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”) which you are entering into with RM Auctions Italia Srl d.b.a. RM Sotheby’s (“RMS”) prior to bidding on the 2004 Ferrari Enzo, Chassis No. ZFFCZ56B000136069 (the “Lot”).
1.2. Bidding on the Lot will open to registered Bidders on 5 December 2022 at 5:00 p.m. GMT and is expected to close on 7 December 2022 at 5:00 p.m. GMT (the “Close of Lot”) on the Sotheby’s Sealed platform which, is accessible at https://www.sothebys.com/en/ (the “Sotheby’s Sealed”).
1.3. Each bidder in the Sotheby’s Sealed (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 Sotheby’s Sealed. 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.
1.4. RMS’ contractual relationship with Bidders is governed by:
1.4.1. These Conditions of Business;
1.4.2. The Conditions of Business displayed on RMS’ website;
1.4.3. The Key to Lot Symbols and/or Legend referenced in the Lot description on www.rmsothebys.com (the “Website”) as the case may be; and
1.4.4. In each case as amended by any notice, announcement, or website update.
(Clauses 1.4 to 1.4.4 collectively, the “Contractual Obligations”)
1.5. As auctioneer, RMS acts as the agent for the relevant consignor of the Lot (the “Consignor”).
2. Requirements to Bid.
2.1. To bid at the Sotheby’s Sealed, a Bidder must satisfy any and all RMS Bidder registration requirements which include, but are not limited to, (i) being at least 18 years of age; (ii) providing RMS with a copy of a valid form of government-issued identification; (iii) providing RMS with a bank letter written on bank letterhead; RMS may waive this requirement at its sole discretion; (iv) providing RMS with a copy of a credit card; and (v) providing RMS with copies of any and all required financial documents including, but not limited to, financial references, guarantees, deposits, and/or such other security, at RMS’ absolute discretion, as security for any bid (together “Bidder Registration Requirements”).
2.1.1. If planning to pay via cryptocurrency the Bidder must, prior to the opening of the Sotheby’s Sealed, complete all Bidder Registration Requirements and contact RMS’ Client Service department at clientservices@rmsothebys.com for further information on potentially utilizing BitPay to facilitate the use of cryptocurrency. In order to process cryptocurrency, there is a vendor fee of 1% that is applicable to the total Purchase Price (defined below). The embedded BitPay invoice includes the 1% added vendor fee. Please note RMS and BitPay reserves all rights to reject a payment with a cryptocurrency.
2.2. Please note that, even if a Bidder has satisfied and/or met some or all of the Bidder Registration Requirements for previous RMS auctions, all Bidders will be required to satisfy and/or meet the Bidder Registration Requirements for the Sotheby’s Sealed specifically prior to being accepted to bid.
2.3. If the Bidder does not satisfy and/or meet the Bidder Registration Requirements, RMS, at its sole discretion, may not allow the Bidder to register to bid at the Sotheby’s Sealed.
2.4. By participating in the Sotheby’s Sealed, 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.
2.5. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
3. Sotheby’s Sealed Bidding Process.
3.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the auctioneer will review the sealed bids and the highest amount submitted will be declared the winning bid upon which, (i) the bill of sale between the Consignor and the winning Bidder (the “Buyer”) is concluded and irrevocable; (ii) ownership automatically changes hands to the winning Bidder; and (iii) the winning Bidder is now the legal owner of the Lot and is responsible for payment in full.
3.2. Once (i) you have satisfied the Bidder Registration Requirements; (ii) bidding is open; and (iii) you have logged into the online Sotheby’s Sealed platform, the Bidder may input a bid in the highlighted fillable field.
3.2.1. The minimum bid outlined is a commercially reasonable starting bid as determined by RMS.
3.2.2. Once the Bidder has placed a starting bid, the next minimum bid the Bidder may place will be in accordance with the increment table below. If you type an amount that would result in an off-increment bid, your bid will be rounded down to the nearest on-increment bid:
• Current Bid – 0 – 999 | Minimum Increment – 25
• Current Bid – 1,000 - 2,499 | Minimum Increment – 50
• Current Bid – 2,500 - 4,999 | Minimum Increment – 100
• Current Bid – 5,000 - 9,999 | Minimum Increment – 250
• Current Bid – 10,000 - 24,999 | Minimum Increment – 500
• Current Bid – 25,000 - 99,999 | Minimum Increment – 1,000
• Current Bid – 100,000 - 499,999 | Minimum Increment – 5,000
• Current Bid – 500,000 - 999,999 | Minimum Increment – 10,000
• Current Bid – 1,000,000 - 2,500,000 | Minimum Increment – 20,000
• Current Bid – 2,500,000+ | Minimum Increment – 50,000
3.3. If your bid is greater than the current high bid, you will be the new high Bidder; otherwise, you will see where your current bid ranks from 1-15. If your bid is ranked 16th or lower your ranking will be shown as 15+. You may elect to raise your bid at any time prior to the Close of Lot. Any Bidder, including the high Bidder, may still increase their bid by placing another bid for a higher value
3.4. If you were the high Bidder, but a bid placed by another bidder exceeds your bid, you will be notified via the email address or mobile number you have set in your account preferences, and the Lot page will indicate you have been outbid by the change in your ranking.
3.5. For the Sotheby’s Sealed, you will only be able to see your own submitted bid - not the high/winning bid (unless you are the high Bidder). The difference between Bidder positions will not be disclosed.
3.6. The Buyer will be required to pay RMS the last accepted sealed bid upon the Close of Lot plus any applicable Expenses and Fees (defined below) (collectively, the “Purchase Price”) in accordance with clause 13 (Payment).
3.7. Once made, no Bidder may retract a bid made during the Sotheby’s Sealed for any reason.
3.8. If a bid is placed within the final ninety seconds of the bid acceptance period that causes that Bidder to be ranked in the top 3, the Sotheby’s Sealed will be extended up to ninety seconds to prevent a Bidder from trying to place a high bid in the final moments of the Sotheby’s Sealed. This also gives the new Bidder time to consider raising their bid further if they are not the high Bidder.
3.9. There is no “cooling-off period”, cancellation, or rescission of bids.
3.10. RMS reserves the right to reject any bid. RMS has absolute and sole discretion in the case of error or dispute with respect to bidding and, RMS has 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.
3.11. The winning Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot.
4. Bidder Due Diligence Responsibilities. The Bidder is responsible for any and all due diligence including, but not limited to, inspections and verification of the originality, character, features, condition, correctness, authenticity, history or description, statements made in reference to, or any and all other matters regarding the Lot offered at the Sotheby’s Sealed (“Bidder Due Diligence”).
5. All Sales Are “As Is” and “Where Is.” No warranties or representations of any type whatsoever are made by RMS or any Consignor to the Bidder regarding the Lot offered in the Sotheby’s Sealed. Lot descriptions, statements in online content, pre-mailers, advertisements, brochures, signs, and window cards, as well as verbal statements made by the Consignor 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 Lot is sold as is, where is, with no representations or warranties, expressed or implied. THE CONSIGNOR AND RMS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, AS TO CONDITION, ORIGINALITY, OR AUTHENTICITY; ORIGIN OR PROVENANCE; PREVIOUS USE OR OWNERSHIP; MANUFACTURING OR RESTORATION PROCESSES; YEAR OR AGE; SERIAL NUMBER, MAKE, OR MODEL; OPTIONS AND TOOLS; ENGINE HOURS; AND MILEAGE OF THE LOT OR COMPONENT OF THE LOT, AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
6. Services. RMS may provide services including clerks, support staff, advertising, and promotion. In connection with the Sotheby’s Sealed, RMS will have absolute discretion with regard to the Lot as to (a) consulting any expert either before or after the Sotheby’s Sealed, (b) researching provenance, (c) grouping and providing descriptions as may be appropriate, (d) marketing and promotion of the Lot, and (e) any other services required to conduct the Sotheby’s Sealed of the Lot.
7. Currency. The Lot will be sold at the Sotheby’s Sealed in United States dollars ($). If the Bidder is planning to pay via cryptocurrency, please refer to clause 2.1.1. of these Conditions of Business.
8. 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.
9. No Legal or Tax Advice.
9.1. 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 Sotheby’s Sealed, 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 Sotheby’s Sealed. A further condition of bidding at the Sotheby’s Sealed is that the Bidder holds RMS harmless from any and all tax or regulatory issues that arise due to Tax and Ownership Information (defined below) that RMS provides.
9.2. 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 respective 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.
10. Buyer’s Premium. No Buyers’ Premium (0%) will be collected for the Sotheby’s Sealed.
11. Credit Card Hold. Please note that in order to register to bid at the Sotheby’s Sealed, RMS requires a hold of $5,000 USD to be placed on the Bidder’s credit card from the date of registration until the close of the Sotheby’s Sealed (“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 13 (Payment) of these Conditions of Business.
12. Expenses and Fees. Expenses and fees as outlined in these Conditions of Business include, but are not limited, to transportation, duty, storage, insurance, and taxes (collectively “Expenses and Fees”). The Buyer will be required to pay the applicable Expenses and Fees to RMS in addition to the last accepted sealed bid upon the Close of Lot in accordance with clause 13 (Payment).
13. Payment.
13.1. Payment is due in full on or before 5:00 p.m. GMT of the next business day (“Payment Deadline”), and payment is to be made to RMS.
13.2. All payments must be in the form of wire transfer unless other arrangements have been approved in advance.
13.3. 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.
14. Non-Payment.
14.1. In the event of no or partial payment of the Purchase Price by the Payment Deadline, the Bidder agrees to and acknowledges that RMS has the sole discretion to do any one or any combination of the following:
14.1.1. Cancel/rescind the sale of 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.
14.1.2. Assume the rights of the Consignor to pursue the Buyer for any amounts paid to the Consignor whether at law, in equity, or under these Conditions of Business.
14.1.3. Charge the Purchase Price to the credit card that the Bidder has provided. If the Bidder’s credit card payment does not cover the Purchase Price, in addition to other remedies available by law, RMS reserves the right to impose, from the Payment Deadline until the full Purchase Price has been made by the Buyer, a late charge of (1) the U.S. Prime Rate then in effect, as published by The Wall Street Journal (“U.S. Prime Rate”) + 4.00% for up to the first 60 calendar days after the Payment Deadline and (2) the U.S. Prime Rate + 8.00% thereafter until the full Purchase Price has been made by the Buyer on the:
14.1.3.1. Purchase Price;
14.1.3.2. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
14.1.3.3. Other damages reasonably related to the Bidder’s non-payment.
14.1.3.4. Please note that the U.S. Prime Rate as outlined above will be adjusted daily to account for changes in the U.S. Prime Rate and may increase or decrease during the term of these Conditions of Business.
14.2. In the event of a non-payment, the Buyer will INDEMNIFY, DEFEND (WITH RMS’ SOLE CHOICE OF COUNSEL), AND HOLD RMS AND ITS 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 14.1.
15. Cancellation/Rescission of Sotheby’s Sealed.
15.1. RMS will use reasonable efforts to avoid cancellation/rescission; however, RMS has the sole discretion to cancel/rescind the Sotheby’s Sealed and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission including, but not limited to, if RMS believes the following events have occurred or have a reasonable chance of occurring:
15.1.1. Force Majeure events including but not limited to:
15.1.1.1. Any natural disaster which, despite reasonable efforts, restricts RMS from holding the Sotheby’s Sealed in its contemplated form; and
15.1.1.2. Any terrorist event (including resulting governmental restrictions), pandemic, war, as well as any “guideline” or “recommendation” by government (local, state/province, or federal/national) and/or accredited health organizations (including the World Health Organization) which, despite reasonable efforts restricts RMS from holding the Sotheby’s Sealed in its contemplated form.
15.1.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the Sotheby’s Sealed that necessitate or make prudent a cancellation.
16. Cancellation/Rescission of Lot.
16.1. 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:
16.1.1. RMS opines that the Lot has been intentionally and materially misrepresented by the Consignor;
16.1.2. RMS opines that physical damage to the Lot, which cannot be sufficiently repaired prior to the Sotheby’s Sealed, occurred after these Conditions of Business were formed;
16.1.3. RMS is served with a lawsuit or threatened with a dispute from a third party in relation to the Lot;
16.1.4. RMS faces significant reputational damages that would cause monetary damages for offering or selling the Lot;
16.1.5. 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;
16.1.6. 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;
16.1.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot at the Sotheby’s Sealed that necessitate a cancellation; or
16.1.8. 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.
17. Sotheby’s Sealed is “As Available” and “As Is.”
17.1. Although RMS endeavors to keep the Sotheby’s Sealed safe, secure, and functioning properly, RMS cannot guarantee the continuous operation of or access to the Sotheby’s Sealed or, a Bidder’s ability to connect and navigate the Sotheby’s Sealed. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RMS’ control.
17.2. Bidders agree that they are making use of the Sotheby’s Sealed at their own risk and, that the Sotheby’s Sealed 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.
18. Title Transfer. RMS will use its reasonable efforts to assist with the transfer of ownership; however, it is the responsibility of the Buyer to transfer ownership in compliance with their jurisdictional rules and regulations.
19. Removal of Purchased Lot.
19.1. The Lot will remain with the Consignor during the Sotheby’s Sealed at Zanasi S.r.l. in Sassuolo, Italy. Upon conclusion of the Sotheby’s Sealed and, upon complete payment being made in accordance with clause 13 (Payment), RMS will work with both the Consignor and Buyer to coordinate the removal and transport of the Lot from its current location.
19.2. Please note that:
19.2.1. The Buyer is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot; and
19.2.2. If the Lot is not removed from its current location within one calendar year of the conclusion of the Sotheby’s Sealed and, other arrangements have not been made, RMS has the right to (i) auction the Lot, (ii) retain its standard Buyer’s Premium and Expenses and Fees, and (iii) return the remaining funds, if any, to the Buyer within 30 business days of the sale.
20. Legal Action. These Conditions of Business shall be interpreted in accordance with the laws of England, 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 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 the Sotheby’s Sealed or the Lot, the prevailing party, as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys’ fees and costs, including through appeals..
21. Packing and Shipping. RMS is not responsible for the acts or omissions in our packing or shipping of the purchased Lot or of other carriers or packers of the purchased Lot, whether or not recommended by RMS. Packing and handling of the purchased Lot is at the entire risk of the Buyer.
22. Data Use. The Bidders agree to allow RMS to use their personal information in accordance with RMS’ Privacy Policy. RMS uses your personal information to provide services specifically tailored toward your requirements and to treat you in a personal way; to fulfill your agreements regarding the consignment and purchase of items at RMS auctions, the Sotheby’s Sealed, 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.
23. Anti-sniping: If a bid is placed within the final ninety seconds of bids being accepted on the Lot, the Sotheby’s Sealed for the Lot may be extended up to an ninety seconds to prevent a Bidder from trying to place a high bid in the final moments of the Sotheby’s Sealed for the Lot.
24. Anti-Money Laundering. The Bidder agrees to provide all information and assistance reasonably requested by RMS to comply with RMS’ internal anti-money laundering process and to comply with any and all applicable anti-money laundering laws and regulations.
25. Entire Agreement. This document shall be binding upon the parties and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, these Conditions of Business shall not be modified, except in writing. Whenever used in these Conditions of Business, as the bill of sale requires, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter, and the neuter gender shall include the masculine and feminine.
26. Translations.
26.1. If there is a discrepancy, contradiction, or question of interpretation regarding enforceability between the English version of the Conditions of Business and a version of the Conditions of Business produced in a language other than English, the English version of RMS’ Conditions of Business will supersede.
26.2. If there is a discrepancy, contradiction, or question of interpretation in a description for 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.
27. 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 27 shall affect any Buyer(s) legal rights that shall apply against the Consignor as a result of any applicable laws.
27.1. 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”).
27.2. RMS reserves the right to make the reasonable determination as to whether a Consignor meets the definition of Business, provided that such determination is not inconsistent with applicable law.
27.3. Buyers who exercise this right is responsible for any and all expenses associated with the Lot including, but not limited to, transportation, duty, storage, insurance, and taxes.
27.4. If the Buyer exercises this right, they are advised to insure the Lot until the Consignor re-takes possession of the Lot.
