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 the last Lamborghini Aventador Coupé (the “Car”) being manufactured and associated non-fungible token (“NFT”) (Car and NFT will be offered together as one lot, the “Lot”) at an RM Auctions, Inc. d.b.a. RM Sotheby’s and any affiliated, executors, beneficiaries, successors, assigns, or designated companies (“RMS”) auction utilizing the RMS online platform (the “LAMBORGHINI ULTIMATE Auction”). RMS’ and the Consignor’s relationship with the Bidders (as that term is defined in clause 1.2, below) and Buyer (as that term is defined in clause 1.4, below) of the Lot are governed by these Conditions of Business and the express representations and warranties and indemnity given by RMS and/or the Consignor (as that term is defined in clause 1.4), may differ from any published Conditions of Business for Sellers.
1.1.1. For the avoidance of doubt, all references to NFT contained in these Conditions of Business including, but not limited to, reference of custody of the NFT, refer only to a token managed in a digital wallet, not any Referenced Content (as that term is defined in clause 5.4, below) to which the NFT relates and which was created by or at the direction of third-party artists identified in the catalogue entry for the Lot (the “Artists”). RMS, Consignor, Artists, and Lamborghini shall be collectively referred to as the “Released Parties.”
1.2. Each bidder in the LAMBORGHINI ULTIMATE 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 LAMBORGHINI ULTIMATE Auction. Please note that, these Conditions of Business are subject to change from time to time and will be posted on RMS’ website 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. RMS’ contractual relationship with the Bidders is governed by:
1.3.1. These Conditions of Business;
1.3.2. The Conditions of Business displayed on RMS’ website;
1.3.3. 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
1.3.4. In each case as amended by any notice, auctioneer’s announcement, or website update.
(Clauses 1.3. to 1.3.4. collectively, the “Contractual Obligations”)
1.4. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot (the “Consignor”), and if the Consignor’s Lot is sold at the LAMBORGHINI ULTIMATE Auction, a sales contract is made directly between 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, (i) 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 the Lot offered at the LAMBORGHINI ULTIMATE Auction and (ii) appropriate maintenance responsibilities (including hosting) and security specifically relating to the NFT and Referenced Content (defined below) (such diligence efforts contemplated by this clause, collectively, the “Bidder Due Diligence”).
3. Sale is “As Is” and “Where Is.”
3.1. Regarding the Car specifically:
3.1.1. No warranties or representations of any type whatsoever are made by RMS or the Released Parties to the Bidder regarding the Car offered in the LAMBORGHINI ULTIMATE Auction. Without limiting the foregoing, Car descriptions, statements in 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 RMS has no obligation to verify or authenticate any such statements. The Car is sold as is, where is, with no representations or warranties, expressed or implied. THE RELEASED PARTIES 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 THE CAR OR COMPONENT OF THE CAR, AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
3.2. Regarding the NFT specifically:
3.2.1. The NFT offered by RMS is sold “as is,” and neither RMS nor the Released Parties make any representations or warranties of merchantability, fitness for a particular purpose, correctness of the catalogue or other images, or descriptions of the quality, rarity, importance or historical relevance of the NFT. Additionally, neither RMS nor the Released Parties represent that the NFT does not contain viruses or malware or, that it will function as any Bidder and/or Buyer expects nor, without error or mistake. RMS expressly advises prospective Bidders that it is the Buyer’s sole responsibility to conduct pre-bidding diligence into and, that Buyer assumes all risk of loss or damage to the NFT upon transfer of the same to the Buyer including, and without limitation to, responsibility to provide appropriate maintenance (including without limitation hosting) and security relating to, the NFT and Referenced Content.
3.2.2. Buyer further acknowledges that Buyer is solely responsible for any risks associated with the transferring, creating, holding, storing, or use of NFTs or a digital wallet, as applicable, including network failures or disruptions; corrupted wallet files; viruses, phishing, bruteforcing, hacking, security breaches, mining attacks, or other means of attack against the NFT; risk of losing access to the NFT due to loss of private key(s); custodial or buyer error; regulatory interference in one or more jurisdictions; token taxation; personal information disclosure; uninsured losses; failure to provide appropriate maintenance (including without limitation hosting of Referenced Content); and other unanticipated risks. The Released Parties will not be responsible for any such risks or losses. Once risk passes to the Buyer, the Buyer irrevocably releases the Released Parties and their affiliates from any and all claims, causes of action, liabilities, damages, losses, and expenses (including but not limited to reasonable attorneys’ fees) for loss of or damage to the NFT.
3.2.3. Regarding experiential activities: Buyer will receive certain experiential activities in connection with Buyer’s purchase of the Lot, as further explained on the Lot’s listing (the “Experiential Activities”). For the avoidance of doubt, the Experiential Activities are not included as a part of the NFT, and any subsequent purchasers to whom Buyer sells the NFT (if any) will not receive the Experiential Activities, which will solely be available to Buyer.
3.2.3.1. No warranties or representations of any type whatsoever are made by RMS or the Released Parties to the Bidder regarding the Experiential Activities. RMS and the Released Parties are not responsible for providing any benefits other than those explicitly specified with respect to the Experiential Activities, including without limitation travel, airfare, lodging, or expenses in connection with the use by Buyer of the Experiential Activities. Buyer acknowledges and agrees that they may need, and will be solely responsible for obtaining, travel documentation to the extent that the Experiential Activities are offered in a country other than the one where Buyer resides. The Experiential Activities are sold as is, where is, with no representations or warranties, expressed or implied. Buyer agrees to release and hold harmless RMS and the Released Parties from any and all claims, liabilities, damages, or costs arising as a result of the Buyer’s travel to, participation in, and/or attendance at the Experiential Activities, including without due to property damages, death, or personal injury. Buyer acknowledges and agrees that the Experiential Activities may be rescheduled at the sole discretion of the Released Parties, and agrees that the Released Parties will have no liability to Buyer as a result of such Rescheduling. The Released Parties shall not be liable to Buyer in the event that any Experiential Activities cannot be conducted due to a Force Majeure event, as further set forth in clause 17.
4. Bidding at the LAMBORGHINI ULTIMATE Auction.
4.1. All bids will be placed in USD ($).
4.2. Bidding on the Lot at the LAMBORGHINI ULTIMATE Auction will open to registered Bidders on Tuesday, 19 April 2022 at 12:00 EDT and is expected to close on Thursday, 21 April 2022 at 12:00 EDT.
4.3. To bid at the LAMBORGHINI ULTIMATE Auction, a Bidder must satisfy any and all of the 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; (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; and (vi) not being subject to any bans or international sanctions or, the Bidder’s country being subject to a ban or sanction (together “Bidder Registration Requirements”).
4.4. 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 LAMBORGHINI ULTIMATE Auction specifically prior to being accepted to bid.
4.5. 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 LAMBORGHINI ULTIMATE Auction.
4.6. Once you have satisfied the Bidder Registration Requirements, you will be able to place bids against the Lot at the LAMBORGHINI ULTIMATE Auction. To place a bid, the Bidder must follow the instructions and processes on the LAMBORGHINI ULTIMATE Auction platform.
4.7. Once made, no Bidder may retract a bid made during the LAMBORGHINI ULTIMATE Auction for any reason.
4.8. If a bid placed by another bidder exceeds your bid, you will be notified via the email address you provided during registration, and the webpage of the Lot will indicate you have been outbid.
4.9. If a bid is placed within the final two minutes of the bid acceptance period for the Lot, the LAMBORGHINI ULTIMATE Auction period for the Lot will be extended by an additional two minutes to prevent a Bidder from trying to place a high bid in the final moments of the LAMBORGHINI ULTIMATE Auction for the Lot.
4.10. There is no “cooling-off period”, cancellation, or rescission of bids.
4.11. If at the end of the LAMBORGHINI ULTIMATE Auction, you are awarded the final bid on the Lot ("Close of Lot”), (i) you are responsible for payment in full; and (ii) subject to fulfillment of the Contractual Obligations, the contract between you and the Consignor is concluded and irrevocable.
4.11.1. To clarify, the term “Close of Lot” shall be defined as the time that the time-based auction expires.
4.12. The value of the last accepted bid upon the Close of Lot is the Hammer Price (“Hammer Price”).
4.13. RMS is not obligated to release the Lot to the winning Bidder until the Buyer has met all of the Contractual Obligations and paid the Purchase Price (defined below).
4.14. 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 in dispute. If any dispute arises after the sale, RMS’ sale record is conclusive. RMS is not responsible for any errors or omissions in connection with the calling, displaying, accepting, or rejecting of bids.
4.15. By participating in the LAMBORGHINI ULTIMATE 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.
4.16. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
5. Ownership and Possession of Lot.
5.1. Legal and beneficial title in and to the Lot shall remain solely in and with the Consignor, Lamborghini, and/or the Artists until payment is made to RMS in accordance with clause 14 (Payment) of these Conditions of Business.
5.2. Regarding the Car specifically:
5.2.1. The Car will be built after the LAMBORGHINI ULTIMATE Auction in accordance with the homologation specifications (as further outlined in clause 6 (Car’s Homologation)) provided to RMS and as such, will be delivered to the Buyer at a later date.
5.2.2. The Consignor or Lamborghini will retain possession of and/or rights to the Car while it is offered in the LAMBORGHINI ULTIMATE Auction.
5.2.3. Either the Consignor or Lamborghini will deliver the Car to the Buyer within a reasonable period of time after production of the Car which, is currently estimated to be completed by September 2022 (provided that neither such party shall be liable if the product of the Car is delayed past that time).
5.2.3.1. The Buyer will INDEMNIFY, DEFEND (WITH THE RELEASED PARTIES’ SOLE CHOICE OF COUNSEL), AND HOLD THE RELEASED PARTIES, AND EACH OF THEIR 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 TIMINING AND DELIVERY OF THE CAR.
5.2.3.2. Due to recent European sanctions, the Car cannot be delivered to Russia.
5.2.3.3. Lamborghini will pay any expenses associated with transporting the Car to the Buyer and homologation. Please note that it is Buyer’s responsibility as per clause 7, 10 and 11 to pay any importation costs, taxes, and secure their own independent legal and tax advice.
5.2.4. Upon the final production of the Car, RMS will provide the Buyer with copies of the documents that will be used by Lamborghini to transfer ownership of the Car. To clarify, RMS is not responsible for the transfer of ownership or title of the Car to the Buyer.
5.3. Regarding the NFT specifically:
5.3.1. RMS will custody the NFT while it is offered in the LAMBORGHINI ULTIMATE Auction and, upon the final production of the Car, RMS will transfer the NFT to the Buyer. Please note, neither RMS nor the Consignor will insure the NFT.
5.3.2. In order to receive an NFT, you must have a digital wallet that is capable of supporting and accepting the NFT, and which you, or the company you have registered as, own, and to which you have access. You understand and acknowledge that not all digital wallets can support storage of a non-fungible token, and that if your wallet does not support storage of the NFT purchased by you, you may lose access to that NFT. RMS will transfer the NFT to the wallet address specified by you and are not responsible for confirming that you have supplied us with the correct or a valid address, and the Released Parties are not responsible if the transfer of the NFT to your wallet fails unless such failure is the result of us sending the NFT to a wallet address other than the one provided by you. You understand and acknowledge that if you fail to provide us with an address for a digital wallet that is capable of supporting and accepting the NFT within five (5) business days of the conclusion of the auction or sale, we may, in our sole discretion, treat the NFT as transferred to you, treat the Lot as a Lot for which you have failed to pay in full, and hold you responsible for all resulting third-party fees (including, without limitation, custodial fees, insurance, network fees, taxes, transfer fees, etc.).
5.3.3. The smart contract associated with the NFT will reflect a secondary sales percentage of ten (10) percent (the “Secondary Sales Percentage”), which will be automatically deducted from any sale by Buyer of the NFT as well as any subsequent sales by future buyers, and will be paid into a cryptocurrency wallet under control of Consignor and/or Artists. You agree not to attempt to manipulate, interfere with, or otherwise circumvent the payment of the Secondary Sales Percentage.
5.4. Prior to and during the LAMBORGHINI ULTIMATE AUCTION, the visual artwork associated with the NFT (the “Referenced Content”) is hosted or stored by or at the discretion of the Artists. To be clear, RMS does not have custody of the Referenced Content.
6. Car’s Homologation.
6.1. The Car may be homologated (approved for use) in the following countries and/or territories: EU, Canada, India, Indonesia, Japan, Macau, Middle East (GCC), New Zealand, Peru, Philippines, Singapore, South Africa, Switzerland, Turkey, UK and USA (collectively, the “Allowable Country(ies) and Territory(ies)”).
6.2. The Buyer will need to inform Lamborghini via RMS which Allowable County and Territory the Buyer will be trying to import the Car to, immediately after the Bid.
6.3. The Car will not be homologated for countries or territories outside of the Allowable Countries and Territories, and there may be restrictions on the import of the Car in territories different from Allowable Countries and Territories. The Buyer will be solely responsible for determining compliance with such restrictions, it being understood that RMS and the Released Parties make no representations or warranties about the ability for the Car to be imported into countries other than the Allowable Countries and Territories.
7. Car’s Importation Costs.
7.1. The Bidder acknowledges that it is their responsibility to understand the importation rules, requirements, licensing, and costs associated with bringing the Car into the country they plan to import the Car to.
7.2. The Bidder will INDEMNIFY, DEFEND (WITH THE RELEASED PARTIES’ SOLE CHOICE OF COUNSEL), AND HOLD THE RELEASED PARTIES AND EACH OF THEIR 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 CAR’S HOMOLOGATION OR IMPORTATION.
8. Purchase Price.
8.1. The purchase price shall consist of the following:
8.1.1. the Hammer Price of the Lot;
8.1.2. the applicable Buyers’ Premium (defined below); and
8.1.3. any applicable Expenses and Fees (defined below).
(Clauses 8.1. to 8.1.3. together are “Purchase Price”)
9. Buyer’s Premium.
9.1. In addition to the Hammer Price, the Buyer is required to pay RMS a Buyer’s Premium of 15% on the first $225,000.00 USD of the Hammer Price plus 12.5% on the Hammer Price above $225,000.00 USD (“Buyer’s Premium”).
9.2. If the final bid does not reach a designated amount, RMS will provide the Consignor with a portion of its realized Buyer’s Premium.
10. Taxes. The Buyer is responsible to pay all applicable taxes, duties, tariffs, and any and all other government mandated costs associated with purchasing the Lot (“taxes”). Further, as mandated in multiple applicable jurisdictions, RMS is required to remit taxes; as applicable, RMS will outline the additional taxes on your invoice.
11. No Legal or Tax Advice.
11.1. These Conditions of Business are an important legal document. The Bidder acknowledges that the Bidder has had the opportunity to consult an attorney before accepting these Conditions of Business and, has entered into this agreement after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in these Conditions of Business or, any contemporaneous written, oral, or implied understandings of the parties relating to the subject matter of these Conditions of Business, RMS has not provided legal or tax advice or tax planning services to the Bidder or for the Bidder’s benefit in connection with the transactions contemplated by these Conditions of Business and, no one at RMS has acted as the Bidder’s attorney or tax advisor. As a condition of bidding at the LAMBORGHINI ULTIMATE 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 the Lot at the LAMBORGHINI ULTIMATE Auction. A further condition of bidding at the LAMBORGHINI ULTIMATE Auction is that the Bidder holds the Released Parties harmless from any and all tax or regulatory issues that arise due to Tax and Ownership Information (defined below) that RMS provides.
11.2. In order to assist Bidders with this process, RMS may provide information about the tax status of the Lot as well as any ownership or registration papers that will be supplied with the 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.
12. Credit Card Hold. Please note that in order to register to bid at the LAMBORGHINI ULTIMATE Auction, RMS requires a hold of up to $5,000.00 USD to be placed on the Bidder’s credit card from the date of registration until the close of the LAMBORGHINI ULTIMATE Auction (“CC Hold”). If the Bidder is not the Buyer of the Lot, the CC Hold will be removed from the credit card in accordance with the Bidder’s specific credit card companies’ procedures. If the Bidder is the Buyer of the Lot, the Bidder will be required to make payment to RMS in accordance with clause 14 (Payment) of these Conditions of Business.
13. Expenses and Fees: Expenses and fees as outlined in these Conditions of Business include, but are not limited, to duty, import, storage, licenses, and taxes (collectively “Expenses and Fees”). The Buyer will be required to pay the applicable Expenses and Fees to RMS in addition to the Hammer Price and applicable Buyer’s Premium in accordance with clause 14 (Payment).
14. Payment.
14.1. Payment of the Purchase Price may be made either via traditional currency or via cryptocurrency in accordance with the clauses below.
14.2. Payment via Traditional Currency:
14.2.1. Payment via traditional currency is due in full on or before 5:00 p.m. EST / EDT of the next business day (“Traditional Currency Payment Deadline”).
14.2.2. If the buyer elects to make payment in traditional currency, payment of the Purchase Price must be in USD ($) and be in the form of wire transfer to RMS.
14.3. Payment via Cryptocurrency:
14.3.1. If the Buyer elects to pay in Bitcoin or Ethereum, RMS will (i) provide the Buyer with its standard invoice documenting all amounts to be collected, (ii) designate the Consignor as the payee, and (iii) provide the Buyer with instructions to pay all amounts owed to the Consignor’s Coinbase wallet.
14.3.1.1. Buyers will only be able to make payment in Bitcoin or Ethereum if, the Buyer has a wallet from one of the following providers that is registered to the Buyer: Coinbase Custody Trust; Coinbase, Inc.; Fidelity Digital Assets Services, LLC; Gemini Trust Company, LLC; Gemini Europe Limited; Gemini Europe Services Limited; Paxos Trust Company, LLC; Digivault Limited; Ziglu Limited; or Archax Ltd.
14.3.2 If the Buyer elects to pay via cryptocurrency, (i) the exchange rate used to pay the Purchase Price will be determined using the USD/ETH hourly quoted Coindesk Ether Price Index (ETX) or Bitcoin Price Index (XBX) at the time of actual payment and (ii) the Buyer will be required to make payment within 24 hours after the conclusion of the LAMBORGHINI ULTIMATE Auction (“Cryptocurrency Payment Deadline”) (Traditional Currency Payment Deadline and Cryptocurrency Payment Deadline collectively, the “Payment Deadline”)
15. Non-Payment.
15.1. In the event that the Buyer does not pay any portion 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:
15.1.1. Cancel/rescind the sale of the 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.
15.1.2. 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.
15.1.3. 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 have 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:
15.1.3.1. Purchase Price;
15.1.3.2. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
15.1.3.3. Other damages reasonably related to the Bidder’s non-payment.
15.1.3.4. 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.
15.2. In the event of a non-payment, the Buyer will INDEMNIFY, DEFEND (WITH THE RELEASED PARTIES’ SOLE CHOICE OF COUNSEL), AND HOLD THE RELEASED PARTIES AND THEIR 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, THE NON-PAYMENT, OR RMS ACTIONS TAKEN IN ACCORDANCE WITH CLAUSE 15.1.
16. Reserves.
16.1. The Lot is subject to a reserve set by the Consignor. As the Lot is sold subject to a reserve, the auctioneer may bid on the Consignor’s behalf up to and including an amount not to exceed the amount of the reserve.
16.2. If RMS contributes to the Hammer Price to meet a reserve, the reserve for the Lot becomes the Hammer Price plus RMS’ contribution for purposes of commissions.
17. Cancellation/Rescission of LAMBORGHINI ULTIMATE Auction.
17.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the LAMBORGHINI ULTIMATE Auction, and neither RMS nor the Released Parties 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. Force Majeure events including but not limited to:
17.1.1.1. Any natural disaster that, despite reasonable efforts, restricts RMS from holding the LAMBORGHINI ULTIMATE Auction; and
17.1.1.2. Any terrorist event, pandemic (including resulting governmental restrictions), 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) that, despite reasonable efforts, restricts RMS from holding the LAMBORGHINI ULTIMATE Auction in its contemplated form.
17.1.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the LAMBORGHINI ULTIMATE Auction that necessitate or make prudent a cancellation.
17.2. Neither RMS nor the Released Parties shall be responsible for any unforeseeable malfunction, third-party custodial error, mining attack, hacking, exploited security weaknesses, blockchain malfunction or other technical error which could not reasonably have been prevented by reasonable diligence, telecommunications failure, use of malicious software, electromagnetic pulse, or other event beyond such parties’ control that results in loss or unavailability of the NFT or Referenced Content, damage or corruption to the NFT or Referenced Content, or inability of the NFT to be transferred to RMS or to the Buyer.
18. Cancellation/Rescission of Lot.
18.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the sale of the Lot and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
18.1.1. RMS opines that the Lot has been intentionally or materially misrepresented by the Consignor;
18.1.2. RMS opines that physical damage to the Lot, which cannot be sufficiently repaired prior to the LAMBORGHINI ULTIMATE Auction, occurred after these Conditions of Business were formed;
18.1.3. RMS is served with a lawsuit or threatened with a dispute from a third party in relation to the Lot;
18.1.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot;
18.1.5. Material issues regarding title, registration, or transfer of ownership that cannot be reasonably cured, or RMS believes would expose it to claims or disputes from a third party;
18.1.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot that cannot be reasonably cured, or RMS believes would expose it to claims or disputes from a third party;
18.1.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot at the LAMBORGHINI ULTIMATE Auction that necessitate a cancellation; or
18.1.8. If there are disputes, claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of the Lot 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 and reimburse the payment to the Buyer if RMS in its sole discretion deems the Buyer’s claims to be valid.
19. LAMBORGHINI ULTIMATE Auction is “As Available” and “As Is.”
19.1. All bids on the Lot will be via RMS’ online only auction platform.
19.2. Although RMS endeavors to keep a safe, secure, and functioning LAMBORGHINI ULTIMATE Auction, RMS cannot guarantee the continuous operation of or access to the LAMBORGHINI ULTIMATE Auction or, a Bidder’s ability to connect and navigate the LAMBORGHINI ULTIMATE Auction. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RMS’ control.
19.3. Bidders agree that they are making use of the LAMBORGHINI ULTIMATE Auction at their own risk and that the LAMBORGHINI ULTIMATE Auction is being provided to Bidders on an “AS AVAILABLE” and “AS IS” basis. Accordingly, to the extent permitted by applicable law, RMS excludes all expressed or implied warranties, terms, and conditions, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
20. Exclusions or Limitations of Liability
20.1. The Released Parties are only selling the ownership rights to the NFT and in no way responsible for any resales or secondary market sales of the NFT or the Referenced Content or any iterations of the same. Any copyright(s) in and to the NFT and Referenced Content, including but not limited to, any reproduction rights in any Referenced Content, remain with the creator(s) thereof, and the purchase of the NFT does not constitute an assignment thereof.
20.2. Transfer of ownership to an NFT will not guarantee continuing access to the Referenced Content to which it relates and you further acknowledge and agree to the risks associated with purchasing, using, transferring, and owning NFTs, as applicable, including, but not limited to, telecommunications, network, server, or blockchain failures, malfunctions, or disruptions; risk of losing access to the NFT due to lost or forgotten private key(s) or password(s) or corrupted wallet files; mis-typed addresses or incorrectly constructed transactions; viruses, phishing, bruteforcing, hacking, security breaches, mining attacks, or other means of cyber-security attack; custodial or buyer error; regulatory interference in one or more jurisdictions; token taxation; personal information disclosure; uninsured losses; and other unanticipated risks.
20.3. Neither Bidder, Buyer nor the Released Parties will be liable for any special, consequential, indirect, incidental or punitive damages. In addition to the above, we will not be liable for any loss whatsoever related to damage or corruption to the Referenced Content, failure of the NFT to reference the Referenced Content, or loss of, or other security or persistence issues related to, the Referenced Content.
20.4. The Bidder and Buyer have sufficient understanding of NFTs, digital wallets and other storage mechanisms, cryptocurrencies, blockchain technology, and the use, characteristics, functionality, programming, and/or other material characteristics of all of the foregoing, to fully understand and agree to these Conditions of Business and the disclaimers and risks outlined herein, or have consulted with professional advisors in relation to the foregoing such that any participation by you in the auction of any NFT constitutes an informed acceptance of such disclaimers and risks.
21. Legal Action. These Conditions of Business shall be interpreted in accordance with the laws of the State of Michigan, U.S., without regard to choice of law principles. Any dispute, claim, or controversy arising out of or relating to these Conditions of Business or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Conditions of Business shall exclusively be subject to arbitration, and shall first be subject to mediation as a condition precedent to arbitration. If mediation is unsuccessful, the parties shall proceed to arbitration near Detroit, Michigan, before one arbitrator and all proceedings shall be conducted in English. The mediation and arbitration shall be administered by the American Arbitration Association pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to this auction, the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, the Bidder agrees that the maximum liability of RMS arising out of or related to these Conditions of Business or any claim or dispute between the parties regarding the Lot or the LAMBORGHINI ULTIMATE Auction shall be the Buyer’s Premium that would have been due under clause 9 of these Conditions of Business had the Lot (a) met its reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
22. Packing and Shipping. The Released Parties are not responsible for the acts or omissions in our packing or shipping of the purchased Car or of other carriers or packers of the purchased Car, whether or not recommended by the Released Parties. Packing and handling of the purchased Car is at the entire risk of the Buyer.
23. Data Use. The Bidder agrees to allow RMS to use their personal information in accordance with RMS’ Privacy Policy. RMS uses your personal information to provide services specifically tailored toward your requirements and to treat you in a personal way; to fulfill your agreements regarding the consignment and purchase of items at RMS auctions, the LAMBORGHINI ULTIMATE 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-sniping: If a bid is placed within the final two minutes of bids being accepted on the Lot, the LAMBORGHINI ULTIMATE Auction for the Lot may be extended up to an additional two minutes to prevent a Bidder from trying to place a high bid in the final moments of the LAMBORGHINI ULTIMATE Auction for the Lot.
25. 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 anti-money laundering laws and regulations, and represents and warrants that if recognized as the Buyer, such Bidder’s purchase will not cause (or otherwise result in) the Released Parties violating any sanctions, anti-money laundering, anti-terrorism, or anti-bribery or anti-corruption laws.
26. Entire Agreement. This document shall be binding upon the parties and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, these Conditions of Business shall not be modified, except in writing. Whenever used in these Conditions of Business, as the contract requires, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter, and the neuter gender shall include the masculine and feminine.
27. Translations.
27.1. 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.
27.2. If there is a discrepancy, contradiction, or question of interpretation in a description for the Lot, 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.
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 to rescind the sale of the Lot. 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 the Consignor meets the definition of Business provided that such determination is not inconsistent with applicable law.
28.3. Buyers who exercise this right are responsible for any and all expenses associated with the Lot 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 until the Consignor re-takes possession of the Lot.
29. Translated Conditions of Business: If there is a contradiction due to translation in our Conditions of Business, please note that the English version of RMS’ Conditions of Business will supersede.
