CONSIGNOR(S)’ CONDITIONS OF BUSINESS
1. Introduction.
1.1 Please ensure that you read and understand these Conditions of Business prior to consigning a motor car(s) or any other lot(s) at this or any other RM Auctions, Inc. (“RM”) sale.
1.2 RM’s contractual relationship with the Consignor(s)’ are governed by:
1.2.1 These Consignor(s)’ Conditions of Business;
1.2.2 The Consignment Agreement Package; for the avoidance of doubt, this is the fillable package containing the Consignor(s)’ personal information and information regarding the motor car(s) or any other lot(s);
1.2.3 The Conditions of Business displayed in the auction salesroom;
1.2.4 The Conditions of Business displayed on RM’s website; and
1.2.5 In each case as amended by any salesroom notice or auctioneer’s announcement at the auction.
(clauses 1.2 to 1.2.5 together “Contractual Obligations”)
1.3 As auctioneer, RM acts as agent for the Consignor(s) and a sale contract is made directly between the Consignor(s) and Buyer(s).
1.3.1 Occasionally, RM may own a motor car(s) or any other lot(s) (and in such circumstances, acts in a principal capacity as the Seller(s)) and/or may have a legal, beneficial, or financial interest in a motor car(s) or any other lot(s) as a secured creditor or otherwise.
2. RM Receiving Motor Car(s) or Any Other Lot(s) in Trust. The consigned motor car(s) or any other lot(s) are delivered to RM in trust under the exact terms set forth in this agreement. RM agrees to receive the motor car(s) or any other lot(s) in trust and not to permit their use for any other purposes, other than those contained in this agreement, without the expressed written consent of the Consignor(s).
3. Services. RM agrees to act as an agent for the Consignor(s) and provide auction services including, but not limited to, a sale facility, clerks, support staff, event advertising, and promotion. In connection with the auction, RM will have absolute discretion with regard to the motor car(s) and any other lot(s) or any RM auction as to (a) consulting any expert either before or after the sale, (b) researching the provenance, (c) grouping and providing catalogue and other descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
4. Commissions. In the event that the motor car(s) or any other lot(s) are sold, the Consignor(s) agrees to pay the Sellers’ Commission on the last accepted bid to RM, as indicated in the Commissions Section of the consignment package. Further, the Consignor(s) acknowledges that RM will collect a Buyers’ Premium from the Buyer(s) of the motor car(s) or any other lot(s) in question based on the last accepted bid on the motor car(s) or any other lot(s). Please note that the Buyers’ Premium may be subject to change at the discretion of RM if the standard Buyers’ Premium for the auction changes. To be clear, the Buyers’ Premium on the motor car(s) or any other lot(s) will not be different from the Buyers’ Premium for other motor car lot(s) or any other lot(s) in the auction.
5. Proceeds to Consignor(s).
5.1 As an accommodation to the Consignor(s), RM agrees to act as an intermediary between the Consignor(s) and the Buyer(s) by accepting the purchase price from the Buyer(s), transferring the motor car(s) or any other lot(s) to the Buyer(s), and delivering the amounts due to the Consignor(s) under this agreement. If the motor car(s) or any other lot(s) are sold by RM during the term of this agreement, the money due to the Consignor(s) shall be disbursed within twenty (20) business days after the sale provided the purchase price, applicable commissions, and fees have been received by RM, in accordance with the terms of this agreement.
5.2 As used in this agreement, a “sale” occurs between the Consignor(s) and Buyer(s) when the hammer or equivalent device or mechanism drops on the last accepted bid or when the auctioneer awards the motor car(s) or any other lot(s) to the highest Bidder(s).
5.3 The Consignor(s) authorizes RM to release the motor car(s) or any other lot(s) to the successful Buyer(s) upon RM receiving full payment from the Buyer(s) or financing terms as agreed to with RM.
5.4 The Consignor(s) agrees to rely solely upon the Buyer(s) for payment.
5.5 Before payment of any money due to the Consignor(s) is to be made, the Consignor(s) agrees to provide RM with the documents necessary to transfer the ownership of the motor car(s) or any other lot(s) to the Buyer(s).
5.6 If RM has reason to believe or is notified that the Consignor(s)’ breach or alleged breach of the Contractual Obligations or Consignor(s)’ action could potentially cause RM liability (“dispute”), RM, at its sole discretion, may withhold payment to the Consignor(s) until the dispute has been resolved; further, RM may deduct any sums that are due to it from the sum held.
6. Exclusivity.
6.1 The Consignor(s) grants to RM the exclusive right and authority to advertise and sell the motor car(s) or any other lot(s) for a period beginning with the date of this agreement and ending sixty (60) business days following the auction.
6.1.1 If the motor car(s) or any other lot(s) are sold prior to the auction and RM has not agreed in writing to this sale, the motor car(s) or any other lot(s) will then be considered “withdrawn” from the auction by the Consignor(s), and the Consignor(s) agrees to abide by clause 19 Withdrawn Motor Car(s) or Any Other Lot(s) of these Conditions.
6.1.2 If the motor car(s) or any other lot(s) do not sell at auction, the Consignor(s) grants RM the authority to list the motor car(s) or any other lot(s) for sale on RM’s private sales website and advertise in other mediums at RM’s discretion the motor car(s) or any other lot(s) for sale up to sixty (60) days after the auction.
6.1.2.1 RM does not have the authority to unilaterally sell the Consignor(s)’ motor car(s) or any other lot(s) after the auction and must submit what RM believes to be commercially reasonable offers for sale to the Consignor(s).
6.1.2.2 If the Consignor(s) agrees to the sale of the motor car(s) or any other lot(s), the Consignor(s) will be required to pay RM a percentage of the sale price as an administrative fee, based on RM’s standard payment grid.
7. Title, Registration Document(s), and/or Appropriate Document(s) Evidencing Chain of Ownership.
7.1 It is the absolute requirement of the Consignor(s) that they provide any and all title(s), registration document(s), or appropriate document(s) evidencing ownership and/or government registration(s) (such as Purchase Agreement(s) and Bill(s) of Sale) (“Title(s)”) to the motor car(s) or any other lot(s) to RM prior to the auction of the motor car(s) or any other lot(s).
7.2 The Consignor(s) warrants that the Consignor(s) is the sole and only owner of the motor car(s) and that the Consignor(s) has full right and authority to sell the motor car(s).
7.3 The Consignor(s) agrees to provide RM with a good, clear, and transferable Title(s) to the motor car(s) in advance of the auction.
7.3.1 If for whatever reason RM is forced to correct any Title(s) defect(s), the Consignor(s) agrees to pay for any and all reasonable expenses.
7.4 In order to facilitate and transfer the Title(s) for the motor car(s), the Consignor(s) agrees to sign a Power of Attorney attached in this Consignment Agreement package.
8. Non-Payment by Buyer(s). In the event of non-payment by the Buyer(s), RM will endeavor to use reasonable efforts to enforce payment from the Buyer(s); however, RM shall not be liable to the Consignor(s) for payment. If the Buyer(s) does not pay RM, then at RM’s sole discretion, RM may cancel the sale and return the motor car(s) or any other lot(s) to the Consignor(s), enforce payment by the Buyer(s), or take other actions permitted by law. Notwithstanding the preceding sentences, if RM has paid any portion of the purchase price to the Consignor(s), but the purchase price has not been collected from the Buyer(s) of the motor car(s) or any other lot(s), the Consignor(s) hereby agrees, simultaneously with such payment, to assign to RM any and all rights that the Consignor(s) may have against such Buyer(s) to the extent of such payment, whether at law, in equity, or under the Contractual Obligations. The Consignor(s) agrees to execute any documents reasonably necessary to evidence this assignment, including, with respect to the Consignor(s)’ representations, warranties, and indemnities set forth in this agreement. The Consignor(s) authorizes RM, at RM’s sole discretion, to impose on any Buyer(s), and retain for RM’s account, a late charge if payment is not made in accordance with the Contractual Obligations.
9. Motor Car(s) or Any Other Lot(s) Description(s).
9.1 The Consignor(s) agrees to accept sole responsibility and liability for any representations made by RM that accurately repeat the information supplied by the Consignor(s) as to the character, features, condition, correctness, authenticity, or history of the motor car(s) or any other lot(s) and to indemnify, defend, and hold RM harmless from any claims that may be made with respect to any such representations.
9.2 The Consignor(s) is required to review and approve all catalogue description(s) within two (2) business days of receiving the catalogue description(s) from RM’s Research department.
10. Motor Car(s) or Any Other Lot(s) Operation.
10.1 The Consignor(s) warrants that the motor car(s) or any other lot(s) are in a safe, operable condition to be driven or moved by RM’s employees or representatives. The Consignor(s) acknowledges that should RM, at RM’s sole discretion, determine that the motor car(s) or any other lot(s) are not safe to operate or move, the motor car(s) or any other lot(s) will not be allowed across the block under their own power.
10.2 The Consignor(s) authorizes RM to perform minor work on the motor car(s) or any other lot(s) to facilitate the motor car(s) or any other lot(s) to start and drive across the auction block or be presentable for sale, the Consignor(s) will hold RM harmless and indemnify RM from any damage or liability caused by the minor work performed by RM’s staff on the motor car(s) or any other lot(s).
11. Drivers. The Consignor(s) acknowledges and grants permission for RM and its employees and agents to drive or move the motor car(s) or any other lot(s) from time to time before, during, or after the sale. The Consignor(s) acknowledges that it is the Consignor(s)’ responsibility to maintain sufficient insurance coverage to permit such driving or moving, and the Consignor(s) specifically agrees to indemnify, defend, and hold RM harmless, as provided in this agreement, from any liability that may result from such driving or movement of the motor car(s) or any other lot(s).
12. No-Sale of Motor Car(s) or Any Other Lot(s).
12.1 At the termination of this agreement due to a no-sale, the Consignor(s) is required to remove their non-sold motor car(s), including motorcycle(s), boat(s), and trailer(s), from the auction site by the next business day by three PM (3:00 p.m. EST) in the jurisdiction where the auction was held (“Removal Deadline”).
12.1.1 Contingent upon clause 12.1 being satisfied, the motor car(s) Title(s) (as long as the Consignor(s) do not owe RM any money) will be returned to the Consignor(s) within sixty (60) business days.
12.2 If the motor car(s), including motorcycle(s), boat(s), and trailer(s), are not removed by the Removal Deadline, RM will remove the motor car(s), including motorcycle(s), boat(s), and trailer(s), and the Consignor(s) is required to pay RM a removal fee of up to $500.00 (USD) and a daily storage fee of up to $30.00 (USD).
12.3 For the removal of any non-motor car lot(s), including but not limited to memorabilia, jewelry, and clothing, from the auction site, a direct shipping company will contact the Consignor(s) after the sale; please note that a reasonable memorabilia removal and storage fee will apply.
12.4 If the Consignor(s) has not removed their motor car(s) or any other lot(s) from the storage facility within six (6) months of the sale date, RM has the right to enter the motor car(s) or any other lot(s) into an auction at no reserve or sell via private treaty for fair market value.
12.4.1 Once sold, RM will retain all reasonable expenses, auction fees if sold via auction, and if sold via private treaty, a twenty percent (20%) commission; if there are any remaining funds, these will be returned to the Consignor(s) within thirty (30) business days of the sale.
12.5 RM shall have the right to exercise a charge or lien on the non-sold motor car(s) or any other lot(s), or any other property belonging to the Consignor(s) in the possession of RM if the Consignor(s) owe RM money, and to apply any money due or to become due to the Consignor(s), to the outstanding money the Consignor(s) owes to RM.
13. Cancellation/Rescission of Auction.
13.1 RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the auction and will not be liable to the Consignor(s) for any losses or damages resulting from the cancellation/rescission if RM believes the following events have occurred or have a reasonable probability of occurring:
13.1.1 Force Majeure events including, but not limited to:
13.1.1.1 Natural disaster, which despite reasonable efforts, restricts RM from holding the auction;
13.1.1.2 Structural damage to the auction venue prior to the auction, which despite reasonable efforts, restricts RM from holding the auction; and
13.1.1.3 Terrorist event, which despite reasonable efforts, restricts RM from holding the auction.
13.1.2 Government/Court action, order, injunction, regulation, or law that necessitates a cancellation.
14. Cancellation/Rescission of Motor Car(s) or Any Other Lot(s).
14.1 RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the sale of the motor car(s) or any other lot(s) and will not be liable to the Consignor(s) for any losses or damages resulting from the cancellation/rescission if RM believes the following events have occurred or have a reasonable probability of occurring:
14.1.1 RM opines that the motor car(s) or any other lot(s) have been intentionally and materially misrepresented by the Consignor(s);
14.1.2 RM opines that physical damage to the motor car(s) or any other lot(s), which cannot be sufficiently repaired prior to the auction, occurred after this agreement was signed;
14.1.3 RM is served with a lawsuit from a third party in relation to the motor car(s) or any other lot(s);
14.1.4 RM faces significant reputational damages which would cause monetary damages for selling the motor car(s) or any other lot(s);
14.1.5 Material issues regarding Title(s), registration(s), or transfer of ownership that cannot be reasonably cured;
14.1.6 Material issues regarding the provenance, merchantability, or authenticity of the motor car(s) or any other lot(s) that cannot be reasonably cured; or
14.1.7 If there are legitimate claims, accusations, notices, or similar communications made by the Buyer(s) in regard to their purchase of a motor car(s) or any other lot(s) not being authentic, being misrepresented, having an encumbered title or registration, having undisclosed material issue, or having a similar claim, RM has the right to retain the Buyer(s)’ funds on account and be the arbitrator as to the merit of the Buyer(s)’ claims and to cancel the sale of the motor car(s) or any other lot(s) and reimburse the payment to the Buyer(s) if RM deems the Buyer(s)’ claims to be valid.
15. Estimates and Catalogue Descriptions. Any pre-sale estimates are intended as guides for prospective Bidder(s). RM makes no representation or warranty of the anticipated selling price of the motor car(s) or any other lot(s), and no estimate anywhere by RM of the selling price of the motor car(s) or any other lot(s) may be relied upon as a prediction of the actual selling price. Estimates included in catalogues, online, pre-mailers, any advertisements, or elsewhere are preliminary only, and they are subject to revision by RM from time to time at its sole discretion. The Consignor(s) acknowledges that RM will not be liable for any errors or omissions in the catalogue or other descriptions of the motor car(s) or any other lot(s), and these descriptions make no guarantees, representations, or warranties whatsoever to the Consignor(s) with respect to the motor car(s) or any other lot(s), their attribution, legal title, condition, value, or other characteristics.
16. Odometer Statement. The Consignor(s) agrees to provide a duly executed odometer statement on or before the first day of the auction and to accept sole responsibility for the accuracy or inaccuracy of such statement.
17. Reserve(s).
17.1 The reserve price(s) noted in the fillable section of the Auction Consignment Agreement is the lowest bid acceptable to the Consignor(s). The reserve(s) may be lowered at any time by the Consignor(s), either verbally or in writing, but they may not be raised. The reserve(s) do not include commissions to RM. RM has the right to sell the motor car(s) or any other lot(s) at a price below the agreed verbal or written reserve(s) provided that the Consignor(s) receives the same net proceeds as the Consignor(s) would have received had the reserve(s) been met. If no reserve(s), indicate clearly by writing “NONE” in the space provided in the fillable section of the Auction Consignment Agreement.
17.2 If RM contributes to the hammer price to meet the reserve(s), the reserve(s) for the respective motor car(s) or any other lot(s) become the hammer price plus RM’s contribution for purposes of commissions.
18. Insurance. The Consignor(s) will be responsible for maintaining adequate property insurance on the motor car(s) or any other lot(s) at all times, and this insurance must be at least equal to the aggregate low pre-sale auction estimate for the motor car(s) or any other lot(s), which in each case shall include insurance for damages to the motor car(s) or any other lot(s) and shall not be cancellable by the insurance company until after ownership and Title(s) have passed to the Buyer(s) and the Buyer(s) have taken possession of the motor car(s) or any other lot(s) from RM. RM does not maintain insurance with respect to the Consignor(s)’ motor car(s) or any other lot(s), but RM does carry Garage Keeper’s Insurance to cover RM employees’ acts of gross negligence while the motor car(s) or any other lot(s) are in the care, custody, and control of RM. With the exception of RM’s employees’ acts of gross negligence, the Consignor(s) agrees that RM and its respective affiliates and agents will not be responsible for, and the Consignor(s) releases RM and its respective affiliates, agents, and warehouses from, any and all liability for loss of, theft of, or damage to the motor car(s) or any other lot(s).
19. Withdrawn Motor Car(s) or Any Other Lot(s).
19.1 The Consignor(s) acknowledges that RM has incurred and will incur significant costs preparing, advertising, marketing, and promoting the motor car(s) or any other lot(s) for the auction.
19.2 If the Consignor(s) withdraws one or more of the motor car(s) or any other lot(s) from the auction after the signing of this agreement, the Consignor(s) will pay RM the Buyers’ Premium and Sellers’ Commission that would have been due under this agreement, had the motor car(s) or any other lot(s) met (i) their reserve(s), (ii) if offered without reserve(s) then the motor car(s) or any other lot(s) published low estimate(s), or (iii) if no published low estimate(s), then the motor car(s) or any other lot(s) fair market value as determined by RM, by five PM (5:00 p.m.) of the next business day following the auction.
20. Legal Action. In the event that either party brings action against the other arising from or relating to the provisions of this agreement, the prevailing party, as determined by the court, shall be entitled to recover its reasonable attorneys’ fees and costs. The law of the jurisdiction in which the auction is held shall govern the provisions of this agreement.
21. Marketing Fee. The marketing fee is non-refundable and is not credited toward the sales commission.
22. Bidding Restrictions. The Consignor(s) hereby agrees not to bid on his/her/their motor car(s) or any other lot(s). Although the auctioneer shall be entitled to bid on the Consignor(s)’ behalf up to the amount of the reserve(s) (if applicable), the Consignor(s) shall neither instruct nor permit any other person to bid on behalf of the Consignor(s) for his/her/their motor car(s) or any other lot(s). If, however, in violation of the foregoing, the Consignor(s) (or his or her agent) bids on his/her/their motor car(s) or any other lot(s) and becomes the successful Bidder(s), the expenses, entry fee, repair expenses, Buyers’ Premium, and Sellers’ Commission on the hammer price shall be payable by the Consignor(s). If the Consignor(s) does not pay in accordance with this clause, his/her/their motor car(s) or any other lot(s) may be sold without reserve(s).
23. Anti-Freeze is the Responsibility of the Consignor(s).
23.1 As the Consignor(s)’ motor car(s) or any other 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 six (6) months they have winterized their motor car(s) or any other lot(s) for shipping in freezing temperatures. Winterizing one or more of the motor car(s) or any other lot(s) means that the Consignor(s) has completely filled and properly mixed, at a minimum, negative twenty degrees Fahrenheit rated (-20°F) anti-freeze into their motor car(s) or any other lot(s) radiator(s).
23.2 If any damage occurs because the Consignor(s) did not properly winterize their motor car(s) or any other lot(s), it will be the Consignor(s)’ responsibility to cover the damages, and RM may recap these damages from the Consignor(s)’ settlement. If it is found that the Consignor(s) did not properly winterize their motor car(s) or any other lot(s), the associated costs with checking, filling, and disposing the anti-freeze will be recapped from the Consignor(s)’ settlement; if the motor car(s) or any other lot(s) are not sold, the Consignor(s) must pay RM before the Consignor(s) can re-take possession of their motor car(s) or any other lot(s). If already settled, the Consignor(s) must pay RM directly.
24. Entire Agreement. This document contains the entire agreement between the parties and shall be binding upon them and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, this agreement shall not be modified, except in writing. Whenever used in this agreement, 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.
25. No Legal or Tax Advice. This agreement is an important legal document. The Consignor(s) acknowledges that the Consignor(s) has had the opportunity to consult an attorney before signing this agreement and has signed this agreement after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in this agreement, or any contemporaneous written, oral, or implied understandings of the Parties relating to the subject matter of this agreement, RM has not provided legal or tax advice or tax planning services to the Consignor(s) or for the Consignor(s)’ benefit in connection with the transactions contemplated by this agreement, and no one at RM has acted as the Consignor(s)’ attorney or tax advisor.
26. Money Laundering. The Consignor(s) agrees to provide all information and assistance reasonably requested by RM to comply with RM’s internal Anti-Money Laundering process and to comply with any and all Money Laundering Laws and Regulations in force in the jurisdiction in which the auction is held.
27. Photography, Videography, and Illustrations. All photographs, videography, and illustrations commissioned by RM for the motor car(s) or any other lot(s) are the absolute property of RM and RM shall have the absolute right to use the photographs, videography, and illustrations as RM deems fit.
