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 RM Licenses LLC or any affiliated, executors, beneficiaries, successors, assigns, or designated companies d.b.a. RM Sotheby’s auction (“RMS”).
1.2. Each bidder in the auction (the “Bidder”) is responsible to understand, review, and agree to these Conditions of Business. 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. Bidders are encouraged to contact RMS’ Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Conditions of Business.
1.3. Both RMS’ and the relevant consignor of the Lot(s) (the “Consignor”) contractual relationship with Bidders are governed by:
1.3.1. These Conditions of Business;
1.3.2. The Conditions of Business displayed on RMS’ website;
1.3.3. The Conditions of Business announced and displayed in the auction salesroom;
1.3.4. 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
1.3.5. In each case as amended by any notice, auctioneer’s announcement, or website update.
(Clauses 1.3. to 1.3.5 collectively, the “Contractual Obligations”)
1.4. As auctioneer, RMS acts as the agent for the Consignor of the Lot(s), and if a Consignor’s Lot(s) is sold at auction, a bill of sale is made directly between RMS as agent for the Consignor and the winning Bidder (the “Buyer”).
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 the RMS auction (“Bidder Due Diligence”).
3. All Sales Are “As Is” and “Where Is.” In addition to the due diligence responsibilities outlined in clause 2 (Bidder Due Diligence Responsibilities) of these Conditions of Business, no warranties or representations of any type whatsoever are made by RMS or the Consignor to the Bidder regarding any Lot(s) offered in the 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 the Consignor, auctioneers, or auction staff, are based on statements and historical files, if any, collected from the Consignor and other third-party sources, and neither RMS nor the Consignor have an 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 CONSIGNOR 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 at the auction, Bidders must pay a registration fee of:
5.1.1. $400.00 USD if bidding on both motor car Lot(s) AND non-motor car Lot(s) including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines; and
5.1.2. $200.00 USD if bidding only on non-motor car Lot(s) including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines.
(Clause 5.1 to 5.1.2. collectively, the “Bidder Registration Fees”)
5.2. Please note that 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 changes hands at the drop of the auctioneer’s hammer (or equivalent device or mechanism) or the close of the Lot (“Close of Lot”) provided and contingent upon, that the terms of these Conditions of Business have been met including, complete payment of the Purchase Price as outlined in clause 13 (Payment) of these Conditions of Business; regardless of the transfer of ownership, the Bidder is still bound by the terms and conditions of these Conditions of Business. At the Close of the Lot, you are now the legal owner of the applicable Lot(s) and are responsible for payment in full.
6.8. The Bidder 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; neither RMS nor the Consignor are 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. Purchase Price.
7.1. The purchase price shall consist of the following:
7.1.1. the Hammer Price (defined below) of the Lot(s);
7.1.2. the applicable Buyer’s Premium (defined below); and
7.1.3. any applicable Expenses and Fees (defined below).
(Clauses 7 to 7.1.3. together are “Purchase Price”)
8. Buyer’s Premium.
8.1. 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”):
8.1.1. 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%.
8.1.2. 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.
8.1.3. 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).
8.2. For those Bidders utilizing the online service Live Auctioneers for the RMS auction, in addition to the applicable Buyer’s Premium, an additional 6% of the Hammer Price will be charged to the Buyer of a motor car Lot(s), and an additional 7% of the Hammer Price will be charged to the Buyer of a non-motor car Lot(s), including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines.
9. 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.
10. No Legal or Tax Advice.
10.1. 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 both the Consignor and RMS harmless from any and all tax or regulatory issues that arise due to Tax and Ownership Information (defined below) that either RMS and/or the Consignor provides.
10.2. 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.
11. 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).
12. Credit Card Hold and Pre-authorization.
12.1. Please note that in order to register to bid at the auction, RMS requires a hold and pre-authorization as outlined in clause 12.2 below to be placed on the Bidder’s credit card from the date of registration until the close of the auction (“CC Hold”). 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 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.
12.2. A CC Hold as outlined below will be placed on the Bidder’s credit card:
12.2.1. If bidding on both motor car Lot(s) AND non-motor car Lot(s) including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines, a $5,000.00 USD CC Hold; and
12.2.2. If bidding only on non-motor car Lot(s) including, but not limited to, memorabilia, motorcycles, boats, trailers, jewelry, clothing, and automobile parts, accessories, tools, and/or engines, a $2,000.00 USD CC Hold.
13. Payment.
13.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the bill of sale between RMS as agent for the Consignor and the Bidder is concluded and irrevocable.
13.2. The value of the last accepted bid upon the Close of Lot is the Hammer Price (“Hammer Price”).
13.3. Payment is due in full on or before 5:00 p.m. EST / EDT of the next business day (“Payment Deadline”), and payment is to be made to RMS.
13.4. The auction will be conducted in United States Dollars ($) and all payments are required to be made in United States Dollars. Further, all payments must be in the form of either cash, certified funds, or cryptocurrency as approved by BitPay (as outlined in clause 6.1.1 of these Conditions of Business) unless other arrangements have been approved in advance. Cash payments will be reported according to U.S. federal government requirements.
13.5. For any purchases under $5,000.00 USD, the Buyer acknowledges and agrees that his/her credit card against which the CC Hold 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.
13.6. For final purchases exceeding $5,000.00 USD, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
13.7. 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, neither RMS nor the Consignor will 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 BOTH RMS AND THE CONSIGNOR AND THEIR RESPECTIVE 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’ AND/OR THE CONSIGNOR’S ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 14.1.
15. Absentee and Telephone Bidding. Absentee and telephone bidding are services provided by RMS for the Bidder’s benefit and, neither RMS nor the Consignor can 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.
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 neither RMS nor the Consignor will 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:
16.1.1. Force Majeure events including but not limited to:
16.1.1.1. Any natural disaster which, 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 which, despite reasonable efforts, restricts RMS from holding the auction in its contemplated form; and
16.1.1.3. 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.
16.1.2. 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.
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 neither RMS nor the Consignor will 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:
17.1.1. RMS opines that the Lot(s) has been intentionally and 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 of Business were formed;
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 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 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.
18. Online Services Are “As Available” and “As Is.”
18.1. Bidders may be able to bid via websites, telephone services, applications, RMS’ online platform, and tools (collectively “Services”).
18.2. 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.
18.3. 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, both RMS and the Consignor exclude 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.
19. Title Transfer.
19.1. 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).
19.1.1. 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.
19.1.2. 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 both RMS and the Consignor harmless from any allegations of damages arising out of government delays.
19.2. 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.
20. Removal of Purchased Lot(s).
20.1. All purchased Lot(s) must be removed by the Buyer from the auction site by end of day Friday, 4 November 2022 unless, otherwise agreed to by RMS and the Consignor (“RMS Removal Deadline”).
20.2. If a Lot(s) is not removed by the RMS Removal Deadline (and alternative arrangements have not been agreed upon by RMS and the Consignor), the Buyer will be charged a removal fee of up to $600.00 USD and a daily storage fee of up to $30.00 USD until the Lot(s) is removed which, will be made payable to the Consignor.
20.3. Please note that:
20.3.1. The Buyer is required to insure their Lot(s) while the Lot(s) is being stored on their behalf; and
20.3.2. If the Lot(s) is not removed from the storage facility within 6 months 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.
20.3.2.1. If the Lot(s) is not removed from the storage facility by the RMS Removal Deadline due to a force majeure event and, other arrangements have not been made, the Buyer will have up to 6 months from the RMS Removal Deadline (unless other arrangements have not been made) before 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.
21. Legal Action.
21.1. These Conditions of Business shall be interpreted in accordance with the laws of the State of Illinois, 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 Chicago, Illinois 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.
21.2. 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:
21.2.1. to waive any and all claims to punitive, consequential, or special damages;
21.2.2. 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 8 of these Conditions of Business had the Lot(s) (a) met their published low estimate; or (b) if no published low estimate, then the Lot’s fair market value as determined by RMS; and
21.2.3. that the maximum liability of the Consignor arising out of or related to these Conditions of Business or any claim or dispute between the Consignor and the Buyer regarding the Lot(s) or the auction shall be the Hammer Price paid for the Lot(s).
22. Packing and Shipping. Neither RMS nor the Consignor are 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 and/or the Consignor. Packing and handling of purchased Lot(s) are at the entire risk of the Buyer.
23. 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.
24. 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.
25. Entire Agreement. This document shall be binding upon the parties and their respective heirs, personal representatives, and assigns. The Buyer agrees that the Consignor is a third-party beneficiary of the terms and conditions herein. 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.
26. Translations.
26.1. 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.
26.2. 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.
27. COVID-19 Assumption of Risk and Waiver of Liability. If attending the auction in person, the Bidder agrees to the following:
27.1. 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.
27.2. 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.
27.3. 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.
27.4. 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.
27.5. 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.
27.6. Information provided during bidder registration may be used in accordance with governmental COVID-19 rules and regulations and in accordance with RMS’ Privacy Policy.
28. 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 28 shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
28.1. 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”).
28.2. 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.
28.3. 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.
28.4. 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 neither RMS nor the Consignor will be held responsible for any errors or omissions in connection with the calling/displaying/accepting of bids.
________________________________
Date
________________________________
Signature of Bidder
