BIDDERS’ CONDITIONS OF BUSINESS
1. Scope, Definition of “Buyer,” and Contractual Documents.
1.1 Please ensure that you read and understand these Conditions of Business (“Conditions”) prior to bidding on a motor car or any other lot at this or any other auction of RM Auctions Deutschland GmbH d.b.a. RM Sotheby’s (“RMS”). Even though RMS’ Bidders’ Conditions of Business are standardized, there are unique jurisdictional requirements and terms that may not apply to every auction. By agreeing to these Conditions, you agree to be bound by these Conditions. Please note that these Conditions are subject to change, and it is each Bidder’s responsibility to apprise themselves of any changes to the Conditions. Bidders are encouraged to contact RMS’ Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Conditions. The term “Buyer” shall hereinafter be used for Bidders purchasing a motor car or any other lot.
1.2 RMS’ contractual relationship with Bidders is governed by the conditions set out in the registration form and:
1.2.1 These Conditions;
1.2.2 The Bidders’ Conditions of Business displayed in the auction salesroom;
1.2.3 The Bidders’ Conditions of Business displayed on RMS’ website;
1.2.4 The Key to Lot Symbols and/or Legend referenced in the auction catalogue; and
1.2.5 Salesroom notices, auctioneer’s announcements at the auction, and/or website updates insofar as these amend the Conditions as applicable on a case-by-case basis.
(together “Contractual Obligations”)
1.3 As auctioneer, RMS acts as agent for the Consignor, subject to clause 1.4, and a sales contract is made directly between the Consignor and the Buyer.
1.4 Occasionally, RMS may own a motor car or any other lot (and in such circumstances, acts in a principal capacity as the Seller) and/or may have a legal, beneficial, or financial interest in a motor car or any other lot as a secured creditor or otherwise. RMS will communicate any such information as necessary.
2. Bidder Due Diligence Responsibilities. The Bidder is responsible for any and all due diligence regarding any motor car or any other lot offered in an RMS sale, including but not limited to inspections and verification of the (i) condition, (ii) authenticity, (iii) completeness, and (iv) statements made in reference to the motor car or any other lot (“Bidder Due Diligence”).
3. Twenty Day Window for Rescission of Sale due to Material Misrepresentation.
3.1 RMS will review concerns regarding material misrepresentations raised by the Buyer for 20 business days from the date of the auction; after which time, all sales are considered “As Is” and “Where Is” as outlined in clause 4 below. Please send all concerns to legal@rmsothebys.com.
3.2 If it is found that the alleged material misrepresentation (that would not have been reasonably found through the Bidder 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.
3.2.1 The Buyer 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 3.
(clause 3 to 3.2.1 together “Twenty Day Window”)
4. All Sales Are “As Is” and “Where Is” and Liability.
4.1 No warranties or representations of any type whatsoever are made by RMS regarding any motor car or any other lot offered in an RMS sale. Statements printed in catalogues, online content, pre-mailers, advertisements, brochures, signs, and window cards, as well as verbal statements made by auctioneers or auction staff, are based on statements and historical files, if any, collected from the Consignor and other third party sources, and RMS is only obliged to verify or authenticate any such statements if RMS has become aware of or recognized circumstances that raise doubts regarding the authenticity of the motor car or other lot. All motor cars or any other lots are sold as is, where is, with no representations or warranties, expressed or implied.
4.2 RMS shall only be liable for gross negligence and intent, as well as for the violation of any such obligations (the compliance with which makes the execution of the agreement possible in the first place) and on compliance with which the Bidder/Buyer can usually rely (“Cardinal Duty”).
4.3 In regard to the violation of a Cardinal Duty caused by minor negligence, the liability of RMS shall be limited to any damage typical for the type of agreement and which was foreseeable at the time of contract conclusion.
4.4 RMS shall accept no liability for any violation of a contractual obligation that is not a Cardinal Duty and is caused by minor negligence.
4.5 Insofar as the liability of RMS is limited or excluded, this shall also apply to the liability of employees, representatives, or vicarious agents of RMS.
4.6 The aforementioned limitations or exclusions of liability shall not apply in case of fraudulent concealment of defects, assumption of a warranty or a purchase risk, liability under product liability law and personal injury (injury to life, limb, or health), or any other compulsory liability. This is not associated with any change to burden of proof.
5. Services. RMS provides auction services including, but not limited to, a sales facility, clerks, support staff, event advertising, and promotion. In connection with the auction, RMS will have absolute discretion with regard to the motor car and any other lot or any RMS auction as to (a) consulting any expert either before or after the sale, (b) researching provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
6. Registration Fee. In order to register to bid onsite at auction, Bidders must pay a bidder registration fee of €50. Please note that the registration fee outlined in the preceding sentence is subject to change by any salesroom notice, auctioneer’s announcement at the auction, catalogue update, or website update, and it is each Bidder’s responsibility to apprise themselves of any changes to the registration fee.
7. Bidding.
7.1 To bid at an RMS auction, a Bidder must be at least 21 years of age.
7.2 At auction, there is no “cooling-off” period. If you are awarded the final bid, the purchase contract is concluded with you upon awarding the bid, and you are responsible for payment in full. No Bidder may retract a bid made during the auction for any reason.
7.3 RMS reserves the right to reject bids based on special factual reasons. The highest bidder as determined by the auctioneer will be the Buyer (see clause 12, Awarding, Payment, Purchase, and Collection).
7.4 The auctioneer has sole, reasonable discretion in the case of error or dispute with respect to bidding and, 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 motor car or any other lot in dispute. If any dispute arises after the sale, RMS’ sale record is conclusive.
7.5 At RMS’ discretion, RMS will execute orders or 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, however, responsible for any errors or omissions by clients in connection therewith. Prospective Bidders should also consult rmsothebys.com for the most up-to-date cataloguing of motor cars or any other lots.
7.6 The Bidder ensures 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 pertinent antitrust law.
7.7 As security for a bid, RMS may require necessary financial references, guarantees, deposits, and/or such other securities of reasonable scope at their absolute discretion. Bidders are reminded that RMS cannot obtain financial references over weekends or on public holidays.
8. Purchase Price. The Purchase Price shall consist of the following:
8.1 The Hammer Price of the motor car or any other lot and
8.2 The respective Buyers’ Premium as set out in clause 9.
(clauses 8 to 8.2 together “Purchase Price”)
9. Buyers’ Premium.
9.1 In addition to the Hammer Price, the winning Bidder is required to pay RMS a percentage of the Hammer Price, which RMS retains as the Buyers’ Premium for the purchase of each motor car or any other lot (“Buyers’ Premium”).
9.2 The following Buyers’ Premiums are payable:
9.2.1 In the event of a final Hammer Price of €200,000 or below on all motor car lots, RMS will receive a Buyers’ Premium of 15% (plus VAT on the Buyer’s Premium).
9.2.2 In the event of a final Hammer Price above €200,000 on all motor car lots, RMS will receive a Buyers’ Premium of 15% (plus VAT on the Buyers’ Premium) on the first €200,000 and will receive a Buyers’ Premium of 12.5% (plus VAT on the Buyers’ Premium) on the Hammer Price above €200,000.
9.2.3 Buyers of all non-motor car lots, including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, and clothing, are required to pay RMS a Buyers’ Premium of 20% (plus VAT on the Buyers’ Premium) on the Hammer Price of those particular lots.
9.3 For those Bidders utilizing the Live Auctioneers online service for any RMS auction, in addition to the applicable Buyers’ Premium, an additional 2% of the Hammer Price will be charged to the Buyer of a motor car lot, and an additional 3% of the Hammer Price will be charged to the Buyer of a non-motor car lot, including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, and clothing.
10. Tax.
10.1 The Buyer is responsible to pay all city, state, federal, provincial, territorial, and any and all other taxes due for which the Buyer does not qualify as exempt, subject to RMS verification; proof of exemption is the Buyer’s responsibility. The Buyer is responsible for any applicable duty, import tariffs, charges, or any and all other required payments that are due upon the import of the motor car or any other lot to its final destination.
10.2 Although not an exhaustive list, please be aware of the following: For auctions in the EU, according to the EU VAT Directive, motor cars that have been in use for no more than 6 months or that have been driven for no more than 6,000 kilometers are considered new means of transport and will be subject to VAT. Payment of VAT is the responsibility of the Buyer. Where applicable, RMS may take a deposit from the Buyer equal to the amount of VAT due, which will be refunded upon receiving satisfactory evidence that the motor car has been transported to and registered in another EU country.
11. No Legal or Tax Advice.
11.1 The Bidder shall be solely responsible for their conduct and, in particular, has the option to obtain legal or tax-related counsel. 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 Bidder or for the Bidder’s benefit in connection with any of the transactions in accordance with these Conditions. It is the Bidder’s responsibility to comply with all legal and fiscal obligations that are applicable to them and associated with the purchase of a motor car or any other lot at an RMS auction.
11.2 In order to assist Bidders with this process, RMS may provide information about the tax status of each motor car or any other lot, as well as any ownership or registration papers that will be supplied with the respective motor car or any other lot (“Tax and Ownership Information”); however, this information is being provided merely to assist Bidders in their determination of their own tax and regulatory responsibilities and RMS makes no warranty regarding the accuracy of the Tax and Ownership Information provided by third parties.
12. Awarding, Payment, Purchase, and Collection.
12.1 The contract between Consignor and Bidder is concluded with the fall of the auctioneer’s hammer or equivalent device or mechanism (“Awarding”). A bid is accepted if no higher bid is submitted after a bid was called out three times. Acceptance of the bid obliges the Bidder to accept the bid and to pay the corresponding price (“Hammer Price”). Payment of the Hammer Price is due in full by no later than 5:00 p.m. of the next business day (“Payment Deadline”), and payment is to be made to RMS.
12.2 Payments shall be effected by bank transfer unless other arrangements have been made in advance.
12.3 RMS is not obligated to release the motor car or any other lot to the winning Bidder until the winning Bidder has met all of the Contractual Obligations and paid the Purchase Price plus applicable taxes. Ownership will only be transferred to the successful Bidder after payment of the Purchase Price is received in full.
12.4 The successful Bidder shall, as soon as the bid is awarded, bear any risk for loss of or damage to the motor car or any other lot, if the business transaction was concluded in the auction room, if the motor car or other lot was present in the auction room, and if the Bidder obtains direct co-ownership of the motor car or other lot as soon as the bid is awarded. Furthermore, Bidder shall, as soon as the bid was awarded, bear any risk for loss of or damage to the motor car or the other lot if the motor car or other lot is stored and if benefits under insurance policies that RMS has concluded are transferred to the Bidder. Insofar as the conditions of neither sentence 1 nor sentence 2 are met, the successful Bidder shall bear upon purchase any and all risks in connection with loss or damage and shall meet the costs for the insurance.
12.5 Collection of the motor car or the other lot shall be governed by clause 23, Collection of Purchased Motor Car or Any Other Lot.
13. Non-Payment. In the event that the winning Bidder does not pay any portion of the Purchase Price and applicable taxes by the Payment Deadline, the Bidder agrees to and acknowledges that RMS has the sole discretion to do any one or any combination of the following:
13.1 Cancel/rescind the sale of a motor car or any other lot. If the sale is cancelled/rescinded due to non-payment, RMS will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission.
13.2 Assume the rights of the Consignor to pursue the Buyer for any amounts paid to the Consignor, whether at law, in equity, or under these Conditions of Business.
13.3 Deduct the Purchase Price plus applicable taxes from the Bidder’s cash deposit and/or charge the Purchase Price and applicable taxes 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 plus applicable taxes, in addition to other remedies available by law, RMS reserves the right to impose, from the Payment Deadline until the full Purchase Price plus applicable taxes has been made by the Buyer, a late charge of (1) the 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 plus applicable taxes has been made by the Buyer on the:
13.3.1 Purchase Price and applicable taxes;
13.3.2 Applicable expenses;
13.3.3 Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
13.3.4 Other damages reasonably related to the Bidder’s non-payment.
14. Reserves. Motor cars or any other lots not marked as “no reserve” (or similar) are subject to a reserve bid set by the Consignor. When a motor car or any other lot is sold subject to such a reserve bid, the auctioneer may bid on the Consignor’s behalf if such bid is agreed in writing with the Consignor, in an amount not to exceed the amount of the reserve bid.
15. 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, however subject to clauses 4.2 through 4.6. By submitting one or more bids, the Bidder has entered into a binding contract to purchase each motor car or any other lot if the Bidder’s bid is successful. If the Bidder’s bid is successful, the Bidder is to pay the Purchase Price plus applicable taxes, including the Buyers’ Premium and sales tax, if not otherwise exempt. It is the Bidder’s responsibility to provide proof of exemption from sales tax.
16. Cancellation/Rescission of Auction. RMS will use reasonable efforts to avoid cancellation/rescission of an auction; 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, without prejudice to clause 4, in case of force majeure or other unforeseen events that RMS was unable to prevent despite exercising due diligence as appropriate for the circumstances, especially:
16.1 Any natural disaster that, despite reasonable efforts, restricts RMS from holding the auction;
16.2 Structural damage to the auction venue prior to the auction, caused by unforeseen external influences, that, despite reasonable efforts, restricts RMS from holding the auction;
16.3 Any terrorist event that, despite reasonable efforts, restricts RMS from holding the auction; and/or
16.4 Government/court actions, orders, injunctions, regulations, or laws that necessitate a cancellation of the auction.
17. Cancellation/Rescission of the Sale of a Motor Car or Any Other Lot. RMS will use reasonable efforts to avoid cancellation/rescission of a sale of a 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, and RMS will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission, without prejudice to clause 4, if RMS believes the following events have occurred or have a reasonable probability of occurring:
17.1 The motor car or any other lot has been intentionally and materially misrepresented by the Consignor;
17.2 Physical damage to the motor car or any other lot, which cannot be sufficiently repaired prior to the auction, occurred after these Conditions were signed;
17.3 A third party asserts rights in relation to the motor car or any other lot, especially in regard to ownership thereof;
17.4 RMS faces significant reputational damage that would cause monetary damages from the sale of the motor car or any other lot;
17.5 Material issues regarding title, registration, or transfer of ownership that cannot be reasonably cured; or
17.6 Material issues regarding the provenance, merchantability, or authenticity of the motor car or any other lot that cannot be reasonably cured;
17.7 Government/court actions, orders, injunctions, regulations or laws that necessitate a cancellation of the sale of the motor car or any other lot; or
17.8 If there are legitimate claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a motor car or any other lot not being authentic, being misrepresented, having an encumbered title or registration, having undisclosed material issue, or having a similar claim; in such cases, RMS has the right to retain the Buyer’s funds on account and be the arbitrator as to the merit of the Buyer’s claims and to cancel the sale of the motor car or any other lot and reimburse the payment to the Buyer if RMS deems the Buyer’s claims to be valid.
18. Online Services Are “As Is” and “As Available”.
18.1 Bidders may be able to bid via websites, telephone services, applications, and tools (collectively “Services”).
18.2 RMS strives to keep the Services safe, secure, and functioning properly, but RMS cannot guarantee the continuous operation of or access to the Services. Bid updates and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RMS’ control. In particular, no liability can be assumed for establishing and maintaining the connection.
18.3 Bidders agree that they are making use of the Services at their own risk, and that they are being provided to Bidders on an “AS IS” and “AS AVAILABLE” basis. Without prejudice to clause 18.4, RMS excludes all expressed or implied warranties, terms, and conditions, including but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
18.4 The limitations of liability as set out in clauses 4.2 to 4.6 expressly apply.
19. Currency Display. RMS may use a non-binding currency display in the salesroom for informational purposes only. The currencies listed on the currency converter are not real-time conversions pegged to market rates and are not to be relied on by anyone. Errors and inaccuracies may occur in the operation of the currency converter. The bid price stated by the auctioneer is the prevailing and binding bid price.
20. Bank Letter. RMS requires all Bidders to provide a Bank Letter to register for participation in an RMS auction (“Bank Letter”). This is always a bank guarantee and/or, depending on the circumstances, an alternative confirmation by a bank. All Bank Letters must be written on bank letterhead. RMS may waive this requirement at its sole discretion.
21. Credit Card Hold and Pre-Authorization.
21.1 RMS requires a hold and pre-authorization to be placed on the Bidder’s credit card in the amount of €2,000 (“CC Hold”).
21.2 If the Bidder fails to pay for a motor car or any other lot purchased 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; the Bidder is still bound to pay their remaining balance.
21.3 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.
21.4 If the Bidder does not purchase a motor car or any other lot, their credit card will not be charged. If their credit card is not charged, the reservation on their credit card shall lapse within 10 business days, depending on their credit card company.
21.5 RMS shall have the right to waive the CC Hold requirement at its sole discretion.
22. Transfer of Title. For RMS auctions in Europe and London, United Kingdom, RMS shall use its best efforts to ensure that all ownership titles are free from rights of lien or any other encumbrances. Where possible, RMS will assist the Buyer in the new registration of ownership rights on the Buyer’s behalf. RMS is not, however, responsible for the success of such efforts, in particular due to different regional legal regulations and guidelines.
23. Collection of Purchased Motor Cars or Any Other Lots.
23.1 All purchased motor cars, including motorcycles, boats, and trailers, must be removed by the Buyer from the auction site by 5:00 p.m. of the next business day in the applicable time zone where the auction is held (“Removal Deadline”).
23.2 Following the auction, all lots will be removed from the auction site and taken to a secure storage facility. The Buyer will be charged a removal fee of €350 plus VAT per motor car and a daily storage fee of €20 plus VAT per motor car (storage fees will commence on Monday 30 March 2020) until full payment and instructions for transport has been received. Please note it is the Buyer’s responsibility to insure their lots whilst in storage.
23.3 If the purchased motor car or any other lot is temporarily imported into Germany, then the motor car or any other lot will be removed to a separate bonded warehouse operated by GPS Global. The Buyer will be charged a reasonable removal fee plus VAT per motor car and a daily storage fee plus VAT per motor car. The Buyer will be responsible for these charges until full payment has been received and instructions for transport arranged. Please note it is the Buyer’s responsibility to insure their lots whilst in storage.
23.4 Regarding the collection of any non-motor car lots, including but not limited to memorabilia, jewelry, and clothing, from the auction site, once the Buyer has made payment by the Payment Deadline, a direct shipping company will contact the Buyer. A reasonable memorabilia removal and storage fee will apply.
23.5 The Buyer is required to insure their motor car or any other lot in appropriate form while the motor car or any other lot is being stored.
24. Applicable Law.
24.1 The contractual relationship between the parties, including these Conditions, shall be subject to the laws of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
24.2 The place of jurisdiction for all disputes under and/or in connection with the contractual relationship including these Bidders’ Conditions of Business, and regarding actions concerning bills of exchange and checks, shall be Munich, Germany, provided that the Bidder or the Buyer is a businessman in terms of the German Commercial Code, a legal person under public law, or a special estate under public law. RMS shall, however, remain entitled in all cases to bring action in the jurisdiction of delivery or in the general jurisdiction of the Bidder or Buyer. Prevailing legal provisions, especially regarding exclusive jurisdiction, shall remain unaffected.
25. Packaging and Shipping. RMS shall only provide the purchased motor car or other lot for collection. The Buyer shall themselves be responsible for transport. If RMS does accept responsibility for any actions or non-actions regarding packaging and shipping, such liability shall be governed by clause 4.2 to 4.6 inclusively of these Bidders’ Conditions of Business.
26. Privacy Policy. RMS shall use personal Bidder data in accordance with pertinent law and RMS’ Privacy Policy. The full Privacy Policy can be found at the bottom of the RMS website under the Privacy & Terms tab (www.https://rmsothebys.com/en/home/privacy-terms/). You may also send RMS an email to privacy@rmsothebys.com.
27. Anti-Money Laundering. The Bidder agrees to provide all information and assistance reasonably requested by RMS in accordance with pertinent law in regard to RMS’ regulations on anti-money laundering, as well as any and all applicable anti-money laundering laws and regulations.
28. Preliminary Importation in Bond.
28.1 A temporary importation in bond can be effected in all EU sales if a motor car or any other lot is brought into the EU from a country outside the EU. Such motor car or any other lot must be placed in bond by RMS in the United Kingdom or one of RMS’ nominated customs agencies for France, Monaco, Italy, or Germany. Fees and charges vary from sale to sale, and for some countries, this is also determined by the value of the motor car or any other lot.
28.2 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, which RMS will provide the details of as and when necessary.
28.3 Should the Buyer decide for the motor car or any other lots to remain in the EU when purchased, the Buyer is responsible to pay any and all import fees for the motor car or any other lots.
29. Final Provisions.
29.1 The legal relationship between the parties shall be solely governed by the Contractual Obligations. These include all agreements between the parties to their full extent. Any other oral or written agreements or conditions agreed by the parties at a previous point, or any other correspondence and suggestions, shall be superseded by these Contractual Obligations, unless their continued binding validity is expressly stated.
29.2 Amendments and supplements to the Contractual Obligations, including this clause, shall be made in writing or they shall not be valid. The same shall apply to ancillary and additional agreements.
29.3 If one of the provisions of the Contractual Obligations is or becomes void, either in part or in full, the invalidity of this provision shall not affect the validity of all the remaining provisions of the Contractual Obligations. The void provision shall be replaced by that provision that comes as close as possible to the intent of the void provision from an economic point of view without being invalid.
30. Translations.
30.1 If there is a discrepancy, contradiction, or question of interpretation regarding enforceability between the English version of the Bidders’ Conditions of Business and a version of the Bidders’ Conditions of Business produced in a language other than English, the English version of RM’s Bidders’ Conditions of Business will supersede.
30.2 If there is a discrepancy, contradiction, or question of interpretation in a catalogue description for a motor car or any other lot, in print, online, or otherwise between the English version of the catalogue description and a version of the catalogue description produced in a language other than English, the English version will supersede.
