ADDENDUM TO CONSIGNORS’ CONDITIONS OF BUSINESS (“ADDENDUM”)
1. Auction Date Change. RM Auctions Deutschland GmbH d.b.a. RM Sotheby’s (“RMS”) Essen auction originally scheduled for 27 March 2020, to which your Motor Car or Any Other Lot is consigned, will be moved to an on-site auction scheduled to take place on 26 June 2020 upon written confirmation (e.g., email or text) with one of RMS’ Car Specialists.
2. Overriding Clause. Except as set forth in this Addendum, the Consignors’ Conditions of Business (“Conditions”) are unaffected and shall continue in full force and effect in accordance with their terms. If there is a conflict between this Addendum and the Conditions, the terms of this Addendum will supersede.
CONSIGNORS’ CONDITIONS OF BUSINESS
1. Introduction.
1.1 Please ensure that you read and understand these Conditions of Business prior to consigning a Motor Car or Any Other Lot at this or any other RM Auctions Deutschland GmbH d.b.a. RM Sotheby’s (“RMS”) sale.
1.2 RMS’ contractual relationship with the Consignor is governed by:
1.2.1 These Consignors’ Conditions of Business;
1.2.2 The Consignment Agreement Package, consisting of the Consignment Agreement, the sales contract, the power of attorney and the payment instructions (for the avoidance of doubt, this is the fillable written documentation package, which contains the Consignors’ personal data and information regarding the motor cars or any other lots);
1.2.3 The Conditions of Business displayed in the auction salesroom;
1.2.4 The Conditions of Business displayed on RMS’ website; and
1.2.5 Any modifications to the Conditions of Business as disclosed in a salesroom notice or auctioneer’s announcement.
(The aforementioned documents according to clauses 1.2.1 to 1.2.5 are hereinafter jointly referred to as “Contract Documents”.)
1.3 As auctioneer, subject to clause 1.3.1, RMS acts as the agent for the Consignor, and a sales contract is concluded directly between the Consignor and the Bidder.
1.3.1 If a Motor Car or Any Other Lot has an ownership interest, RMS will indicate this (in both the auction catalogue and on the RMS' website) by the use of a symbol preceding the year, make and model of the motor car (or preceding the description of any other lot) on that lot’s page in the auction catalogue and on the website. In the auction catalogue, this symbol will be defined in the catalogue’s legend. Motor Cars or Any Other Lots with an ownership interest symbol have an ownership interest.
2. Receipt of Motor Cars or Any Other Lots by RMS. The consigned Motor Cars or Any Other Lots shall be delivered to RMS according to the provisions of this agreement. RMS agrees to accept the Motor Cars or Any Other Lots in good faith and not to permit their use for purposes other than those stated in this agreement without the express written consent of the Consignor.
3. Services. RMS shall provide auction services, particularly sales facilities, clerks, support staff, event advertising and promotion. In connection with the auction, RMS shall have absolute discretion with regard to the Motor Car or Any Other Lot or any RMS auction as to (a) consulting any expert either before or after the sale, (b) researching the provenance, (c) grouping and providing the catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the sale and (e) any other services required to conduct the sale.
4. Commissions. If a Motor Car or Any Other Lot is sold, the Consignor agrees to pay the Sellers’ Commission plus any value added tax (VAT) or sales tax accruing on the last accepted bid to RMS, as indicated in the Commissions section of the Consignment Agreement. Furthermore, the Consignor acknowledges that RMS will collect a Buyers’ Premium from the Buyer of the Motor Car or Any Other Lot based on the last accepted bid on the Motor Car or Any Other Lot. Please note that the Buyers’ Premium may be subject to change at the discretion of RMS if the standard Buyers’ Premium for the auction changes. To be clear, the Buyers’ Premium on the Motor Car or Any Other Lot will not be different from the Buyers’ Premium for other motor cars or any other lots in the auction.
5. Transfer and Delivery.
5.1 As an accommodation to the Consignor, RMS agrees to act as an intermediary between the Consignor and the Buyer by accepting the purchase price from the Buyer, transferring the Motor Car or Any Other Lot to the Buyer and delivering the amounts due to the Consignor under this agreement. If the Motor Car or Any Other Lot is sold by RMS during the term of this agreement, the money due to the Consignor shall be disbursed within 20 business days after the sale, provided that the purchase price and any applicable commissions and fees have been received by RMS in accordance with the provisions of this agreement.
5.2 As used in this agreement, a “sale” occurs between the Consignor and the Buyer when the hammer or equivalent device or mechanism drops on the last accepted bid or when the auctioneer awards the Motor Car or Any Other Lot to the highest Bidder.
5.3 The Consignor shall authorize RMS to release the Motor Car or Any Other Lot to the successful Buyer upon RMS receiving full payment of cleared funds from the Buyer (or, where applicable, after financing terms have been agreed with RMS).
5.4 The Consignor shall be obliged to rely solely upon the Buyer (its contractual partner) for payment.
5.5 Before payment of any money due to the Consignor is made, the Consignor undertakes to provide RMS with the documents necessary to transfer the Ownership (defined below) of the Motor Car or Any Other Lot to the Buyer (such as registration certificates).
5.6 If RMS has reason to believe or is notified that the (i) Consignor’s breach of the Contractual Obligations, (ii) alleged breach of the Contractual Obligations, (iii) Consignor’s actions could potentially cause RMS liability, and/or (iv) Buyer claims material misrepresentation within the Twenty Day Window (defined below) as outlined in clause 10 (“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.
6. Exclusivity; Sales Within and Outside the Auction.
6.1 The Consignor grants to RMS the exclusive right and authority to advertise and sell the Motor Car or Any Other Lot for a period beginning with the date of these Conditions and ending 90 business days following the auction.
6.1.1 If the Motor Car or Any Other Lot is sold prior to the auction and RMS has not agreed in writing to this sale, the Motor Car or Any Other Lot will then be considered “withdrawn” from the auction by the Consignor, and the Consignor agrees to abide by clause 20, Withdrawn Motor Cars or Any Other Lots, of these Conditions.
6.1.2 If the Motor Car or Any Other Lot does not sell at auction, the Consignor grants RMS the authority for up to 90 business days after the auction to (a) list the Motor Car or Any Other Lot for sale on RMS’ Private Sales website, (b) advertise, in other media at RMS’ discretion, the Motor Car or Any Other Lot for sale, and (c) if there was a reserve price agreed to between the parties, unilaterally sell the Motor Car or Any Other Lot for an amount equal to or greater than the reserve price.
7. Documents, Registration Certificates and/or Further Records Evidencing the Chain of Ownership.
7.1 It is absolutely necessary that the Consignor provides any and all documents, registration certificates or other relevant records evidencing Ownership and/or government registrations (such as sales contracts and deeds of sale) (“Title”) for the Motor Car or Any Other Lot to RMS before the auction of the motor car or any other lot starts.
7.2 The Consignor warrants that the Consignor is the sole and only owner of the Motor Car or Any Other Lot and that the Consignor has full right and authority to sell the Motor Car or Any Other Lot (“Ownership”).
7.3 The Consignor shall be obliged to provide RMS with a good, clear and, where required, transferable Title to the Motor Car or Any Other Lot in advance of the auction.
7.3.1 If for whatever reason RMS is forced to correct any Title defect, the Consignor agrees to first pay RMS a minimum fee of €500 and, if the Title defect costs more than €500 to correct, the Consignor agrees to pay for any and all additional reasonable expenses related to correcting such defect (“Title Fees”). The Title Fees will be deducted from the Consignor’s proceeds of sale.
7.3.1.1 In cases where pre-existing Titles do not exist and insurance bonds are necessary, the Consignor will be charged Title Fees on a case-by-case basis.
7.4 In order to facilitate the transfer of Title and/or the transfer of Ownership of the Motor Car or Any Other Lot, the Consignor agrees to sign a Power of Attorney that is attached to the Consignment Agreement Package.
7.5 The Consignor will indemnify and hold RMS harmless from any claims, demands, losses, expenses, damages, costs, actions, and liabilities, including without limitation to court costs and attorney fees, of whatever kind or nature that may or may not occur, whether known or unknown, on the account of or arising out of all matters related to the Ownership and Titles.
8. Non-Payment by Buyer.
8.1 If the Buyer fails to pay, RMS shall make reasonable efforts to effect payment by the Buyer. However, RMS shall not be liable to the Consignor for payment.
8.2 If the Buyer fails to pay RMS, then at RMS’ sole discretion, RMS may cancel the sale and return the Motor Car or Any Other Lot to the Consignor, enforce payment by the Buyer or take other actions permitted by law.
8.3 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, the Consignor hereby agrees, simultaneously with such payment, to assign to RMS any and all rights that the Consignor may have against the relevant Buyer to the extent of such payment. The Consignor agrees to execute any documents reasonably necessary to evidence this transfer, including documents with regard to the Consignor’s obligations set forth in this agreement. The Consignor shall authorize 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 Contract Documents.
9. Descriptions of Motor Cars or Any Other Lots.
9.1 The Consignor agrees to accept sole responsibility and liability for any representations made by RMS that accurately repeat the information supplied by the Consignor as to the characteristics, features, condition, correctness, authenticity or history of the Motor Car or Any Other Lot. Furthermore, the Consignor agrees to indemnify, defend and hold RMS harmless from any claims that may be asserted with respect to any such representations.
9.2 The Consignor shall be obliged to carefully review any and all catalogue descriptions within 2 business days of receiving the catalogue descriptions from RMS (usually from the RMS Research Department) and approve them, unless modifications are necessary.
10. Twenty Day Window for Rescission of Sale due to Material Misrepresentation Claims.
10.1. RMS will review concerns regarding material misrepresentations raised by the Buyer for 20 business days from the date of the auction.
10.2. If it is found that the alleged material misrepresentation (that would not have been reasonably found through the Bidder’s due diligence) materially decreases the value or functionality of the Motor Car or Any Other Lot, RMS will work with the Buyer to reach a solution.
10.2.1. The Consignor agrees to indemnify, defend, and hold RMS harmless from any claims that may be made with respect to any Buyer alleged damages or liability, including but not limited to, travel expenses, repair expenses, and inspection expenses in any way related to actions taken in accordance with clause 10.
(clause 10 to 10.2.1 together “Twenty Day Window”)
11. Operation of the Motor Cars or Any Other Lots; Works Regarding Start/Movement.
11.1 The Consignor warrants that the Motor Car or Any Other Lot is in a safe and operable condition so that it can be driven or moved by RMS’ employees or agents. The Consignor acknowledges that, should RMS, at RMS’ sole discretion, determine that the Motor Car or Any Other Lot is not safe to operate or move, the Motor Car or Any Other Lot will not be allowed across the block under its own power.
11.2 The Consignor shall authorize RMS to perform minor work on the Motor Car or Any Other Lot to facilitate the Motor Car or Any Other Lot to start and drive across the auction block or be presentable for sale. The Consignor shall indemnify RMS and hold it harmless from any damage or liability caused during such works despite exercising the appropriate diligence.
12. Drive or Movement with Regard to the Sale; Insurance Cover. The Consignor warrants that the Motor Car or Any Other Lot 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 Motor Car or Any Other Lot is not safe to operate or move, the Motor Car or Any Other Lot will not be allowed across the block under its own power.
13. No-Sale of Motor Cars or Any Other Lots.
13.1 If there is a no-sale, any and all fees owing, including but not limited to Title Fees, must be paid to RMS before the Motor Car or Any Other Lot is released to the Consignor.
13.2 If there is a no-sale, (i) the non-sold Motor Car, including motorcycles, boats, and trailers, will be removed from the auction site immediately following the auction and taken to a secure storage facility AND (ii) the Consignor will be required to pay RMS a removal fee of up to €350 plus VAT per Motor Car.
13.3 Contingent upon clause 13.2 being satisfied, the Motor Car’s Title (as long as the Consignor does not owe RMS any money) will be returned to the Consignor within 60 business days.
13.4 If any Motor Cars, including motorcycles, boats, and trailers, are not removed by 5:00 p.m. in the jurisdiction in which the auction was held (or the Motor Car or Any Other Lot is not granted authority to be removed due to clause 13.1), RMS will remove the motor cars, including motorcycles, boats, and trailers, and the Consignor is required to pay RMS a daily storage fee of up to €50 plus VAT per Motor Car.
13.4.1 If the motor car is temporarily imported into Germany then it will be removed to a separate bonded warehouse operated by Senator International. The Consignor will be required to RMS a removal fee of €350 plus VAT per motor car and a daily storage fee of €50 plus VAT per motor car whilst in storage.
13.5 For the removal of any non-motor car lots, including but not limited to memorabilia, jewellery and clothing, from the storage facility, a direct shipping company will contact the Consignor after the sale; please note that a reasonable memorabilia removal and storage fee will apply.
13.6 If the Consignor fails to remove their Motor Car or Any Other Lot from the storage facility within 6 months of the sale date, RMS shall be entitled to enter the Motor Car or Any Other Lot into an auction at no reserve or sell it via private contract for fair market value.
13.6.1 Once sold, RMS shall retain all agreed and/or reasonable expenses, auction fees if sold via auction, and if sold via private contract, a 20% commission. If there are any remaining funds, these shall be returned to the Consignor within 30 business days of the sale.
13.7 RMS shall be entitled to exercise a charge or lien on the non-sold Motor Cars or Any Other Lots, or any other property belonging to the Consignor in the possession of RMS if the Consignor owes RMS money, and to set off any money due or to become due to the Consignor against the outstanding money the Consignor owes to RMS.
14. Cancellation/Rescission of Auction. RMS shall make all reasonable efforts to avoid the cancellation/rescission of an auction. However, RMS shall have the sole discretion to cancel/rescind the auction. If it does so, it shall not be liable to the Consignor for any loss or damage resulting from such cancellation/rescission, without prejudice to clause 20, in events of force majeure or other events unforeseeable at the time the agreement was made, when RMS has not been able to prevent such events despite exercising the diligence reasonable according to the circumstances of the individual case, particularly:
14.1 Natural disasters, which despite reasonable efforts, prevent RMS from holding the auction;
14.2 Structural damage caused by unforeseeable outside events to the auction venue prior to the auction, which despite reasonable efforts, prevents RMS from holding the auction;
14.3 Any terrorist event, disease, war, as well as any “guideline” or “recommendation” by government (local, state/province, federal/national) that, despite reasonable efforts, restricts RMS from holding the auction; and/or
14.4 Government action/court proceedings, orders, injunctions, regulations or laws that necessitate the cancellation of the auction.
15. Cancellation/Rescission of the Sale of a Lot (Motor Car or Any Other Lot). RMS shall use all reasonable efforts to avoid cancellation/rescission of the sale of a lot (Motor Car or Any Other Lot). However, RMS has the sole discretion to cancel/rescind the sale of a Motor Car or Any Other Lot. If it does so, without prejudice to clause 20, RMS shall not be liable to the Consignor for any loss or damage resulting from the cancellation/rescission, in the following cases:
15.1 The Motor Car or Any Other Lot was intentionally and significantly misrepresented by the Consignor or Buyer;
15.2 Physical damage to the Motor Car or Any Other Lot, which cannot be sufficiently repaired prior to the auction, occurred after this agreement was signed, without RMS being responsible;
15.3 A third party asserts claims with regard to the Motor Car or Any Other Lot, particularly with regard to an Ownership position;
15.4 RMS faces significant reputational damage that would cause monetary damage regarding the sale of the Motor Car or Any Other Lot;
15.5 Material issues regarding the Title, registration, or transfer of Ownership that cannot be reasonably cured;
15.6 Material issues regarding the provenance, merchantability, or authenticity of the Motor Car or Any Other Lot that cannot be reasonably cured;
15.7 Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Motor Car or Any Other Lot at auction that necessitate a cancellation; or
15.8 Legitimate claims, accusations, comments or similar communications made by the Buyer with regard to the purchase of the Motor Car or Any Other Lot are asserted, according to which it is non-authentic, misrepresented, encumbered with rights of third parties or has a potentially required, but encumbered, registration, has unidentified defects or is exposed to a similar claim; in such cases, RMS shall be entitled to retain any Buyer’s funds on its own account, to cancel the sale of the Motor Car or Any Other Lot and/or to reimburse the payment to the Buyer if RMS deems the Buyer’s claims valid.
16. Estimates and Catalogue Descriptions.
16.1 Any pre-sale estimates are intended as guides for prospective Bidders. RMS shall not make any representations or warranties regarding the anticipated selling price of the Motor Cars or Any Other Lots. Estimates shall never be predictions of the actual selling price.
16.2 Estimates included in catalogues, in pre-mailers, in any advertisements, online or elsewhere are preliminary only, and they are subject to revision by RMS from time to time at its sole discretion.
16.3 The Consignors acknowledge that RMS will not be liable for any errors or omissions in the catalogue or other descriptions of the Motor Cars or Any Other Lots, and these descriptions do not establish any guarantees, representations or warranties whatsoever to the Consignors with respect to the Motor Cars or Any Other Lots as well as their attribution, legal title, condition, value or other characteristics.
17. Odometer Statement. The Consignor shall be obliged to provide a duly executed odometer statement on or before the first day of the auction and to accept sole liability for the accuracy or inaccuracy of such statement.
18. Reserve.
18.1 A reserve price noted in the fillable section of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor. Reserve prices may be lowered at any time by the Consignor, either verbally or in writing, but they may not be raised. The reserve does not include commissions to RMS. RMS has the right to sell a Motor Car or Any Other Lot at a price below the agreed verbal or written reserve provided that the Consignor receives the same net proceeds as the Consignor would have received had the reserve been met. If no reserve, indicate clearly by writing “NONE” in the space provided in the fillable section of the Auction Consignment Agreement.
18.2 If RMS contributes to the hammer price to meet a reserve, the reserve for the respective Motor Car or Any Other Lot shall become the hammer price plus RMS’ contribution for purposes of commission.
19. Insurance. The Consignor shall be responsible for maintaining adequate property insurance on the Motor Car or Any Other Lot at all times, and this insurance must be at least equal to the aggregate low pre-sale auction estimate for the Motor Car or Any Other Lot. In any event, the insurance shall cover damage to the Motor Car or Any Other Lot, and shall not be cancellable by the insurance company until after Ownership and proofs of Ownership have passed to the Buyer, and the Buyer has taken possession of the Motor Car or Any Other Lot 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 Motor Car or Any Other Lot.
20. Withdrawn Motor Cars or Any Other Lots.
20.1 If the Consignor withdraws a Motor Car or Any Other Lot from the auction, the Consignor shall be obliged, in particular, to reimburse RMS for the costs that accrued or will accrue for the preparation, advertising and marketing, and for the promotion of the Motor Car or Any Other Lot for the auction.
20.2 If the Consignor withdraws one or more of the Motor Cars or Any Other Lots from the auction after the signing of this agreement, the Consignor will pay RMS the Buyers’ Premium and Sellers’ Commission that would have been due under this agreement had the Motor Car or Any Other Lot (i) met the relevant reserve, (ii) if offered without reserve, the Motor Car’s or Any Other Lot’s published low estimate or (iii) if published without low estimate, the Motor Car’s or Any Other Lot’s fair market value as determined by RMS, by 5:00 p.m. of the next business day following the auction.
21. Applicable Law/Place of Jurisdiction.
21.1 The contractual relationship between the parties, including these Conditions of Business, shall be subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
21.2 The place of jurisdiction for all disputes arising from and/or in connection with the contractual relationship, including these Conditions of Business (also for the bill of sale and cheque litigation) shall take place in the jurisdiction where the auction is to take place, to the extent the Consignor is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law. However, RMS shall also be entitled, in all cases, to bring an action at the place of performance of the delivery obligation or at the general place of jurisdiction of the Consignor. Overriding statutory provisions, particularly with regard to exclusive jurisdictions, shall remain unaffected.
22. Marketing Fee. The marketing fee shall be non-refundable and shall not be credited towards the sales commission.
23. Bidding Restrictions. The Consignor hereby undertakes not to bid on the Motor Car or Any Other Lot. Although the auctioneer is entitled to bid on the Consignor’s behalf up to the amount of the reserve (if applicable), the Consignor shall neither instruct nor permit any other person to bid on behalf of the Consignor for the Motor Car or Any Other Lot. If, however, in violation of the foregoing, the Consignor (or their agent) bids on the Motor Car or Any Other Lot and becomes the successful Bidder, the expenses, entry fee, repair expenses, Buyers’ Premium and Sellers’ Commission on the hammer price shall be payable by the Consignor. If the Consignor does not pay in accordance with this clause, the relevant Motor Car or Any Other Lot may be sold without reserve.
24. Batteries of Motor Cars or Any Other Lots. If the Motor Car or Any Other Lot arrives at the auction with a dead/defective battery or shows signs of a draining battery and therefore needs to be exchanged, the costs for such exchanges shall be charged to the Consignor.
25. Anti-Freeze Is the Responsibility of the Consignor.
25.1 The Consignor shall bear the local conditions in mind. As the Consignor’s Motor Car or Any Other Lot could be shipped to a location where below freezing temperatures are possible, the Consignor shall ensure that the Motor Car or Any Other Lot has been winterised within the last 6 months for shipping in freezing temperatures. Winterising Motor Cars or Any Other Lots means that the Consignor has completely filled the radiator of the Motor Car or Any Other Lot with anti-freeze for temperatures of at least up to -20°F and has properly mixed it.
25.2 If damage occurs because the Consignor has not properly winterised the Motor Car or Any Other Lot, it shall be the Consignor’s responsibility to cover the damages, and RMS may deduct such damages from the Consignor’s settlement. If it is found that the Consignor has not properly winterised the Motor Car or Any Other Lot, the associated costs for checking, filling and disposing the anti-freeze shall be deducted from the Consignor’s settlement. If the Motor Car or Any Other Lot is not sold, the Consignor shall reimburse RMS for the costs accruing due to the failure to winterise the Motor Car or Any Other Lot before the Consignor can re-take possession of the Motor Car or Any Other Lot. If payment has already been made, the Consignor shall reimburse the costs directly to RMS.
26. Entire Agreement; Written Form. Only the Contract Documents shall be relevant to the legal relationship between the parties. They fully reflect all arrangements made between the parties and shall be binding upon them and their respective heirs, personal representatives and agents. Except as otherwise expressly provided herein, the Contract Documents shall not be modified, except in writing. Where required by the Contract Documents, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter and the neuter gender shall include the masculine and feminine.
27. No Legal or Tax Advice. The Consignor shall be solely responsible for their behaviour and shall have the opportunity to obtain legal or fiscal advice. Notwithstanding any references to any transactions or arrangements in this agreement, or any simultaneous written, verbal or implied understandings of the parties relating to the subject matter of this agreement, RMS shall not provide any legal or tax advice or tax planning services to the Consignor or for the Consignor’s benefit in connection with the transactions contemplated by this agreement. The Consignor shall be responsible for complying with all legal and/or fiscal regulations applicable to them.
28. Data Protection. RMS shall treat personal data of the Consignor in accordance with the applicable laws and the RMS Privacy Policy. The complete Privacy Policy is provided at the bottom of the RMS website under the tab Data Protection and Conditions (https://rmsothebys.com/en/home/privacy-terms/). Please do not hesitate to contact us by e-mail at privacy@rmsothebys.com.
29. Anti-Money Laundering. The Consignor agrees to provide all information and assistance reasonably requested by RMS, which is reasonably requested by RMS according to applicable laws with regard to the RMS anti-money laundering provisions as well as all applicable anti-money laundering laws and regulations.
30. Photographs, Video Footage and Illustrations. All photographs, video footage and illustrations commissioned by RMS for Motor Cars or Any Other Lots shall be the absolute property of RMS, and RMS shall have the absolute right to use the photographs, video footage and illustrations as RMS deems fit.
31. Vehicle Registration Number.
31.1 If the Consignor wishes to sell a motor car but retain the registration number, the Consignor shall notify RMS in writing. It shall be the Consignor’s responsibility to take all necessary steps to ensure that, in such case, the current motor car registration number is reserved, and it shall provide, to the best of its ability, its support so that a new number is allocated prior to the motor car being sold at the auction. This shall apply, in particular, with regard to the facilitation of the timely registration of the motor car. If the Consignor fails to do so, RMS shall not be liable for any loss or damage whatsoever arising out of such failure.
31.2 RMS may, at its discretion (without any assumption of responsibility or duty towards the Consignor or the Buyer), take such steps to facilitate the reservation or transfer of any particular registration number if it is to be assumed that this helps the Consignor or Buyer, but strictly on the condition that no claim can be asserted against RMS for taking any such steps, whether arising out of RMS’ negligence or any other cause whatsoever.
32. Temporary Importation Under Bond.
32.1 With EU sales, if a Motor Car or Any Other Lot is brought into Europe from a country outside of Europe, it may be imported under bond. Fees and charges may vary from sale to sale. In some countries, the amount of such fees and charges is determined by the value of the Motor Car or Any Other Lot.
32.2 Motor Cars or Any Other Lots 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. Details regarding the relevant authorities can be obtained from RMS, where required.
32.3 If the motor car or any other lot does not sell at auction, the Motor Car or Any Other Lot must be re-exported to the country of origin or transferred to another temporary custody, where permitted. However, if the Consignor would like the Motor Car or Any Other Lot to remain in Europe, the Consignor shall bear the responsibility and pay any and all relevant taxes. Unless otherwise agreed, the Motor Car or Any Other Lot cannot be released from RMS’ custody until one of the aforementioned options is executed.
33. Liability.
33.1 RMS shall only be liable for gross negligence and intention as well as for the violation of such obligations the fulfilment of which makes the proper execution of this agreement possible in the first place and on the fulfilment of which the Consignor may usually rely (“Cardinal Obligation”).
33.2 With regard to the slightly negligent violation of a Cardinal Obligation, RMS’ liability shall be limited to the damage that could be foreseen upon the conclusion of the agreement and that is typical for this type of agreement.
33.3 RMS shall not be liable with regard to the slightly negligent violation of contractual obligations that are not Cardinal Obligations.
33.4 To the extent that RMS’ liability is limited or excluded, this shall also apply to the liability of the employees, agents or vicarious agents of RMS.
33.5 The aforementioned limitations and/or exclusions of liability shall not apply to cases of malicious concealment of defects, assumption of a guarantee or procurement risk, liability based on the Product Liability Act and personal injuries (injury to life, body or health) or to other cases of compulsory liability. The above shall not be related to any change of the burden of proof to the Consignor’s disadvantage.
34. Severability Clause. Should any provision of the Contract Documents be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a regulation that comes as close as possible to the purpose pursued by the invalid provision in economic terms, without being invalid.
35. Priority Clause. If the Contract Documents or these Conditions of Business are provided to the Consignor by RMS in the German and in the English language, the German version shall have priority.
