the following Buyer’s Premium:
9.4.1. In the event of a final Hammer Price of €200.000,00 and below on all motor car Lot(s), RMS will receive a Buyer’s Premium of 15% (plus VAT on the Buyer’s Premium).
9.4.2. In the event of a final Hammer Price above €200.000,00 on all motor car Lot(s), RMS will receive a Buyer’s Premium of 15% (plus VAT on the Buyer’s Premium) on the first €200.000,00 and will receive a Buyer’s Premium of 12.5% (plus VAT on the Buyer’s Premium) on the Hammer Price above €200.000,00.
9.4.3. Buyers of all non-motor car Lot(s), including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines are required to pay RMS a Buyer’s Premium of 20% (plus VAT on the Buyer’s Premium) on the Hammer Price of those particular Lot(s).
9.5. RMS auctions held in St. Moritz, Switzerland will have the following Buyer’s Premium:
9.5.1. In the event of a final Hammer Price of CHF 200.000,00 and below on all motor car Lot(s), RMS will receive a Buyer’s Premium of 15% (plus VAT on the Buyer’s Premium).
9.5.2. In the event of a final Hammer Price above CHF 200.000,00 on all motor car Lot(s), RMS will receive a Buyer’s Premium of 15% (plus VAT on the Buyer’s Premium) on the first CHF 200.000,00 and will receive a Buyer’s Premium of 12.5% (plus VAT on the Buyer’s Premium) on the Hammer Price above CHF 200.000,00.
9.5.3. Buyers of all non-motor car Lot(s), including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines are required to pay RMS a Buyer’s Premium of 20% (plus VAT on the Buyer’s Premium) on the Hammer Price of those particular Lot(s).
9.6. RMS auctions held in London, United Kingdom will have the following Buyer’s Premium:
9.6.1. In the event of a final Hammer Price of £200,000.00 and below on all motor car Lot(s), RMS will receive a Buyer’s Premium of 15% (plus VAT on the Buyer’s Premium).
9.6.2. In the event of a final Hammer Price above £200,000.00 on all motor car Lot(s), RMS will receive a Buyer’s Premium of 15% (plus VAT on the Buyer’s Premium) on the first £200,000.00 and will receive a Buyer’s Premium of 12.5% (plus VAT on the Buyer’s Premium) on the Hammer Price above £200,000.00.
9.6.3. Buyers of all non-motor car Lot(s) including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines are required to pay RMS a Buyer’s Premium of 20% (plus VAT on the Buyer’s Premium) on the Hammer Price of those particular Lot(s).
9.7. Please note that, there may be other auctions not listed in this clause 9 and, the Bidder is required to pay the Buyer’s Premium as listed for that particular auction.
10. Taxes. The Buyer is responsible to pay all applicable taxes, duties, tariffs, and any and all other government mandated costs associated with purchasing Lot(s) (“taxes”). Further, as mandated in multiple applicable jurisdictions, RMS is required to remit taxes; as applicable, RMS will outline the additional taxes on your invoice.
11. No Legal or Tax Advice.
11.1. 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 auction, it is the Bidder’s responsibility to satisfy themselves and comply with all applicable tax, duty, or any and all other payments associated with the purchase of a Lot(s) at the auction. A further condition of bidding at the 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.
11.2. In order to assist Bidders with this process, RMS may provide information about the tax status of each Lot(s) as well as any ownership or registration papers that will be supplied with the respective Lot(s) (“Tax and Ownership Information”); however, this information is being provided merely to assist Bidders in their determination of their own tax and regulatory responsibilities.
12. 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 Hammer Price and applicable Buyer’s Premium in accordance with clause 13 (Payment).
13. Payment.
13.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the bill of sale between the Consignor and the Bidder is concluded and irrevocable.
13.2. The value of the last accepted bid upon the Close of Lot is the Hammer Price (“Hammer Price”).
13.3. 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.
13.4. RMS auctions held in the United States will be conducted in United States Dollars ($) and all payments are required to be made in United States Dollars. Further, all payments must be in the form of cash or certified funds unless other arrangements have been approved in advance. Cash payments will be reported according to U.S. federal government requirements.
13.5. RMS auctions held in the United Kingdom will be conducted in British Pounds (£) and all payments are required to be made in British Pounds (£). Further, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
13.6. RMS auctions held in either Paris, France; Monte Carlo, Monaco; or Milan, Italy will be conducted in EUR (€) and all payments are required to be made in EUR (€). Further, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
13.7. RMS auctions held in St. Moritz, Switzerland will be conducted in Swiss francs (CHF) and all payments are required to be made in Swiss francs (CHF). Further, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
13.8. Please note that, there may be other auctions not listed in this clause 13 and, the Bidder is required to make payment as listed for that particular auction.
13.9. For any purchases under $5,000.00 (or the equivalent currency in which the Lot(s) is offered for sale), the Buyer acknowledges and agrees that his/her credit card against which the CC Hold (defined below) has been taken will automatically be used as the payment method for the Hammer Price of the Lot(s), applicable Buyer’s Premium, and Expenses and Fees. Special payment arrangements can be made for multiple Lot(s) purchases which, the Buyer is welcome to discuss with an RMS representative upon completion of the auction.
13.10. For final purchases exceeding $5,000.00 (or the equivalent currency in which the Lot(s) is offered for sale), all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
13.11. RMS is not obligated to release the Lot(s) to the winning Bidder until the Buyer has met all of the Contractual Obligations and paid the Purchase Price.
14. Non-Payment.
14.1. In the event of no or partial payment 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:
14.1.1. Cancel/rescind the sale of a Lot(s). If the sale is cancelled/rescinded due to non-payment, RMS will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission.
14.1.2. 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.
14.1.3. 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 has 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:
14.1.3.1. Purchase Price;
14.1.3.2. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
14.1.3.3. Other damages reasonably related to the Bidder’s non-payment.
14.1.3.4. 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.
14.2. 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(S), THE NON-PAYMENT, OR RMS’ ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 14.1.
15. Reserves.
15.1. Lot(s) not marked as “no reserve” (or similar) are subject to a reserve set by the Consignor. When a Lot(s) is sold subject to a reserve, the auctioneer may bid on the Consignor’s behalf up to and including an amount not to exceed the amount of the reserve.
15.2. If RMS contributes to the Hammer Price to meet a reserve, the reserve for the respective Lot(s) becomes the Hammer Price plus RMS’ contribution for purposes of commissions.
16. Absentee and Telephone Bidding. Absentee and telephone bidding are services provided by RMS for the Bidder’s benefit and, RMS cannot be held responsible for errors or omissions with respect to the bidding process including, failure to execute any bid. By submitting one or more bids, the Bidder has entered into a binding bill of sale to purchase each Lot(s) if the Bidder’s bid is successful. If the Bidder’s bid is successful, the Bidder is to pay the Purchase Price including, the Buyer’s Premium and sales tax, if not otherwise exempt. It is the Bidder’s responsibility to provide proof of exemption from sales tax. By participating in telephone bidding, the Bidder acknowledges that RMS has the right to record all telephone calls.
17. Cancellation/Rescission of Auction.
17.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the auction and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission including, but not limited to, if RMS believes the following events have occurred or have a reasonable chance of occurring:
17.1.1. Force Majeure events including but not limited to:
17.1.1.1. Any natural disaster which, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form;
17.1.1.2. Structural damage to the auction venue prior to the auction which, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form; and
17.1.1.3. Any terrorist event (including resulting governmental restrictions), pandemic, 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) which, despite reasonable efforts restricts RMS from holding the auction in its contemplated form.
17.1.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold an auction that necessitate or make prudent a cancellation.
18. Cancellation/Rescission of Lot(s).
18.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the sale of a Lot(s) and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
18.1.1. RMS opines that the Lot(s) has been intentionally and materially misrepresented by the Consignor;
18.1.2. RMS opines that physical damage to the Lot(s), which cannot be sufficiently repaired prior to the auction, occurred after these Conditions of Business were formed;
18.1.3. RMS is served with a lawsuit or threatened with a dispute from a third party in relation to the Lot(s);
18.1.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot(s);
18.1.5. 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;
18.1.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot(s) that cannot be reasonably cured or, RMS believes would expose it to claims or disputes from a third party;
18.1.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot(s) at the auction that necessitate a cancellation; or
18.1.8. If there are disputes, claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a Lot(s) not being authentic, being misrepresented, having an encumbered title or registration, having undisclosed material issue, or having a similar claim, RMS has the right to retain the Buyer’s funds on account and be the arbitrator as to the merit of the Buyer’s claims including, to cancel or rescind the sale of the Lot(s) and reimburse the payment to the Buyer if RMS in its sole discretion deems the Buyer’s claims to be valid.
19. Online Services Are “As Available” and “As Is.”
19.1. Bidders may be able to bid via websites, telephone services, applications, RMS’ online platform, and tools (collectively “Services”).
19.2. Although RMS endeavors to keep the Services safe, secure, and functioning properly, RMS cannot guarantee the continuous operation of or access to the Services or, a Bidder’s ability to connect and navigate the Services. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RMS’ control.
19.3. Bidders agree that they are making use of the Services at their own risk and, that the Services are being provided to Bidders on an “AS AVAILABLE” and “AS IS” basis. Accordingly, to the extent permitted by applicable law, RMS excludes all expressed or implied warranties, terms, and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
20. Credit Card Hold and Pre-authorization.
20.1. Please note that in order to register to bid at an RMS sale, RMS requires a hold and pre-authorization to be placed on the Bidder’s credit card which, is dependent on the particular auction as listed in clause 20.2 (“CC Hold”), from the date of registration until the close of the auction. If the Bidder fails to pay for a Lot(s) purchased on or before 5:00 p.m. of the next business day following the auction, the Bidder acknowledges that their credit card will be charged the applicable CC Hold for the missed payment; please note that, the Bidder is still bound to pay their remaining balance. The CC Hold will not be charged to their credit card if the Bidder makes full payment on or before 5:00 p.m. of the next business day following the auction. If the Bidder is not the Buyer of the Lot(s), the CC Hold will be removed from the credit card in accordance with the Bidder’s specific credit card companies’ procedures. Please note that RMS may waive this requirement at its sole discretion.
20.2. A CC Hold as outlined below will be placed on the Bidder’s credit card:
20.2.1. A $5,000.00 USD CC Hold for RMS auctions held either in Scottsdale, Arizona; Amelia Island, Florida; or Monterey, California;
20.2.2. A $2,000.00 USD CC Hold for RMS auctions held in either Fort Lauderdale, Florida; Auburn, Indiana; or Hershey, Pennsylvania;
20.2.3. Up to a €5.000,00 CC Hold for RMS auctions held in either Paris, France; Monte Carlo, Monaco; Milan, Italy; or St. Moritz, Switzerland; and
20.2.4. A £5,000.00 CC Hold for RMS auctions held in London, United Kingdom.
20.3. Please note that, there may be other auctions not listed in this clause 20 and, the Bidder is required to pay the CC Hold as listed for that particular auction.
21. Title Transfer.
21.1. If the Buyer of a Lot(s) resides in an American state and, the purchased Lot(s) is titled in an American state, in an effort to ensure all titles are free and clear of liens or encumbrances, RMS manages the process of title reassignment on behalf of the Buyer. Buyers will receive titles in the mail as soon as possible following the auction with a target of a maximum of 20 business days following the auction; however, please note that for reasons beyond RMS’ control, including any delays in lien releases by lien holder(s) and/or delays by Department of Motor Vehicles (or equivalent) in certain states, there are instances where the Buyer may not receive the title within 20 business days and, in those circumstances, RMS will work to provide the titles to the Buyer as soon as possible. A $75.00 USD administration fee or its equivalent in local currency of the auction location ($85.00 USD in the State of California) will be assessed per motor car Lot(s) purchased, but this fee will not apply to nostalgia Lot(s).
21.1.1. If a Lot(s) is rendered “Title in Transit”, it is unlikely that the Buyers will receive the title in the mail within 20 business days following the auction; however, RMS will work to provide the titles to the Buyer as soon as possible.
21.1.2. The Buyer acknowledges that delays in transferring titles including, due to delays at government Motor Vehicle departments, happen from time-to-time and, the Buyer will hold RMS harmless from any allegations of damages arising out of government delays.
21.2. If the Buyer of a Lot(s) resides outside the United States, 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.
22. Removal of Purchased Lot(s).
22.1. For RMS auctions held in either the United States; Paris, France; Monte Carlo, Monaco; or Milan, Italy, all purchased Lot(s) must be removed by the Buyer from either the auction site or the secure storage facility by the next business day by 5:00 p.m. in the applicable time zone where the auction is held (“RMS Removal Deadline”).
22.1.1. Specifically, for RMS auctions held in the United States:
22.1.1.1. If a Lot(s) is not removed by the RMS Removal Deadline, the Buyer will be charged a removal fee of up to $750.00 USD and a daily storage fee of up to $50.00 USD until the Lot(s) is removed.
22.1.1.1.1. Please note that, for RMS auctions held in Auburn, Indiana no removal fee will apply.
22.1.2. Specifically, for RMS auctions held in either Paris, France; Monte Carlo, Monaco; or Milan, Italy:
22.1.2.1. The Lot(s) will be moved by RMS from the auction site immediately following the auction and, taken to a secure storage facility and the Buyer will be required to pay RMS a moving fee of up to €1.000,00 plus VAT per Lot(s).
22.1.2.2. If a Lot(s) is not removed by the RMS Removal Deadline, the Buyer will be charged a daily storage fee of up to €100,00 plus VAT per Lot(s) until the Lot(s) is removed.
22.1.2.3. Specifically, if a boat Lot(s) is not removed by the RMS Removal Deadline, RMS will remove the boat Lot(s) and the Buyer is required to pay RMS a removal fee plus VAT per boat Lot(s) and a daily storage fee plus VAT per boat Lot(s). The removal fee and daily storage fee for a boat Lot(s) will be determined based on the size of the boat Lot(s) and therefore, cannot be confirmed until the boat Lot(s) is consigned.
22.2. For RMS auctions held in London, United Kingdom:
22.2.1. All purchased Lot(s) will be moved by RMS from the auction site immediately following the auction and, taken to a secure storage facility and the Buyer will be required to pay RMS a moving fee of up to £600.00 plus VAT per Lot(s).
22.2.2. If the Lot(s) is not removed by noon on the next business day in the jurisdiction where the auction was held, the Buyer will be charged a daily storage fee of up to £40.00 plus VAT per Lot(s) until the Lot(s) is removed.
22.3. RMS auctions held in St. Moritz, Switzerland:
22.3.1. All purchased Lot(s) will be moved by RMS from the auction site immediately following the auction and, taken to a secure storage facility and the Buyer will be required to pay a removing and handling fee of CHF 750,00 plus VAT per Lot(s).
22.3.2. If the Lot(s) is not removed within 1 week of the conclusion of the auction, the Buyer will be charged a daily storage fee of up to CHF 30,00 plus VAT per Lot(s) until the Lot(s) is removed.
22.4. Please note that:
22.4.1. There may be other auctions not listed in this clause 22 and, the Bidder is required to (i) abide by the removal deadline requirements and (ii) pay the removal and storage fee as listed for that particular auction;
22.4.2. The Buyer is required to insure their Lot(s) while the Lot(s) is being stored on their behalf; and
22.4.3. If the Lot(s) is not removed from the storage facility within one calendar year of the RMS Removal Deadline and, other arrangements have not been made, RMS has the right to (i) auction the Lot(s), (ii) retain its standard Buyer’s Premium and Expenses and Fees, and (iii) return the remaining funds, if any, to the Buyer within 30 business days of the sale.
23. Legal Action.
23.1. The governing law and jurisdiction for any legal action will be as follows:
23.2. For Auctions Held in the United States: These Conditions of Business shall be interpreted in accordance with the laws of the State of Michigan, U.S., without regard to choice of law principles. Any dispute, claim, or controversy arising out of or relating to these Conditions of Business or the breach, termination, enforcement, interpretation, or validity thereof including, the determination of the scope or applicability of these Conditions of Business, shall exclusively be subject to arbitration and shall first be subject to mediation as a condition precedent to arbitration. If mediation is unsuccessful, the parties shall proceed to arbitration near Detroit, Michigan before one arbitrator and, all proceedings shall be conducted in English. The mediation and arbitration shall be administered by the American Arbitration Association pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to this auction, the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, the Bidder agrees that the maximum liability of RMS arising out of or related to these Conditions of Business or any claim or dispute between the parties regarding the Lot(s) or the auction shall be the Buyer’s Premium that would have been due under clause 9 of these Conditions of Business had the Lot(s) (a) met their reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
23.3. For Auctions Held Outside of the United States: These Conditions of Business shall be interpreted in accordance with the laws of England, 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 to arbitrate, 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 London, England before one arbitrator and, all proceedings shall be conducted in English. The mediation and arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to the auction or the Lot(s), the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, the Bidder agrees that the maximum liability of RMS arising out of or related to these Conditions of Business or any claim or dispute between the parties regarding the Lot(s) or the auction shall be the Buyer’s Premium that would have been due under clause 9 of these Conditions of Business had the Lot(s) (a) met their reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
23.4. For Auctions Held in Paris France: These Conditions of Business shall be interpreted in accordance with the laws of France, 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 to arbitrate, 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 Paris, France before one arbitrator and, all proceedings shall be conducted in English. The mediation and arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to the auction or the Lot(s), the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, the Bidder agrees that the maximum liability of RMS arising out of or related to these Conditions of Business or any claim or dispute between the parties regarding the Lot(s) or the auction shall be the Buyer’s Premium that would have been due under clause 9 of these Conditions of Business had the Lot(s) (a) met their reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
23.5. For Auctions Held in St. Moritz, Switzerland: These Conditions of Business shall be interpreted in accordance with Swiss laws, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. 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 in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre in force on the date on which the Notice of Arbitration is submitted in accordance with those Rules, and shall first be subject to mediation in accordance with the Swiss Rules of Mediation of the Swiss Arbitration Centre in force on the date when the request for mediation was submitted in accordance with these Rules 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. 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(s), 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, Bidder agrees that the maximum liability of RMS arising out of or related to these Conditions of Business or any claim or dispute between the parties regarding the Lot(s) or auction shall be the Buyer’s Premium that would have been due under clause 9 of these Conditions of Business had the Lot(s) (a) met their reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
24. Packing and Shipping. RMS is not responsible for the acts or omissions in our packing or shipping of purchased Lot(s) or of other carriers or packers of purchased Lot(s), whether or not recommended by RMS. Packing and handling of purchased Lot(s) are at the entire risk of the Buyer.
25. Data Use. The Bidders agree to allow RMS to use their personal information in accordance with RMS’ Privacy Policy. RMS uses your personal information to provide services specifically tailored toward your requirements and to treat you in a personal way; to fulfill your agreements regarding the consignment and purchase of items at RMS auctions, the 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.
26. Anti-Money Laundering. The Bidder agrees to provide all information and assistance reasonably requested by RMS to comply with RMS’ internal anti-money laundering process and to comply with any and all applicable anti-money laundering laws and regulations.
27. 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 bill of sale 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.
28. Assignment of Rights:
28.1. The Bidder or Buyer agrees that RMS may assign, sell, and/or pledge, entirely or in parts (“Assign” or “Assigns” or “Assigned” or “Assignment”) (third party who is assigned rights is an “Assignee(s)”) without limitation any and all rights, obligations, and/or remedies and/or relief as provided by law (“Rights”) that RMS is entitled to/obligated by under these Conditions of Business to any Assignee(s) (including, but not limited to, any RMS affiliate, and for Lot(s) purposes, to any financing sources of RMS).
28.2. RMS may assign insurance to an alternative insurance provider.
28.3. Following any Assignment in accordance with the terms hereof, any reference in these Conditions of Business to any Rights that RMS is entitled to/obligated by under these Conditions of Business, shall be held by RMS on behalf of and for the benefit of itself and any Assignee(s). The Bidder or Buyer hereby agrees to promptly execute and deliver any amendment or supplement to these Conditions of Business reasonably requested by RMS in connection with any Assignment in accordance with the terms hereof.
28.4. The Bidder or Buyer may not Assign the Rights that the Bidder or Buyer is entitled to/obligated by, under these Conditions of Business to any other individual or entity without the express written permission of RMS.
29. Translations.
For Auctions Held in and Outside the United States:
29.1. 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.
29.2. If there is a discrepancy, contradiction, or question of interpretation in a description for a Lot(s), in print, online, or otherwise between the English version of the description and a version produced in a language other than English, the English version will supersede.
For Auctions Held in Paris France:
29.3. 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 French version of RMS’ Conditions of Business will supersede.
29.4. If there is a discrepancy, contradiction, or question of interpretation in a description for a Lot(s), in print, online, or otherwise between the English version of the description and a version produced in a language other than English, the French version will supersede.
30. COVID-19 Assumption of Risk and Waiver of Liability. If attending the auction in person, the Bidder agrees to the following:
30.1. The Bidder and, any guests in the Bidder’s party, acknowledge the potential risks associated with COVID-19 exposure and voluntarily assume all risks related to exposure to COVID-19.
30.2. The Bidder agrees not to hold RMS or any of their affiliates, directors, officers, employees, agents, contractors, third parties, vendors, guests, or volunteers liable for any issues associated with COVID-19 exposure.
30.3. If the Bidder has recently tested positive for COVID-19 or are experiencing any symptoms of COVID-19 including, but not limited to, fever, dry-cough, tiredness, aches and pains, difficulty breathing, shortness of breath or, have been in contact with someone with COVID-19 or suspected COVID-19, the Bidder will not be permitted to attend the auction.
30.4. By attending the auction, the Bidder agrees to submit to a temperature check and to wear a mask at all times. The Bidder will only be exempt from wearing a mask while eating or, if the Bidder has been diagnosed with a medical condition that prohibits the wearing of a mask.
30.5. If the Bidder refuses to submit to a temperature check and/or does not wear a mask as outlined, the Bidder must leave the auction premises immediately and/or the Bidder will be escorted from the auction premises by security and, no refunds will be provided.
30.6. Information provided during bidder registration may be used in accordance with governmental COVID-19 rules and regulations and in accordance with RMS’ Privacy Policy.
SPECIFICALLY FOR RMS CALIFORNIA AUCTIONS:
31. Notice to Buyers as Required by the California Department of Motor Vehicles Code Section 11729. Failure of RMS 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 RMS has not complied with the terms of this agreement, please contact an investigator of the Department of Motor Vehicles.
32. Contract Cancellation Agreement. In the event of a successful bid, if a Lot(s) has a combined Hammer Price and Buyer’s Premium equaling less than $40,000 USD, under the Car Buyer’s Bill of Rights (FFVR 35), RMS is required to offer a 2-day contract cancellation option agreement to the successful Buyer. If the Buyer exercises this contract cancellation option, RMS is obligated to return any funds paid by the Buyer and cancel the sale. If the sale is canceled, RMS is under no obligation to pay the Consignor for the Lot(s), and the Lot(s) will be deemed to have not sold.
33. Lot(s) Exhaust Warning. Operating, servicing, and maintaining a passenger vehicle or off-road vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www.P65Warnings.ca.gov/passenger-vehicle.
SPECIFICALLY FOR RMS AUCTIONS HELD OUTSIDE OF THE UNITED STATES:
34. Lot(s) Under Temporary Import.
34.1. A temporary import bond is used in all EU sales. If a Lot(s) is brought into the EU from a country outside of the EU, the Lot(s) must be placed on either RMS’ bond in the United Kingdom or one of RMS’ nominated customs 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 Lot(s).
34.2. 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.
34.3. Should the Buyer decide for the Lot(s) to remain in the EU when purchased, the Buyer is responsible to pay any and all import fees for the Lot(s).
35. 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(s) to rescind the sale of the Lot(s). Nothing in this clause 35 shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
35.1. 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”).
35.2. 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.
35.3. Buyers who exercise this right is responsible for any and all expenses associated with the Lot(s) including, but not limited to, transportation, duty, storage, insurance, and taxes.
35.4. If the Buyer exercises this right, they are advised to insure the Lot(s) until the Consignor re-takes possession of the Lot(s).
ATTACHMENT #1 TO BIDDER’S CONDITIONS OF BUSINESS
RMS CAR SPECIALIST AS AGENT FORM
The Bidder may choose to have an RM Sotheby’s (“RMS”) Car Specialist place a bid on a Lot(s) on their behalf during the auction referenced below (“Auction”). In order for a RMS Car Specialist to bid on the Bidder’s behalf, the Bidder must (i) provide the following information, (ii) select and initial beside a bidding option as outlined below, and (iii) sign their name at the bottom of this form:
Auction:
Lot Number:
Client Name:
Bidding Options: I acknowledge and agree that an RMS Car Specialist may bid on my behalf on the above referenced lot number at the Auction in accordance with the following selected option:
A. Up to ______________________________ Hammer Price (as outlined and defined in the Auction Bidder’s Conditions of Business).
**Please note that the applicable Buyer’s Premium will apply.
_____________
Bidder’s Initials
OR
B. As Instructed.
**Please note that the applicable Buyer’s Premium will apply.
**Please note that if this Option is chosen, the Bidder will be required to provide the RMS Car Specialist with their bidding instructions either via email or text message. Verbal bidding instructions will not be accepted.
_____________
Bidder’s Initials
If any dispute arises after the sale wherein an RMS Car Specialist bid on behalf of a Bidder during the Auction, the Bidder acknowledges that RMS will not be held responsible for any errors or omissions in connection with the calling/displaying/accepting of bids.
________________________________
Date
____________________________________
Signature of Bidder
CONSIGNOR’S CONDITIONS OF BUSINESS
1. Introduction:
1.1. These Consignor’s Conditions of Business (the “Conditions”) outline the contractual relationship and obligations between RMS (as defined on page 1 of the Auction Consignment Agreement) and the consignor of the Lot(s) (the “Consignor”) in relation to the auction of the Consignor’s Lot(s) in an RMS auction.
1.2. Please ensure that you read and understand these Conditions prior to consigning a Lot(s).
1.3. RMS’ contractual relationship with the Consignor is governed by:
1.3.1. These Conditions;
1.3.2. The Auction Consignment Agreement (which includes the Specific Information and Specific Conditions);
1.3.3. The Conditions of Business displayed in the auction salesroom;
1.3.4. The Conditions, notices, or addendums displayed on RMS’ website; and
1.3.5. In each case as amended by any salesroom notice or auctioneer’s announcement at the auction.
(clauses 1.3. to 1.3.5. collectively, the “Contractual Obligations”)
1.4. As auctioneer, RMS acts as an agent for the Consignor.
2. RMS Receiving Lot(s) in Trust: Any consigned Lot(s) is delivered to RMS in trust under the exact terms set forth in these Conditions. RMS agrees to receive the Lot(s) 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: RMS agrees to act as an agent for the Consignor and may provide services including a sale facility, clerks, support staff, advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the Lot(s) as to (a) consulting any expert either before or after the auction, (b) researching the provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the Lot(s), and (e) any other services required to conduct the auction of the Lot(s).
4. Commissions:
4.1. If the Lot(s) is sold, unless otherwise listed in the Specific Information or the Specific Conditions of the Auction Consignment Agreement, the Consignor agrees to pay RMS a Seller’s Commission as outlined below on the Hammer Price (the last accepted bid is the Hammer Price (“Hammer Price”)) of the Lot(s) (“Seller’s Commission”).
4.1.1. RMS will retain a Seller’s Commission of 10% on all motor car lots.
4.1.2. RMS will retain a Seller’s Commission of 20% on all non-motor car lots including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, and clothing.
4.2. Further, the Consignor acknowledges that RMS will collect a standard Buyer’s Premium from the winning bidder (the “Buyer”) of the Lot(s) in question, based on the Hammer Price of the Lot(s). Please note that the standard Buyer’s Premium may change from time to time at the discretion of RMS if the standard Buyer’s Premium for the auction changes. To be clear, the standard Buyer’s Premium will be published as part of Bidder’s Conditions of Business in advance of the auction. For purposes of clause 21 (Withdrawn Lot(s)) of these Conditions, the Buyer’s Premium shall be 15% for motor car lots and 20% for non-motor car lots on the Hammer Price if the applicable Buyer’s Premium has not yet been published in the Bidder’s Conditions of Business.
5. Marketing Fee: The marketing fee is non-refundable and is not credited towards the Seller’s Commission.
6. Expenses and Fees: Expenses and fees as outlined in these Conditions include, but are not limited to, marketing fees, transportation fees, duty, storage fees, insurance, taxes, Title Fees, and battery replacement fees (collectively, the “Expenses and Fees”). The Consignor agrees and acknowledges that the credit card provided in the Specific Information of the Auction Consignment Agreement will be charged for the applicable Expenses and Fees.
7. Proceeds to Consignor:
7.1. 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 Lot(s) to the highest bidder (“Sale”).
7.2. As an accommodation to the Consignor, RMS agrees to act as an intermediary between the Consignor and the Buyer for the Sale by accepting the purchase price from the Buyer and transferring the amounts due to the Consignor under these Conditions (“Proceeds”). If (i) the Lot(s) is sold by RMS during the term of these Conditions and (ii) there is no claim or Dispute raised by the Buyer, then RMS will make reasonable efforts to disburse the Proceeds within 21 business days after the purchase price has been received in cleared funds by RMS from the Buyer.
7.3. The Consignor authorizes RMS to release the Lot(s) to the successful Buyer upon RMS receiving full payment from the Buyer or financing terms are agreed to with RMS.
7.4. Before payment of any money due to the Consignor is to be made, the Consignor agrees to provide RMS with the documents necessary to transfer the Ownership of the Lot(s) to the Buyer. Thereafter, the Consignor agrees to provide any cooperation that RMS, in its sole discretion, deems necessary to transfer such Ownership, Title, or registration to the Buyer.
7.5. If RMS in its sole discretion has reason to believe or is notified of the (i) Consignor’s breach of the Contractual Obligations, (ii) alleged breach of the Contractual Obligations, (iii) Consignor’s actions could potentially cause RMS liability, and/or (iv) Buyer raises concerns regarding the Lot(s) originality, character, features, condition, correctness, authenticity, or history or description (collectively, the “Dispute”), RMS, at its sole discretion, may withhold payment to the Consignor until the Dispute has been resolved; further, RMS may deduct any sums that are due to it from the sum held.
8. Reserve:
8.1. The Reserve noted in the Specific Information of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor. If there is no Reserve, indicate clearly by writing “N/A”, “NONE”, or otherwise striking through in the space provided in the Specific Information of the Auction Consignment Agreement.
8.2. The Reserve may be lowered at any time by the Consignor, either verbally or in writing, but it may not be raised.
8.3. If the Lot(s) are sold at the Reserve, the Consignor’s Proceeds are the Reserve less (i) applicable Expenses and Fees and (ii) applicable Seller’s Commission as agreed to in the Auction Consignment Agreement.
8.4. RMS has the right to sell a Lot(s) at a price below the agreed verbal or written Reserve, provided that the Consignor receives the same net Proceeds under clause 8.3 as the Consignor would have received had the Reserve been met.
8.5. When a Lot(s) is sold subject to a Reserve, the auctioneer may bid on the Consignor’s behalf up to and including an amount not to exceed the amount of the Reserve.
8.6. If RMS contributes to the Hammer Price to meet a Reserve, the Reserve for the respective Lot(s) becomes the Hammer Price plus RMS’ contribution for purposes of commissions.
9. Exclusivity:
9.1. The Consignor grants to RMS the exclusive right and authority to advertise and sell the Lot(s) for a period beginning with the date of these Conditions and ending 90 business days following the auction that the Lot(s) was offered in.
9.2. If the Lot(s) is sold by the Consignor to another party during the exclusivity period of the Auction Consignment Agreement and, RMS has not agreed otherwise in writing, the Lot(s) will then be considered “withdrawn” from the auction by the Consignor, and the Consignor agrees to abide by clause 21 (Withdrawn Lot(s)) of these Conditions.
9.3. If the Lot(s) does not sell at the auction at which it was offered, the Consignor grants RMS the authority for up to 90 business days after the auction to (a) list the Lot(s) for Sale on RMS’ Private Sales website, (b) advertise, in other media at RMS’ discretion, the Lot(s) for Sale, and (c) if there was a Reserve agreed to between the parties, unilaterally sell the Lot(s) for an amount equal to or greater than the Reserve.
10. Title, Registration Documents, and/or Appropriate Documents Evidencing Chain of Ownership to Lot(s):
10.1. It is the absolute requirement of the Consignor that they provide any and all titles, registration documents, or appropriate documents evidencing the Consignor’s ownership and/or government registrations (such as Purchase Agreements and Bills of Sale) (“Titles”) to the Lot(s) to RMS prior to the auction of the Lot(s).
10.2. The Consignor warrants that the Consignor is the sole owner of the Lot(s), and that the Consignor has full right and authority to sell the Lot(s) (“Ownership”).
10.3. The Consignor agrees to provide RMS with a good, clear, and transferable Title to the Lot(s) in advance of the auction.
10.3.1. If for whatever reason RMS is forced to correct any Title defect, the Consignor agrees to first pay RMS a minimum fee of $500.00 USD and, if the Title defect costs more than $500.00 USD 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.
10.3.2. 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.
10.4. In order to facilitate and transfer the Title for the Lot(s), the Consignor agrees to sign the Power of Attorney attached to the Auction Consignment Agreement.
10.5. THE CONSIGNOR WILL INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND 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.
11. Non-Payment by Buyer:
11.1. In the event of non-payment by the Buyer, RMS will endeavor to use reasonable efforts to enforce payment from the Buyer; however, RMS shall not be liable to the Consignor for payment. If the Buyer does not pay RMS, then at RMS’ sole discretion, RMS may cancel the Sale and return the Lot(s) to the Consignor, enforce payment by the Buyer, or take other actions permitted by law. Notwithstanding the preceding sentences, if RMS has paid any portion of the purchase price to the Consignor, but the purchase price has not been collected from the Buyer of the Lot(s), the Consignor hereby agrees, simultaneously with such payment, to assign to RMS 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 written statements (in any and all mediums) made, warranties and indemnities as set forth in these Conditions. The Consignor authorizes RMS, at RMS’ sole discretion, to impose on any Buyer, and retain for RMS’ account, a late charge if payment is not made in accordance with the Contractual Obligations.
11.2. In the event of a non-payment, the Consignor will INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO THE LOT(S), THE NON-PAYMENT, OR RMS ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 11.1.
12. Lot(s) Description:
12.1. The Consignor will provide applicable information as outlined in the Lot(s) Description Requirements attached to the Auction Consignment Agreement.
12.2. The Consignor is required to review and approve any and all descriptions within 48 hours of receiving the description from RMS.
12.3. If, for whatever reason, RMS has not received an approval of the Lot(s) description from the Consignor at least 3 business days prior to the auction, RMS reserves the right to deem such description approved by the Consignor or cancel the Sale of the Lot(s) outlined in clause 17 (Cancellation/Rescission of Lot(s)).
12.4. If RMS cancels the Sale of the Lot(s) due to the obligations in clause 12.2 not being fulfilled, the Consignor will:
12.4.1. pay RMS any and all Expenses and Fees incurred by RMS assigned to the Lot(s); and
12.4.2. will be responsible to pay RMS a 10% commission on the Lot(s) (a) Reserve; or (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no Reserve and no published low estimate, then the Lot’s fair market value as determined by RMS.
12.5. The Consignor agrees to accept sole responsibility and liability for any oral or written statements (in any and all mediums) made by RMS that accurately repeat the information supplied by the Consignor as to the originality, character, features, condition, correctness, authenticity, or history of the Lot(s), and the Consignor will INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO THE LOT(S), THE LOT(S) DESCRIPTION, OR RMS’ OFFERING, AUCTION, OR SALE OF THE LOT(S).
13. Lot(s) Operation:
13.1. The Consignor warrants that the Lot(s) is in a safe, operable condition to be driven or moved by RMS’ employees or representatives. The Consignor acknowledges that, should RMS, at RMS’ sole discretion, determine that the Lot(s) is not safe to operate or move, RMS may rescind the consignment of the Lot(s) from the auction.
13.2. The Consignor authorizes RMS to perform minor work on the Lot(s) to facilitate the Lot(s) starting and driving or being presentable for Sale. THE CONSIGNOR WILL INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO ANY DAMAGE OR LIABILITY CAUSED BY THE MINOR WORK PERFORMED BY RMS’ STAFF ON THE LOT(S).
14. Drivers: The Consignor acknowledges and grants permission for RMS and its employees and agents to drive or move the Lot(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 OR MOVING, AND THE CONSIGNOR SPECIFICALLY AGREES TO INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO SUCH DRIVING OR MOVEMENT OF THE LOT(S).
15. No-Sale of Lot(s):
15.1. If there is a no-sale, any and all Expenses and Fees owing must be paid to RMS before the Lot(s) is released to the Consignor.
15.2. If there is a no-sale, the non-sold Lot(s) must be removed by the Consignor from the auction site or the secure storage facility by 5:00 p.m. of the next business day in the jurisdiction where the auction was held or such other period that RMS may designate (“Removal Deadline”).
15.3. Contingent upon clause 15.1. being satisfied, the Lot’s Title (as long as the Consignor does not owe RMS any money) will be returned to the Consignor either (i) upon expiration of the exclusivity period of the Auction Consignment Agreement or (ii) after commissions have been paid for the withdrawal of the Lot(s) (as outlined in clause 21 (Withdrawn Lot(s)).
15.4. If the Removal Deadline is not met, the Consignor will be required to pay RMS (i) a removal fee of up to $600.00 USD and (ii) a daily storage fee of up to $30.00 USD per Lot(s) until full payment and instructions for transport have been received. Please note it is the Consignor’s responsibility to insure their Lot(s) whilst in storage.
15.5. If the Consignor has not removed their Lot(s) from the storage facility within 6 months of the auction date, RMS has the right to enter the Lot(s) into an auction at no reserve or to sell it via private sale for fair market value. Once sold, RMS will retain all reasonable Expenses and Fees including, auction fees if sold via auction, and if sold via private sale, a 20% commission; if there are any remaining funds, these will be returned to the Consignor within 30 business days of the Sale.
15.6. RMS shall have the right to exercise a charge or lien on the non-sold Lot(s) or any other property belonging to the Consignor in the possession of RMS if the Consignor owes RMS money, and to apply any money due or to become due to the Consignor to the outstanding money the Consignor owes to RMS.
16. Cancellation/Rescission of Auction:
16.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS 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 RMS believes the following events have occurred or have a reasonable chance of occurring:
16.1.1. Force majeure events, including but not limited to:
16.1.1.1. Any natural disaster that, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form;
16.1.1.2. Structural damage to the auction venue prior to the auction that, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form; and
16.1.1.3. Any terrorist event, pandemic (including resulting governmental restrictions), war, as well as any “guideline” or “recommendation” by government (local, state/province, federal/national) and/or accredited health organizations (including the World Health Organization) that, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form.
16.1.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the auction that necessitate or make prudent a cancellation.
16.2. If the auction is cancelled for any of the reasons outlined in this clause, RMS has the right-of-first refusal to consign and sell the Lot(s) for up to one year from the date of cancellation. If the Consignor has an opportunity to place the Lot(s) in an auction or sell via private sale, RMS has the right to meet the economic terms of the opportunity and sell on behalf of the Consignor for up to 5 business days from the Consignor providing notice.
17. Cancellation/Rescission of Lot(s):
17.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the Sale of a Lot(s) and will not be liable to the Consignor 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:
17.1.1. RMS opines that the Lot(s) has been intentionally or materially misrepresented by the Consignor;
17.1.2. RMS opines that physical damage to the Lot(s), which cannot be sufficiently repaired prior to the auction, occurred after these Conditions was signed;
17.1.3. RMS is served with a lawsuit or threatened with a Dispute from a third party in relation to the Lot(s);
17.1.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot(s);
17.1.5. Material issues regarding the 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;
17.1.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot(s) that cannot be reasonably cured or RMS believes would expose it to claims or Disputes from a third party;
17.1.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot(s) at the auction that necessitate a cancellation; or
17.1.8. If there are Disputes, claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a Lot(s) not being authentic, being misrepresented, having an encumbered Title or registration, having an 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(s) and reimburse the payment to the Buyer if RMS in its sole discretion deems the Buyer’s claims to be valid.
17.2. If the Sale of the Lot(s) is cancelled for any of the reasons outlined in this clause, RMS has the right-of-first refusal to consign and sell the Lot(s) for up to one year from the date of cancellation. If the Consignor has an opportunity to place the Lot(s) in an auction or sell via private sale, RMS has the right to meet the economic terms of the opportunity and sell on behalf of the Consignor for up to 5 business days from the Consignor providing notice.
18. Estimates: Any pre-sale estimates are intended as guides for prospective Bidders. RMS makes no representation or warranty of the anticipated selling price of a Lot(s), and no estimate anywhere by RMS of the selling price of a Lot(s) may be relied upon as a prediction of the actual selling price. Estimates included online, in pre-mailers, in 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 acknowledges that RMS will not be liable for any errors or omissions in the pre-sale estimates of a Lot(s), and these pre-sale estimates make no guarantees, representations, or warranties whatsoever to the Consignor with respect to a Lot(s)’ value.
19. Odometer Statement: The Consignor will provide a duly executed odometer statement on or before the first day of the auction, and further THE CONSIGNOR ACCEPTS SOLE RESPONSIBILITY AND SHALL INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, EXPENSES, DAMAGES, COSTS, ACTIONS, AND LIABILITIES, INCLUDING WITHOUT LIMITATION TO COURT COSTS AND ATTORNEYS’ FEES, OF WHATEVER KIND OR NATURE THAT MAY OR MAY NOT OCCUR, WHETHER KNOWN OR UNKNOWN, ON THE ACCOUNT OF, ARISING OUT OF, OR RELATED TO THE ACCURACY OR INACCURACY OF SUCH STATEMENT.
20. Insurance: The Consignor will be responsible for maintaining adequate property insurance on the Lot(s) at all times, and this insurance must be at least equal to the aggregate low pre-sale auction estimate for the Lot(s) or such other amount agreed to between Consignor and RMS, which in each case shall include insurance for damages to the Lot(s) 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 Lot(s) from RMS. The Consignor agrees that RMS and its respective affiliates and agents will not be responsible for, and the Consignor releases RMS and its respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the Lot(s).
21. Withdrawn Lot(s):
21.1. The Consignor acknowledges that RMS has incurred and will incur significant costs preparing, advertising, marketing, and promoting the Lot(s) for the auction.
21.2. If the Consignor withdraws one or more of the Lot(s) from the auction after the signing of these Conditions or otherwise sells the Lot(s) in violation of these Conditions, within 10 business days of RMS providing notice, the Consignor will pay RMS the Buyer’s Premium and 50% of the Seller’s Commission (if the Seller’s Commission is either listed as 0% or, waived in the Specific Information or Specific Conditions of the Auction Consignment Agreement, for the purposes of this clause, the Seller’s Commission will be 5%) that would have been due under these Conditions on the Lot(s) (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
22. Online Auction Services are “As Available” and “As Is.”:
22.1. Bids on a Lot(s) may be placed via websites, telephone services, applications, tools, and RMS’ online auction platform (collectively “Services”).
22.2. Although RMS endeavors to keep the Services safe, secure, and functioning properly, RMS cannot guarantee the continuous operation of or access to the Services or a Bidder’s ability to connect and navigate the Services.
22.3. Consignors agree that they are making use of the Services at their own risk and that the Services are being provided to the Consignors 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.
23. Bid Display: RMS may use a bid display and currency conversion function; however, these are for informational purposes only and are not to be relied on by anyone as the bids, and currencies listed on the bid display are not real-time bids or conversions pegged to market rates. Errors and inaccuracies may occur in the operation of the bid display. To be clear, the bid price stated by the auctioneer is the prevailing and binding bid price.
24. Legal Action:
24.1. The governing law and jurisdiction for any legal action will be as follows:
24.2. For Auctions Held in the United States: These Conditions shall be interpreted in accordance with the laws of the State of Michigan, U.S., without regard to choice of law principles. Any dispute, claim, or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Conditions shall exclusively be subject to arbitration, and shall first be subject to mediation as a condition precedent to arbitration. If mediation is unsuccessful, the parties shall proceed to arbitration near Detroit, Michigan, before one arbitrator and all proceedings shall be conducted in English. The mediation and arbitration shall be administered by the American Arbitration Association pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to the auction or the Lot(s), 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 Consignor agrees that the maximum liability of RMS arising out of or related to these Conditions or any claim or dispute between the parties regarding the Lot(s) or auction shall be the Seller’s Commission that would have been due under clause 4.1. of these Conditions on the Lot(s) (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
24.3. For Auctions Held Outside of the United States: These Conditions shall be interpreted in accordance with the laws of England, without regard to choice of law principles. Any dispute, claim, or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation, or validity thereof including the determination of the scope or applicability of these Conditions to arbitrate, 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 London, England before one arbitrator and, all proceedings shall be conducted in English. The mediation and arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to the auction or the Lot(s), 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 Consignor agrees that the maximum liability of RMS arising out of or related to these Conditions or any claim or dispute between the parties regarding the Lot(s) or auction shall be the Seller’s Commission that would have been due under clause 4.1. of these Conditions on the Lot(s) (a) Reserve; (b) if offered without Reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS
25. Bidding Restrictions: The Consignor hereby agrees not to bid on his/her/their Lot(s). Although the auctioneer shall be entitled to bid on the Consignor’s behalf in an amount not to exceed 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 Lot(s). If, however, in violation of the foregoing, the Consignor (or his or her agent) bids on his/her/their Lot(s) and becomes the successful bidder, the Expenses and Fees and Buyer’s Premium on the Hammer Price shall be payable by the Consignor. If the Consignor does not pay in accordance with this clause within 10 business days, his/her/their Lot(s) may be sold by RMS without Reserve.
26. Lot’s Batteries: If RMS receives a Lot(s) with a dead battery, or shows signs of a draining battery, RMS will use commercially reasonable effort to install a new battery, and an automatic $200.00 USD (or the local currency equivalent) replacement fee will be charged to the Consignor. In the event a new or replacement battery costs more than $200.00 USD (or the local currency equivalent), RMS will charge the actual cost of battery plus $200.00 USD, if the battery is replaceable by an RMS employee.
27. Antifreeze Is the Responsibility of the Consignor:
27.1. As the Consignor’s 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 6 months, they have winterized their Lot(s) for shipping in freezing temperatures. Winterizing one or more of the Lot(s) means that the Consignor has completely filled and properly mixed, at a minimum, –25°C-rated antifreeze into their Lot’s radiator.
27.2. If any damage occurs because the Consignor did not properly winterize their Lot(s), it will be the Consignor’s responsibility to cover the damages, and RMS may recoup these damages from the Consignor’s settlement. If it is found that the Consignor did not properly winterize their Lot(s), the associated costs with checking, filling, and disposing of the antifreeze will be recouped from the Consignor’s settlement; if the Lot(s) is not sold, the Consignor must pay RMS before the Consignor can retake possession of their Lot(s). If already settled, the Consignor must pay RMS directly.
28. 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.
29. 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, RMS 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 RMS has acted as the Consignor’s attorney or tax advisor.
30. Data Use: The Consignor 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 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 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 RMS, unsubscribe to any services, or purge your personal information from RMS’ systems, please email privacy@rmsothebys.com.
31. Anti-Money Laundering: The Consignor 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.
32. Photography, Videography, and Illustrations: All photographs, videography, and illustrations commissioned by RMS for the 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.
33. Confidentiality of the Buyer(s) Identity: Unless RMS elects to do so in its sole discretion, RMS shall not be required to share or produce the name of Buyer(s) to the Consignor(s) without a court order or except in accordance with government regulation.
34. Consumer Protection Rights:
34.1. 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(s) to rescind the Sale of the Lot(s). Nothing in this clause shall affect any Buyer(s) legal rights that shall apply against RMS or the Consignor as a result of any applicable laws.
34.1.1. The definition of Business for these Conditions is a natural person or legal entity in the business of selling automobiles and acting for purposes relating to such business (“Business”).
34.1.2. 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.
35. Set-Off: If the Consignor owes RMS money from this or an unrelated transaction, RMS may unilaterally retain funds to satisfy the amount owed by the Consignor. RMS may unilaterally retain funds from the Buyer if the Consignor has breached the terms outlined in these Conditions.
36. Cryptocurrency: RMS has partnered with BitPay, the world’s largest provider of bitcoin and cryptocurrency payment services, to collect cryptocurrency payments via email invoice. If a Buyer elects to pay via cryptocurrency, among other BitPay requirements as outlined on https://bitpay.com/, the Buyer must be pre-approved by BitPay and the Buyer must pay a 1% vendor fee which will be added to the Buyer’s BitPay invoice.
37. W-9 and W-8 Form Collection:
37.1. Beginning 1 January 2022, in order for RMS to comply with U.S. tax law:
37.1.1. A Form W-9 must be provided to RMS from every U.S. resident Consignor who will receive a payment from any RMS entity; and
37.1.2. A Form W-8 must be provided to RMS from every non-U.S. resident Consignor selling a Lot(s) in a US-based sale who will receive a payment from an RMS United States entity.
37.1.2.1. Please note that, there may be very limited circumstances in which RMS must obtain a Form W-8 from a non-U.S. resident Consignor receiving a payment for an RMS sale outside of the United States.; however, RMS will require a W8 BEN if the Consignor is an individual, and a W8 BEN-E if the Consignor is a company, including dealers.
37.2. RMS must obtain the Form W-9 and Form W-8 prior to payment being made to the Consignor.
SPECIFICALLY FOR RMS CALIFORNIA AUCTIONS:
38. Notice to Consignor as Required by the California Department of Motor Vehicles Code Section 11729: Failure by RMS to comply with the terms of these Conditions may be in violation of statute, which could result in criminal or administrative sanctions, or both. If you feel that RMS has not complied with the terms of these Conditions, please contact an investigator with the California Department of Motor Vehicles.
39. Contract Cancellation Agreement: In the event of a successful bid, if a Lot(s) has a combined Hammer Price and Buyers’ Premium equaling less than $40,000.00 USD, then under the Car Buyer’s Bill of Rights (FFVR 35), RMS is required to offer a 2-day contract cancellation option agreement to the successful Buyer. If the Buyer exercises this contract cancellation option, RMS is obligated to return any funds paid by the Buyer and cancel the sale. If the sale is canceled, RMS is under no obligation to pay the Consignor for the Lot(s), and the Lot(s) will be deemed a no-sale.
SPECIFICALLY FOR RMS AUCTIONS HELD IN EITHER PARIS, FRANCE; MONTE CARLO, MONACO; MILAN, ITALY; OR ST. MORITZ, SWITZERLAND:
40. Vehicle Registration Number (If Applicable):
40.1. If the Consignor wishes to sell the Lot(s) but retain the rights to the registration number of the Lot(s), it is the Consignor’s responsibility to notify RMS in writing.
40.2. It shall be the Consignor’s responsibility to take all necessary steps to ensure that the current Lot(s) registration number is reserved and that a new number is allocated prior to the Lot(s) being sold at the auction, and if the Consignor does not do so, RMS shall not be responsible for any loss or damage whatsoever arising out of the sale of the Lot(s) or its registration number.
40.3. RMS may, at its discretion (without any assumption of responsibility or duty toward the Consignor or the Buyer), take such steps to facilitate the reservation or transfer of any particular registration number as it thinks fit in order to assist the Consignor or Buyer, but strictly on the condition that no claim attaches to RMS for taking any such steps, whether arising out of RMS’ negligence or any other cause whatsoever.
41. Lot(s) Under Temporary Import:
41.1. If a Lot(s) is brought into Europe from a country outside of Europe, the Lot(s) must be placed on either RMS’ bond in the United Kingdom or one of RMS’ nominated customs 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 Lot(s).
41.2. 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, for which RMS will provide the details of as and when necessary.
41.3. If the Lot(s) does not sell at the auction, the Lot(s) must be re-exported to the country of origin, transferred to another temporary bond, or, alternatively, the Consignor must pay any and all relevant taxes if the Consignor would like the Lot(s) to remain in Europe. The Lot(s) cannot be released from RMS’ care until an option is executed.
41.4. Should the Consignor decide for the Lot(s) to remain in Europe when purchased, the Buyer is responsible to pay any and all import fees for the Lot(s).
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