CONSIGNORS’ CONDITIONS OF BUSINESS
1. Introduction:
1.1. 1.1. RM Auctions Limited d.b.a. RM Sotheby’s (“RMS”) will be conducting an auction using RMS’ Online Only auction platform (“Online Only Auction”).
1.2. The Online Only Auction is scheduled to take place in the month of February 2021 (13 February 2021) and will follow a timed-auction format. Online Only Auction lots are expected to close approximately 1 week after the bidding opens to registered bidders.
1.3. Please ensure that you read and understand these Conditions of Business (“Conditions”) prior to consigning a Lot(s) at this or any other RMS sale.
1.4. RMS’ contractual relationship with the Consignors is governed by:
1.4.1. These Conditions;
1.4.2. The Auction Consignment Agreement;
1.4.3. The Conditions, notices, or addendums displayed on RMS’ website; and
1.4.4. In each case as amended by any notice, auctioneer’s announcement, or website update.
(clauses 1.4. to 1.4.4. together “Contractual Obligations”)
1.5. As auctioneer, RMS acts as agent for the Consignor, and a sales contract is made directly between the Consignor and the Buyer.
1.5.1. Occasionally, RMS may own a Lot(s) (and in such circumstances, acts in a principal capacity as the Seller) and/or may have a legal, beneficial, or financial interest in a Lot(s) as a secured creditor or otherwise.
2. RMS Receiving Lot(s) in Trust: Any consigned Lot(s) is delivered to RMS in trust under the exact terms set forth in these Conditions. RMS agrees to receive the Lot(s) in trust and agrees not to permit its use for any other purposes, other than those contained in these Conditions, without the express written consent of the Consignor.
3. Services: RMS agrees to act as an agent for the Consignor and to provide Online Only Auction services, including but not limited to clerks, support staff, event advertising, and promotion. In connection with the Online Only Auction, RMS will have absolute discretion with regard to the Lot(s) or any RMS auction as to (a) consulting any expert either before or after the sale, (b) researching the provenance, (c) grouping and providing descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
4. Commissions:
4.1. If the Lot(s) is sold, unless otherwise listed in the Specific Information or the Specific Conditions of the Auction Consignment Agreement, the Consignor agrees to pay RMS a Sellers’ Commission as outlined below on the Hammer Price (the last accepted bid is the Hammer Price (“Hammer Price”)) of the Lot(s) (“Sellers’ Commission”).
4.1.1. RMS will retain a Sellers’ Commission of 10% plus VAT on all motor car lots.
4.1.2. RMS will retain a Sellers’ Commission of 20% plus VAT on all non-motor car lots, including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, and clothing.
4.2. Further, the Consignor acknowledges that RMS will collect a standard Buyers’ Premium from the Buyer of the Lot(s) in question, based on the Hammer Price on the Lot(s). Please note that the standard Buyers’ Premium may change from time to time at the discretion of RMS if the standard Buyers’ Premium for the Online Only Auction changes. To be clear, the standard Buyers’ Premium will be clearly published as part of Bidders’ Conditions of Business in advance of the Online Only Auction, and the applicable Buyers’ Premium will be applied consistently across all lots in the Online Only Auction. For purposes of clause 22, Withdrawn Lot(s), of these Conditions, the Buyer’s Premium shall be 15% plus VAT for motor car lots and 20% plus VAT for non-motor car lots on the Hammer Price if the applicable Buyer’s Premium has not yet been clearly published in the Bidders’ Conditions of Business.
5. Inspection Report and Fees:
5.1. As part of the Online Only Auction sale process for each Lot(s) consigned, an RMS representative will perform an inspection and produce an Inspection Report to be made available to prospective bidders along with the relevant description of the Lot(s) as the case may be (“Inspection Report”).
5.2. RMS will charge the Consignor an inspection report fee as outlined in the Specific Information of the Consignment Agreement to be paid via credit card prior to the Lot(s) being accepted for the Online Only Auction to cover the costs of marketing expenses, including photography, and the Inspection Report associated with the Lot(s) (“Inspection Report Fee”). The Inspection Report Fee is non-refundable and is not credited toward the Sellers’ Commission.
5.3. If issues are found during the inspection, RMS will provide the Consignor with a list of issues identified and an estimate to repair those issues where reasonable. The Consignor will be given an option to either (i) fix the issue at the quoted price with RMS recapping this quoted price from the Consignor’s proceeds of sale, provided there is reasonably sufficient time to fix such issue, OR (ii) leave the Lot(s) as is and market the Lot(s) with the issues disclosed.
5.3.1. Notwithstanding the above, if during RMS’ inspection, RMS (using reasonable commercial judgment) determines that the Lot(s) is unfit for sale due to several issues including, but not limited to, safety, mechanical, body condition, and authenticity, RMS reserves the right to rescind the consignment of the Lot(s) and the Consignor agrees to indemnify and hold RMS harmless from any alleged liabilities arising out of the rescission.
5.3.2. If RMS rescinds the consignment of the Lot(s) in accordance with clause 5.3.1, the Inspection Report Fee becomes non-refundable and it is the Consignor’s responsibility to arrange and pay for transportation of the Lot(s). If the Consignor does not remove the Lot(s) from either RMS’ United Kingdom, Belgium, Germany or Netherlands storage facility, the Consignor will be required to pay RMS a storage fee of €50.00 per day.
5.4. RMS disclaims any and all representations and warranties with regard to the inspection and the Consignor will hold RMS harmless from any claims, demands, losses, expenses, damages, costs, actions, and liabilities, including without limitation to court costs and attorney fees, of whatever kind or nature that may or may not occur, whether known or unknown, on the account of or arising out of all matters related to the inspection.
6. Proceeds to Consignor:
6.1. As an accommodation to the Consignor, RMS agrees to act as an intermediary between the Consignor and the Buyer by accepting the purchase price from the Buyer, transferring the Lot(s) to the Buyer, and delivering the amounts due to the Consignor under these Conditions. If the Lot(s) is sold by RMS during the term of these Conditions, RMS will make reasonable efforts to disburse the money due to the Consignor within 21 business days after the sale, provided that the purchase price, applicable commissions, and fees have been received by RMS, in accordance with the terms of these Conditions and no claim or Dispute has been raised by the Buyer.
6.2. As used in these Conditions, a “sale” occurs between the Consignor and the Buyer when the hammer or equivalent device or mechanism drops on the Hammer Price or when the time expires on a time-based online only auction or when the auctioneer awards the Lot(s) to the highest Bidder, provided the Consignor is able to receive at least the net reserve price, defined as reserve price minus Sellers’ Commission as agreed in the Auction Consignment Agreement.
6.3. The Consignor authorizes RMS to release the Lot(s) to the successful Buyer upon RMS receiving full payment from the Buyer or financing terms are agreed to with RMS.
6.4. The Consignor agrees to rely solely upon the Buyer for payment and to hold harmless RMS in the event that the Buyer does not remit full payment to RMS.
6.5. Before payment of any money due to the Consignor is to be made, the Consignor agrees to provide RMS with the documents necessary to transfer the Ownership (defined below) of the Lot(s) to the Buyer. Thereafter, Consignor agrees to provide any cooperation that RMS in its sole discretion deems necessary to transfer such Ownership, Title (defined below), or registration to the Buyer.
6.6. If RMS in its sole discretion has reason to believe or is notified that the (i) Consignor’s breach of the Contractual Obligations, (ii) alleged breach of the Contractual Obligations, (iii) Consignor’s actions could potentially cause RMS liability, and/or (iv) Buyer raises concerns regarding the Lot(s) originality, character, features, condition, correctness, authenticity, or history or description (during or after the Twenty Day Window (defined below) as outlined in clause 12) (collectively “Dispute”), RMS, at its sole discretion, may withhold payment to the Consignor until the Dispute has been resolved; further, RMS may deduct any sums that are due to it from the sum held.
7. Exclusivity: The Consignor grants to RMS the exclusive right and authority to advertise and sell the Lot(s) for a period beginning with the date of these Conditions and ending 90 business days following the Online Only Auction.
7.1. If the Lot(s) is sold prior to the Online Only Auction and RMS has not agreed in writing to this sale, the Lot(s) will then be considered “withdrawn” from the Online Only Auction by the Consignor, and the Consignor agrees to abide by clause 22, Withdrawn Lot(s), of these Conditions.
7.2. If the Lot(s) does not sell at the Online Only Auction, the Consignor grants RMS the authority for up to 90 business days after the Online Only Auction to (a) list the Lot(s) for sale on RMS’ Private Sales website, (b) advertise, in other media at RMS’ discretion, the Lot(s) for sale, and (c) if there was a reserve price agreed to between the parties, unilaterally sell the Lot(s) for an amount equal to or greater than the reserve price.
8. Title, Registration Documents, and/or Appropriate Documents Evidencing Chain of Ownership to Lot(s):
8.1. It is the absolute requirement of the Consignor that they provide any and all titles, registration documents, or appropriate documents evidencing ownership and/or government registrations (such as Purchase Agreements and Bills of Sale) (“Titles”) to the Lot(s) to RMS prior to the Online Only Auction of the Lot(s).
8.2. The Consignor warrants that the Consignor is the sole owner of the Lot(s), and that the Consignor has full right and authority to sell the Lot(s) (“Ownership”).
8.3. The Consignor agrees to provide RMS with a good, clear, and transferable Title to the Lot(s) in advance of the Online Only Auction.
8.3.1. If for whatever reason RMS is forced to correct any Title defect, the Consignor agrees to first pay RMS a minimum fee of €500.00 and, if the Title defect costs more than €500.00 to correct, the Consignor agrees to pay for any and all additional reasonable expenses related to correcting such defect (“Title Fees”). The Title Fees will be deducted from the Consignor’s proceeds of sale.
8.3.1.1. In cases where pre-existing Titles do not exist and insurance bonds are necessary, the Consignor will be charged Title Fees on a case-by-case basis.
8.4. In order to facilitate and transfer the Title for the Lot(s), the Consignor agrees to sign the Power of Attorney attached to the Auction Consignment Agreement.
8.5. The Consignor will indemnify, defend, and hold RMS harmless from any claims, demands, losses, expenses, damages, costs, actions, and liabilities, including without limitation to court costs and attorney fees, of whatever kind or nature that may or may not occur, whether known or unknown, on the account of or arising out of all matters related to the Ownership and Titles.
9. Transportation: The Consignor will be responsible for paying any and all expenses associated with transporting the Lot(s) to either RMS’ United Kingdom, Belgium, Germany or Netherlands storage facility. These expenses may be recapped from the Consignor’s proceeds of sale.
10. Non-Payment by Buyer: In the event of non-payment by the Buyer, RMS will endeavor to use reasonable efforts to enforce payment from the Buyer; however, RMS shall not be liable to the Consignor for payment. If the Buyer does not pay RMS, then at RMS’ sole discretion, RMS may cancel the sale and return the Lot(s) to the Consignor, enforce payment by the Buyer, or take other actions permitted by law. Notwithstanding the preceding sentences, if RMS has paid any portion of the purchase price to the Consignor, but the purchase price has not been collected from the Buyer of the Lot(s), the Consignor hereby agrees, simultaneously with such payment, to assign to RMS any and all rights that the Consignor may have against such Buyers to the extent of such payment, whether at law, in equity, or under the Contractual Obligations. The Consignor agrees to execute any documents reasonably necessary to evidence this assignment, including with respect to the Consignor’s written statements (in any and all mediums) made, warranties and indemnities as set forth in these Conditions. The Consignor authorizes RMS, at RMS’ sole discretion, to impose on any Buyer, and retain for RMS’ account, a late charge if payment is not made in accordance with the Contractual Obligations.
11. Lot(s) Description:
11.1. The Consignor agrees to accept sole responsibility and liability for any oral or written statements (in any and all mediums) made by RMS that accurately repeat the information supplied by the Consignor as to the originality, character, features, condition, correctness, authenticity, or history of the Lot(s), and also to indemnify, defend, and hold RMS harmless from any claims or Disputes that may be made with respect to any such oral or written statement (in any and all mediums).
11.2. The Consignor is required to review and approve any and all descriptions within 3 business days of receiving the description from RMS.
11.3. If, for whatever reason, RMS has not received an approval of the Lot(s) description from the Consignor at least 3 business days prior to the Online Only Auction, RMS may deem such description approved by the Consignor or cancel the sale of the Lot(s).
11.4. If RMS cancels the sale of the Lot(s) due to the obligations in clause 11.3 not being fulfilled, the Consignor will:
11.4.1. forfeit the Inspection Report Fee;
11.4.2. pay RMS any and all other expenses incurred by RMS assigned to the Lot(s); and
11.4.3. will be responsible to pay RMS a 10% commission on the Lot(s) had the Lot(s) (a) met its reserve; or (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no reserve and no published low estimate, then the Lot’s fair market value as determined by RMS.
12. Twenty Day Window for Rescission of Sale due to Buyer Concerns Regarding Lot(s) Description:
12.1. RMS will review concerns raised by the Buyer, including for 20 business days from the date of the Online Only Auction or such time thereafter as RMS in its sole discretion deems prudent under the circumstances, regarding the Lot(s) description; meaning, any oral or written statements (in any and all mediums) made by RMS that accurately repeat the information supplied by the Consignor as to the originality, character, features, condition, correctness, authenticity, or history of the Lot(s).
12.2. If RMS finds that the alleged oral or written statement (that would not have been reasonably found through the Bidder’s due diligence) decreases the value or functionality of the Lot(s), RMS will work with the Buyer to reach a solution.
12.2.1. The Consignor agrees to indemnify, defend, and hold RMS harmless from any claims that may be made with respect to any Buyer alleged Disputes, 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 12.
(clause 12 to 12.2.1. together “Twenty Day Window”)
13. Lot(s) Operation:
13.1. The Consignor warrants that the Lot(s) is in a safe, operable condition to be driven or moved by RMS’ employees or representatives. The Consignor acknowledges that, should RMS, at RMS’ sole discretion, determine that the Lot(s) is not safe to operate or move, RMS may rescind the consignment of the Lot(s) from the Online Only Auction.
13.2. The Consignor authorizes RMS to perform minor work on the Lot(s) to facilitate the Lot(s) starting and driving or being presentable for sale. The Consignor will hold RMS harmless and indemnify RMS from any damage or liability caused by the minor work performed by RMS’ staff on the Lot(s).
14. Drivers: The Consignor acknowledges and grants permission for RMS and its employees and agents to drive or move the Lot(s) from time to time before, during, or after the sale. The Consignor acknowledges that it is the Consignor’s responsibility to maintain sufficient insurance coverage to permit such driving or moving, and the Consignor specifically agrees to indemnify, defend, and hold RMS harmless, as provided in these Conditions, from any liability that may result from such driving or movement of the Lot(s).
15. No-Sale of Lot(s):
15.1. If there is a no-sale, any and all fees owing, including but not limited to Title Fees, must be paid to RMS before the Lot(s) is released to the Consignor.
15.2. If there is a no-sale, the non-sold Lot(s) must be removed from the location in which they resided during the Online Only Auction within 5 business days of the Online Only Auction or such other period that RMS may designate (“Removal Deadline”).
15.3. Contingent upon clause 15.2 being satisfied, the Lot’s Title (as long as the Consignor does not owe RMS any money) will be returned to the Consignor within 60 business days.
15.4. If the Removal Deadline is not met, the Consignor will be required to pay RMS a daily storage fee of up to €40.00 plus VAT per Lot(s) until full payment and instructions for transport have been received. Please note it is the Consignor’s responsibility to insure their Lot(s) whilst in storage.
15.5. If the Consignor has not removed their Lot(s) from the storage facility within 6 months of the auction date, RMS has the right to enter the Lot(s) into an auction at no reserve or to sell it via private sale for fair market value.
15.5.1. Once sold, RMS will retain all reasonable expenses including storage, auction fees if sold via auction, and if sold via private sale, a 20% commission; if there are any remaining funds, these will be returned to the Consignor within 30 business days of the sale.
15.6. RMS shall have the right to exercise a charge or lien on the non-sold Lot(s) or any other property belonging to the Consignor in the possession of RMS if the Consignor owes RMS money, and to apply any money due or to become due to the Consignor to the outstanding money the Consignor owes to RMS.
16. Cancellation/Rescission of Online Only Auction: RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the Online Only Auction and will not be liable to the Consignor for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
16.1. Force majeure events, including but not limited to:
16.1.1. Any natural disaster that, despite reasonable efforts, restricts RMS from holding the Online Only Auction; and
16.1.2. Any terrorist event, pandemic (including resulting governmental restrictions), war, as well as any “guideline” or “recommendation” by government (local, state/province, federal/national) and/or accredited health organizations (including the World Health Organization) that, despite reasonable efforts, restricts RMS from holding the Online Only Auction in its contemplated form.
16.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the Online Only Auction that necessitate or make prudent a cancellation.
16.3. If the Online Only Auction is cancelled for any of the reasons outlined in this clause, RMS has the right-of-first refusal to consign and sell the Lot(s) for up to one year from the date of cancellation. If the Consignor has an opportunity to place the Lot(s) in an auction or sell via private sale, RMS has the right to meet the economic terms of the opportunity and sell on behalf of the Consignor for up to 5 business days from the Consignor providing notice.
17. Cancellation/Rescission of Lot(s): RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the sale of a Lot(s) and will not be liable to the Consignor for any losses or damages resulting from the cancellation/rescission if RMS believes the following events have occurred or have a reasonable chance of occurring:
17.1. RMS opines that the Lot(s) has been intentionally or materially misrepresented by the Consignor;
17.2. RMS opines that physical damage to the Lot(s), which cannot be sufficiently repaired prior to the Online Only Auction, occurred after these Conditions was signed;
17.3. RMS is served with a lawsuit or threatened with a Dispute from a third party in relation to the Lot(s);
17.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot(s);
17.5. Material issues regarding the Title, registration, or transfer of Ownership that cannot be reasonably cured or RMS believes would expose it to claims or Disputes from a third party;
17.6. 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;
17.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot(s) at the Online Only Auction that necessitate a cancellation; or
17.8. If there are Disputes, claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a Lot(s) not being authentic, being misrepresented, having an encumbered title or registration, having an undisclosed material issue, or having a similar claim, RMS has the right to retain the Buyer’s funds on account and be the arbitrator as to the merit of the Buyer’s claims, including to cancel or rescind the sale of the Lot(s) and reimburse the payment to the Buyer if RMS in its sole discretion deems the Buyer’s claims to be valid.
17.9. If the sale of the Lot(s) is cancelled for any of the reasons outlined in this clause, RMS has the right-of-first refusal to consign and sell the Lot(s) for up to one year from the date of cancellation. If the Consignor has an opportunity to place the Lot(s) in an auction or sell via private sale, RMS has the right to meet the economic terms of the opportunity and sell on behalf of the Consignor for up to 5 business days from the Consignor providing notice.
18. Estimates: Any pre-sale estimates are intended as guides for prospective Bidders. RMS makes no representation or warranty of the anticipated selling price of a Lot(s), and no estimate anywhere by RMS of the selling price of a Lot(s) may be relied upon as a prediction of the actual selling price. Estimates included online, in pre-mailers, in any advertisements, or elsewhere are preliminary only, and they are subject to revision by RMS from time to time at its sole discretion. The Consignor acknowledges that RMS will not be liable for any errors or omissions in the pre-sale estimates of a Lot(s), and these pre-sale estimates make no guarantees, representations, or warranties whatsoever to the Consignor with respect to a Lot(s)’ value.
19. Odometer Statement: The Consignor will provide a duly executed odometer statement on or before the first day of the Online Only Auction, and further accepts sole responsibility and shall defend, indemnify and hold RMS harmless for the accuracy or inaccuracy of such statement.
20. Reserve:
20.1. A reserve price noted in the fillable section of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor. If no reserve, indicate clearly by writing “N/A”, “NONE”, or otherwise striking through in the space provided in the fillable section of the Auction Consignment Agreement.
20.2. Reserve prices may be lowered at any time by the Consignor, either verbally or in writing, but they may not be raised.
20.3. The reserve does not include commissions to RMS.
20.4. RMS has the right to sell a Lot(s) at a price below the agreed verbal or written reserve, provided that the Consignor receives the same net proceeds as the Consignor would have received had the reserve been met.
20.5. When a Lot(s) is sold subject to a reserve, the auctioneer may bid on the Consignor’s behalf in an amount not to exceed the amount of the reserve.
20.6. If RMS contributes to the Hammer Price to meet a reserve, the reserve for the respective Lot(s) becomes the Hammer Price plus RMS’ contribution for purposes of commissions.
21. Insurance: The Consignor will be responsible for maintaining adequate property insurance on the Lot(s) at all times, and this insurance must be at least equal to the aggregate low pre-sale Online Only Auction estimate for the Lot(s) or such other amount agreed to between Consignor and RMS, which in each case shall include insurance for damages to the Lot(s) and shall not be cancellable by the insurance company until after Ownership and Title have passed to the Buyer and the Buyer has taken possession of the Lot(s) from RMS. The Consignor agrees that RMS and its respective affiliates and agents will not be responsible for, and the Consignor releases RMS and its respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the Lot(s).
22. Withdrawn Lot(s):
22.1. The Consignor acknowledges that RMS has incurred and will incur significant costs preparing, advertising, marketing, and promoting the Lot(s) for the Online Only Auction.
22.2. If the Consignor withdraws one or more of the Lot(s) from the Online Only Auction after the signing of these Conditions or otherwise sells the Lot(s) in violation of these Conditions, the Consignor will pay RMS the Buyers’ Premium and 50% of the Sellers’ Commission (if the Sellers’ Commission is waived in the Specific Information or Specific Conditions of the consignment agreement package, for the purposes of this clause, the Sellers’ Commission will be 5% of the Hammer Price) that would have been due under these Conditions had the Lot(s) (a) met their reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
23. Online Only Auction is “As Available” and “As Is.”:
23.1. All bids on a Lot(s) will be via RMS’ Online Only Auction platform (collectively “Services”).
23.2. Although RMS endeavors to provide a safe, secure, and functioning Online Only Auction, RMS cannot guarantee the continuous operation of or access to the Online Only Auction or a Bidder’s ability to connect and navigate the Online Only Auction.
23.3. Consignors agree that they are making use of the Online Only Auction at their own risk and that the Online Only Auction is being provided to the Consignors on an “AS AVAILABLE” and “AS IS” basis. Accordingly, to the extent permitted by applicable law, RMS excludes all expressed or implied warranties, terms, and conditions, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
24. Bid Display: RMS may use a bid display for informational purposes only. The bids and currencies listed on the bid display are not real-time bids or conversions pegged to market rates and are not to be relied on by anyone. Errors and inaccuracies may occur in the operation of the bid display. To be clear, the bid price stated by the auctioneer is the prevailing and binding bid price.
25. Legal Action: Any dispute, claim, or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Conditions to arbitrate, shall exclusively be subject to arbitration, and shall first be subject to mediation as a condition precedent to arbitration. If mediation is unsuccessful, the parties shall proceed to arbitration in London, England, before one arbitrator, and all proceedings shall be conducted in English. The mediation and arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event that either party brings action against the other, arising from or relating to this auction or the Lot(s), the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals. To the fullest extent permitted by law, Consignor agrees that the maximum liability of RMS arising out of or related to these Conditions or any claim or dispute between the parties regarding the Lot(s) or Online Only Auction shall be the Sellers’ Commission that would have been due under clause 4.1 of these Conditions had the Lot(s) (a) met their reserve; (b) if offered without reserve, then the Lot’s published low estimate; or (c) if no published low estimate, then the Lot’s fair market value as determined by RMS.
26. Choice of Law: These Conditions shall be interpreted in accordance with the laws of England.
27. Bidding Restrictions: The Consignor hereby agrees not to bid on his/her/their Lot(s). Although the auctioneer shall be entitled to bid on the Consignor’s behalf up to the amount of the reserve (if applicable), the Consignor shall neither instruct nor permit any other person to bid on behalf of the Consignor for his/her/their Lot(s). If, however, in violation of the foregoing, the Consignor (or his or her agent) bids on his/her/their Lot(s) and becomes the successful Bidder, the expenses, Inspection Report Fee, repair expenses, and Buyers’ Premium on the Hammer Price shall be payable by the Consignor. If the Consignor does not pay in accordance with this clause, his/her/their Lot(s) may be sold without reserve.
28. Anti-sniping: If a bid is placed within the final two minutes of bids being accepted on an individual Lot(s), the Online Only Auction for that individual Lot(s) 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 Online Only Auction for that individual Lot(s).
29. Lot’s Batteries: If RMS receives a Lot(s) with a dead battery, or shows signs of a draining battery, RMS will use commercially reasonable effort to install a new battery, and an automatic €200.00 (or the local currency equivalent) replacement fee will be charged to the Consignor. In the event a new or replacement battery costs more than €200.00 (or the local currency equivalent), RMS will charge the actual cost of battery plus €200.00, if the battery is replaceable by an RMS employee.
30. Antifreeze Is the Responsibility of the Consignor:
30.1. As the Consignor’s Lot(s) could be shipped to a location where below-freezing temperatures are a possibility, it is the Consignor’s responsibility to ensure that, within the last 6 months, they have winterized their Lot(s) for shipping in freezing temperatures. Winterizing one or more of the Lot(s) means that the Consignor has completely filled and properly mixed, at a minimum, –25°C-rated antifreeze into their Lot’s radiator.
30.2. If any damage occurs because the Consignor did not properly winterize their Lot(s), it will be the Consignor’s responsibility to cover the damages, and RMS may recoup these damages from the Consignor’s settlement. If it is found that the Consignor did not properly winterize their Lot(s), the associated costs with checking, filling, and disposing of the antifreeze will be recouped from the Consignor’s settlement; if the Lot(s) is not sold, the Consignor must pay RMS before the Consignor can retake possession of their Lot(s). If already settled, the Consignor must pay RMS directly.
31. Entire Agreement: This document shall be binding upon the Parties and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, these Conditions shall not be modified, except in writing. Whenever used in these Conditions, as the contract requires, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter, and the neuter gender shall include the masculine and feminine.
32. No Legal or Tax Advice: These Conditions are an important legal document. The Consignor acknowledges that the Consignor has had the opportunity to consult an attorney before signing these Conditions and has signed these Conditions after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in these Conditions, or any contemporaneous written, oral, or implied understandings of the Parties relating to the subject matter of these Conditions, RMS has not provided legal or tax advice or tax planning services to the Consignor or for the Consignor’s benefit in connection with the transactions contemplated by these Conditions, and no one at RMS has acted as the Consignor’s attorney or tax advisor.
33. Data Use: The Consignor agrees to allow RMS to use their personal information in accordance with RMS’ privacy policy. RMS uses your personal information to provide services specifically tailored toward your requirements and to treat you in a personal way; to fulfill your agreements regarding the consignment and purchase of items at RMS auctions and private sales; to provide you with information on upcoming sales; to carry out analysis and market research; to undertake targeted online advertising; to send status updates and service communications; to improve our websites, products, and services; to provide payment services; and for management and administrative purposes. The full Privacy Policy can be found at the bottom of the RMS website homepage under the Privacy and Terms tab. If you wish to ask any questions regarding the use of your personal information, request a full accounting of what personal information is on file with RMS, unsubscribe to any services, or purge your personal information from RMS’ systems, please email privacy@rmsothebys.com.
34. Anti-Money Laundering: The Consignor agrees to provide all information and assistance reasonably requested by RMS to comply with RMS’ internal anti-money laundering process and to comply with any and all anti-money laundering laws and regulations.
35. Photography, Videography, and Illustrations: All photographs, videography, and illustrations commissioned by RMS for the Lot(s) are the absolute property of RMS, and RMS shall have the absolute right to use the photographs, videography, and illustrations as RMS deems fit.
36. Licenses: The Online Only Auction will be produced by RM Auctions Limited of 40 Queen Anne Street, London, W1G 9EL, England (Company No. 05812660).
37. Confidentiality of the Buyer(s) Identity: Unless RMS elects to do so in its sole discretion, RMS shall not be required to share or produce the name of Buyer(s) to the Consignor(s) without a court order or except in accordance with government regulation.
38. Vehicle Registration Number (If Applicable):
38.1. If the Consignor wishes to sell the Lot(s) but retain the rights to the registration number of the Lot(s), it is the Consignor’s responsibility to notify RMS in writing.
38.2. It shall be the Consignor’s responsibility to take all necessary steps to ensure that the current Lot(s) registration number is reserved and that a new number is allocated prior to the Lot(s) being sold at the Online Only Auction, and if the Consignor does not do so, RMS shall not be responsible for any loss or damage whatsoever arising out of the sale of the Lot(s) or its registration number.
38.3. RMS may, at its discretion (without any assumption of responsibility or duty toward the Consignor or the Buyer), take such steps to facilitate the reservation or transfer of any particular registration number as it thinks fit in order to assist the Consignor or Buyer, but strictly on the condition that no claim attaches to RMS for taking any such steps, whether arising out of RMS’ negligence or any other cause whatsoever.
39. Lot(s) Under Temporary Import:
39.1. If a Lot(s) is brought into Europe from a country outside of Europe, the Lot(s) must be placed on either RMS’ bond in the United Kingdom or one of RMS’ nominated customs agencies for Paris, Monaco, or Italy. Fees and charges vary from sale to sale, and for some countries, this is also determined by the value of the Lot(s).
39.2. Lot(s) subject to temporary importation restrictions cannot be discharged from RMS’ custody without the completion of customs procedures and until full payment has been received. Customs charges will be levied appropriately depending on each individual scenario and will be payable directly to the relevant authorities, for which RMS will provide the details of as and when necessary.
39.3. If the Lot(s) does not sell at the Online Only Auction, the Lot(s) must be re-exported to the country of origin, transferred to another temporary bond, or, alternatively, the Consignor must pay any and all relevant taxes if the Consignor would like the Lot(s) to remain in Europe. The Lot(s) cannot be released from RMS’ care until an option is executed.
39.4. Should the Consignor decide for the Lot(s) to remain in Europe when purchased, the Buyer is responsible to pay any and all import fees for the Lot(s).
40. Consumer Protection Rights: If the Consignor is a Business (defined below) AND the winning Bidder is a consumer AND the consumer has a right of withdrawal against the Consignor on the basis of EU consumer protection laws, the Consignor agrees that the Buyer has the automatic statutory right for 14 calendar days after the Buyer is responsible to take possession of the Lot(s) to rescind the sale of the Lot(s) for any reason. Nothing in this clause shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
40.1. The definition of Business for these Conditions is a natural person or legal entity in the business of selling automobiles and acting for purposes relating to such business (“Business”).
40.2. RMS reserves the right to make the reasonable determination as to whether a Consignor meets the definition of Business.
41. Set-Off: If the Consignor owes RMS money from this or an unrelated transaction, RMS may unilaterally retain funds to satisfy the amount owed by the Consignor. RMS may unilaterally retain funds from the Buyer if the Consignor has breached the terms outlined in these Conditions.
42. Translated Consignors’ Conditions of Business: If there is a contradiction due to translation in our Consignors’ Conditions of Business, please note that the English version of RMS’ Consignors’ Conditions of Business will supersede.
