BIDDERS’ CONDITIONS OF BUSINESS
1. Introduction.
1.1. Please ensure that you read and understand these Bidders’ Conditions of Business (“Conditions of Business”) prior to bidding on a motor car or any other lot (“Lot”) at this or any other RM Auctions, Inc. (“RMA”) or RM Sotheby’s (“RMS”) auction (RMA and RMS together are “RM”). Even though the RM Conditions of Business are generally standardized, there are unique jurisdictional requirements and terms that may not apply to every auction, and it is each bidder in the auction (“Bidder(’s)”) responsibility to understand and review these Conditions of Business as they apply. By agreeing to these Conditions of Business, you are agreeing to be bound by these Conditions of Business for both RMS and RMA auctions. Please note that the Conditions of Business are subject to change from time to time and it will be posted on RM’s website and catalogue, as the case may be. It is each Bidder’s responsibility to apprise themselves of the Conditions of Business for each auction in which the Bidder wishes to participate. Bidders are encouraged to contact RM’s Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Conditions of Business.
1.2. Ferrari North America, Inc. (“FNA”) is conducting an online charity auction using RM’s online auction platform with all proceeds of the sale of the Lot to be donated to the Save the Children charity (501c3). To be clear, RM is to act as the online auction platform for the auction. The contract of purchase and sale for the Lot shall be solely between the authorized Ferrari dealer belonging to the FNA network and the ultimate buyer of the Lot. FNA shall have sole responsibility for selling the Lot to such authorized Ferrari dealer and to ensure that this dealer conducts and completes the sale of the Lot.
1.3. RM’s contractual relationship with the Bidders are governed by:
1.3.1. These Conditions of Business;
1.3.2. The Conditions of Business displayed on RM’s website; and
1.3.3. In each case as amended by any notice or website update.
(Clauses 1.3. to 1.3.3. together are “Contractual Obligations”)
1.4. As auctioneer, RM acts as the agent for FNA and a sale contract is made directly between FNA and the winning Bidder (the “Buyer”).
1.4.1. Occasionally, RM may own a Lot (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 as a secured creditor or otherwise.
2. Bidder Due Diligence Responsibilities. The Bidder is responsible for any and all due diligence including but not limited to inspections and verification of the (i) condition, (ii) authenticity, (iii) completeness, (iv) statements made in reference to, and (v) any and all other matters regarding any Lot offered in an RM sale (“Bidder Due Diligence”).
3. Twenty Day Window for Rescission of Sale due to Buyer Concerns Regarding Lot Description.
3.1. RM will on FNA’s behalf review concerns raised by the Buyer for 20 business days from the date of the auction regarding the Lot description; meaning, any written statements (in any and all mediums) made by RM that accurately repeat the information supplied by FNA as to the originality, character, features, condition, correctness, authenticity, or history of the Lot; after which time, all sales are considered “As Is” and “Where Is” as outlined in clause 4 below. Please send all concerns to legal@rmsothebys.com.
3.2. If it is found that the alleged written statement (that would not have been reasonably found through the Bidder Due Diligence) materially decreases the value or functionality of the Lot, RM will work with the Buyer on behalf of FNA to reach a solution.
3.2.1. The Buyer agrees to indemnify, defend, and hold RM harmless from any claims that may be made with respect to any Buyer-alleged damages or liability, including but not limited to travel expenses, and repair expenses in any way related to actions taken in accordance with clause 3.
(Clauses 3 to 3.2.1 together are “Twenty-Day Window”)
4. With the Exception of the Twenty-Day Window, All Sales Are “As Is” and “Where Is.” No warranties or representations of any type whatsoever are made by RM or FNA to the Bidder regarding any Lot offered in an RM sale. Statements in online content, pre-mailers, advertisements, brochures, signs, and window cards, as well as verbal statements made by FNA, auctioneers or auction staff, are based on statements and historical files, if any, collected from FNA and other third-party sources, and RM has no obligation to verify or authenticate any such statements. All Lot are sold as is, where is, with no representations or warranties, expressed or implied. FNA AND RM DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, AS TO CONDITION, ORIGINALITY, OR AUTHENTICITY; ORIGIN OR PROVENANCE; PREVIOUS USE OR OWNERSHIP; MANUFACTURING OR RESTORATION PROCESSES; YEAR OR AGE; SERIAL NUMBER, MAKE, OR MODEL; OPTIONS AND TOOLS; ENGINE HOURS; AND MILEAGE OF ANY LOT OR COMPONENT OF ANY LOT, AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. Services. RM agrees to act as an agent for the Bidders and provide auction services including but not limited to clerks, support staff, event advertising, and promotion. In connection with the auction, RM will have absolute discretion with regard to the Lot or any RM auction as to (a) consulting any expert either before or after the sale, (b) researching 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.
6. Bidding at the Auction.
6.1. The auction is only open to citizens of the United States, Mexico, and Canada as the Lot will be delivered new and registered in North America and will be built to U.S. specification. Individuals who are not citizens of the United States, Mexico, or Canada will only be permitted to participate in the auction if (i) they can prove residence in either the United States, Mexico, or Canada and (ii) will register the Lot in one of those locations.
6.2. The auction will begin on the date notified to you when you register for the relevant auction and will follow a timed-auction format. Auction Lots are expected to close approximately 1 week after the date on which they begin. The exact closing date will be notified to you in respect of each auction.
6.3. In addition to the obligations outlined in clause 6.1, to bid at the auction, a Bidder must satisfy any and all RM bidder registration requirements which include, but are not limited to (i) being at least 18 years of age; (ii) providing RM with a copy of a valid form of government-issued identification; (iii) providing RM with bank letter written on bank letterhead; RM may waive this requirement at its sole discretion; (iv) providing RM with a copy of a credit card; and (v) providing RM with copies of any and all required financial documents including, but not limited to, financial references, guarantees, deposits, and/or such other security, at RM’s absolute discretion, as security for any bid (together “Bidder Registration Requirements”).
6.4. Please note that even if a Bidder has satisfied and/or met some or all of the Bidder Registration Requirements for previous RM auctions, all Bidders will be required to satisfy and/or meet the Bidder Registration Requirements for the auction specifically prior to being accepted to bid.
6.5. If the Bidder does not satisfy and/or meet the Bidder Registration Requirements, RM, at its sole discretion, may not allow the Bidder to register to bid at the auction.
6.6. Once you have satisfied the Bidder Registration Requirements, you will be able to place bids against Lot at the auction. To place a bid the Bidder must follow the instructions and processes on the auction platform.
6.7. Once made, no Bidder may retract a bid made during the auction for any reason.
6.8. 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.
6.9. If a bid is placed within the final two minutes of the bid acceptance period for an individual Lot, the auction period for that individual 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 auction for that individual Lot.
6.10. There is no “cooling-off period”, cancellation, or rescission of bids.
6.11. If at the end of the auction, you are awarded the final bid on a Lot, ownership automatically changes hands at the close of the Lot ("Close of Lot”). At the Close of Lot, you are now the legal owner of the applicable Lot and are responsible for payment in full.
6.11.1. To clarify, the term “Close of Lot” shall be defined as the time that the time-based auction expires.
6.12. The Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the Lot.
6.13. RM 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, 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, RM’s sale record is conclusive. RM is not responsible for any errors or omissions in connection with the calling/displaying/accepting of bids.
6.14. By participating in the auction, the Bidder represents and warrants that any bid placed by them, or on their behalf, is not the product of any collusive or other anti-competitive agreement and is otherwise consistent with applicable competition law.
6.15. If a Bidder would like an RM representative to bid on their behalf, they need to complete the corresponding RM Car Specialist as Agent Form attached as Attachment #1 to these Conditions of Business.
6.16. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
7. Purchase Price. The purchase price shall consist of the Hammer Price (defined below) of the Lot (“Purchase Price”).
8. Buyers’ Premium. RM will not collect a Buyers’ Premium on the Hammer Price of the Lot.
9. Taxes.
9.1. The Buyer is responsible to pay all applicable, and any and all other taxes due for which the Buyer does not qualify as exempt, subject to RM verification; proof of exemption is the Buyer’s responsibility. The Buyer is responsible for any applicable duty, import tariffs, charges, or any and all other required payments that are due upon the import of the Lot to its final destination.
9.2. Although by no means an exhaustive list, please be aware that if the Buyer of a Lot resides in an American state in which RM is registered to collect/remit sales tax, RM is required to collect/remit sales tax on the purchase of that Lot. RM is registered to collect/remit sales tax in the following states: California, Florida, Indiana, Pennsylvania, Arizona, New York, and Michigan. RM reserves the right to collect/remit sales tax from residents from other jurisdictions if RM deems the collection/remittance of tax necessary.
10. No Legal or Tax Advice. This agreement is an important legal document. The Bidder acknowledges that the Bidder has had the opportunity to consult an attorney before accepting this agreement 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 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 Bidder or for the Bidder’s benefit in connection with the transactions contemplated by this agreement, and no one at RM has acted as the Bidder’s attorney or tax advisor. As a condition of bidding at the auction, it is the Bidder’s responsibility to satisfy themselves and comply with all applicable tax, duty, or any and all other payments associated with the purchase of a Lot at the auction. A further condition of bidding at the auction is that the Bidder holds RM harmless from any and all tax or regulatory issues that arise due to Tax and Ownership Information (defined below) that RM provides.
10.1. In order to assist Bidders with this process, RM may provide information about the tax status of each 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.
11. Credit Card Hold. Please note that in order to register to bid at an RM sale, RM requires a hold of US$2,000.00 to be placed on the Bidder’s credit card from the date of registration until the close of the auction (“CC Hold”). If the Bidder 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 RM in accordance with clause 12 of these Conditions of Business.
12. Payment.
12.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the contract between FNA and the Bidder is concluded.
12.2. The value of the last accepted bid upon the Close of Lot is the Hammer Price (“Hammer Price”).
12.3. Payment is due in full on or before 5:00 p.m. EST of the next business day (“Payment Deadline”), and payment is to be made to RM.
12.4. For any purchases under US$5,000.00, the Bidder acknowledges and agrees that his/her credit card against which the CC Hold has been taken will automatically be used as the payment method for the Hammer Price of the Lot. Special payment arrangements can be made for multiple Lot purchases, which the Bidder is welcome to discuss with an RM representative upon completion of the auction.
12.5. For final purchases exceeding US$5,000.00, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
12.6. RM 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 plus applicable taxes.
13. Non-Payment. In the event that the Buyer does not pay any portion of the Purchase Price and applicable taxes by the Payment Deadline, the Bidder agrees to and acknowledges that RM has the sole discretion to do any one or any combination of the following:
13.1. Cancel/rescind the sale of a Lot. If the sale is cancelled/rescinded due to non-payment, RM will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission.
13.2. Assume the rights of FNA to pursue the Buyer for any amounts paid to FNA, whether at law, in equity, or under these Conditions of Business.
13.3. Deduct the Purchase Price plus applicable taxes from the Bidder’s cash deposit and/or charge the Purchase Price and applicable taxes 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 plus applicable taxes, in addition to other remedies available by law, RM reserves the right to impose, from the Payment Deadline until the full Purchase Price plus applicable taxes has been made by the Buyer, a late charge of (1) the 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 plus applicable taxes has been made by the Buyer on the:
13.3.1. Purchase Price and applicable taxes;
13.3.2. Applicable expenses;
13.3.3. Any collection costs, attorneys’ fees, and court costs incurred to enforce payment; and
13.3.4. Other damages reasonably related to the Bidder’s non-payment.
14. Reserves. Lot not marked as “no reserve” (or similar) are subject to a reserve set by FNA. When a Lot is sold subject to a reserve, the auctioneer may bid on FNA’s behalf in an amount not to exceed the amount of the reserve.
15. Cancellation/Rescission of Auction. 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 Bidder 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:
15.1. Force Majeure events including but not limited to:
15.1.1. Any natural disaster, which despite reasonable efforts restricts RM from holding the auction; and
15.1.2. Any terrorist event, pandemic, 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) which despite reasonable efforts restricts RM from holding the auction.
15.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold the auction that necessitate a cancellation.
16. Cancellation/Rescission of Lot. RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the sale of a Lot and will not be liable to the Bidder 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:
16.1. RM opines that the Lot has been intentionally and materially misrepresented by FNA;
16.2. RM opines that physical damage to the Lot, which cannot be sufficiently repaired prior to the auction, occurred after this agreement was signed;
16.3. RM is served with a lawsuit from a third party in relation to the Lot;
16.4. RM faces significant reputational damages that would cause monetary damages for selling the Lot;
16.5. Material issues regarding title, registration, or transfer of ownership that cannot be reasonably cured;
16.6. Material issues regarding the provenance, merchantability, or authenticity of the Lot that cannot be reasonably cured;
16.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the Lot at the auction that necessitate a cancellation; or
16.8. If there are legitimate claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a Lot 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 Lot and reimburse the payment to the Buyer if RM deems the Buyer’s claims to be valid.
17. Online Auction is “As Available” and “As Is.”
17.1. All bids on a Lot will be via RM’s online only auction platform.
17.2. Although RM endeavors to provide a safe, secure, and functioning auction, RM cannot guarantee the continuous operation of or access to the auction or a Bidder’s ability to connect and navigate the auction. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RM’s control.
17.3. Bidders agree that they are making use of the online only auction platform at their own risk and that the auction is being provided to Bidders on an “AS AVAILABLE” and “AS IS” basis. Accordingly, to the extent permitted by applicable law, RM 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.
18.1. If the Buyer of a Lot resides in an American state, in an effort to ensure all titles are free and clear of liens or encumbrances, RM manages the process of title reassignment on behalf of the Buyer. Buyers will receive titles in the mail as soon as possible following the auction with a target of a maximum of 20 business days following the auction; however, please note that for reasons beyond RM’s control, including any delays in lien releases by lien holder(s) and/or delays by the Department of Motor Vehicles (or equivalent) in certain states, there are instances where the Buyer may not receive the title within 20 business days and, in those circumstances, RM will work to provide the titles to the Buyer as soon as possible. A US$75.00 administration fee (US$85.00 in the State of California) will be assessed per motor car purchased, but this fee will not apply to nostalgia lots.
18.1.1. If a Lot is rendered “Title in Transit,” it is unlikely that the Buyers will receive the title in the mail within 20 business days following the auction; however, RM will work to provide the titles to the Buyer as soon as possible.
18.1.2. The Buyer acknowledges that delays in transferring titles due to delays at government Motor Vehicle departments happen from time to time, and the Buyer will hold RM harmless from any allegations of damages arising out of government delays.
18.2. If the Buyer of a Lot resides outside the United States, RM will use its best 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. All purchased Lot must be removed by the Buyer from the location in which they resided during the auction within 5 business days of the auction (“RM Removal Deadline”).
19.2. If the RM Removal Deadline is not met, the Buyer will be charged a daily storage fee of up to US$30.00 per Lot (“Storage Fee”) until the Lot are removed.
19.3. Please note that the Buyer is required to insure their Lot while the Lot is being stored on their behalf.
19.4. If the Lot is not removed for one calendar year from the RM Removal Deadline and other arrangements have not been made, RM has the right to (i) auction the Lot, (ii) retain its standard Storage Fee and other applicable expenses, and (iii) return the remaining payment to the Buyer.
20. Legal Action. 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 be determined by arbitration in Detroit, MI, before one arbitrator. The 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.
21. Choice of Law: These Conditions of Business shall be interpreted in accordance with the laws of the State of Michigan.
22. Packing and Shipping. RM is not responsible for the acts or omissions in our packing or shipping of purchased Lot or of other carriers or packers of purchased Lot, whether or not recommended by RM. Packing and handling of purchased Lot are at the entire risk of the Buyer.
23. Data Use. The Bidders agree to allow RM to use their personal information in accordance with RM’s Privacy Policy. RM 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 RM auctions, the auction, and private sales; to provide you with information on upcoming sales; to carry out analysis and market research; to undertake targeted online advertising; to send status updates and service communications; to improve our websites, products, and services; to provide payment services; and for management and administrative purposes. The full Privacy Policy can be found at the bottom of the RM 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 RM, or to unsubscribe to any services or purge your personal information from RM’s systems, please email privacy@rmsothebys.com.
24. Anti-Money Laundering. The Bidder 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 Anti-Money Laundering Laws and Regulations in force in the jurisdiction in which the auction is held.
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 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.
26. Licenses. The auction will be produced by RM Auctions, Inc. of 5536 County Road 11A, Auburn, IN 46706 (Indiana Secretary of State Dealer License No. 1800217).
FERRARI ROMA SPECIFIC CONDITIONS:
27. Transaction Details.
27.1. Please note that this particular Ferrari Roma is still in production at the time of auction announcement and is being built to the aforementioned specification.
27.2. Upon completion, the successful bidder will transact the Lot directly with Ferrari North America, coordinating with them on both the desired dealership location for purchase and collection as well as any titling and registration concerns.
27.3. If the final bid price exceeds the MSRP of the Lot (which includes any applicable taxes and fees at the dealership), RM will be pleased to coordinate with the Buyer and the Save the Children charity (501c3); however, please note, RM is not providing legal or tax advice and any and all technical questions regarding tax receipts or charitable (501c3) donations should be directed to your own legal and tax professionals.
28. Lot Specifications. If the successful Bidder prefers a different specification to the Lot, either because of nationality (e.g. a Canadian requiring a Lot to Canadian specification) or a desire to have an uprated specification (e.g. different colors, different options, customization, etc.), Ferrari will work with the Buyer on the order of a new Ferrari Roma. If additional charges are incurred on the revised specification, however, the difference between the final, delivered Lot’s MSRP and the originally advertised Lot’s MSRP will be added to the purchase price.
ATTACHMENT #1 TO BIDDERS’ CONDITIONS OF BUSINESS
RM CAR SPECIALIST AS AGENT FORM
The Bidder may choose to have an RM Auctions, Inc. (“RMA”) or RM Sotheby’s (“RMS”) (RMA and RMS together “RM”) Car Specialist place a bid on a Lot on their behalf during A Ferrari to Benefit Save the Children auction (“Online Only Auction”). In order for a RM Car Specialist to bid on the Bidder’s behalf, the Bidder must (i) provide the following information, (ii) select and initial beside a bidding option as outlined below, and (iii) sign their name at the bottom of this form:
A FERRARI TO BENEFIT SAVE THE CHILDREN AUCTION
Client Name:
Lot Number:
Bidding Options: I acknowledge and agree that an RM Car Specialist may bid on my behalf on the above referenced lot number at the Online Only Auction in accordance with the following selected option:
A. Up to US$______________________________ Hammer Price (as outlined and defined in the Online Only Auction Bidders’ Conditions of Business).
_____________
Bidders’ Initials
OR
B. As Instructed.
**Please note that if this Option is chosen, the Bidder will be required to provide the RM Car Specialist with their bidding instructions either via email or text message. Verbal bidding instructions will not be accepted.
_____________
Bidders’ Initials
If any dispute arises after the sale wherein an RM Car Specialist bid on behalf of a Bidder during the Online Only Auction, the Bidder acknowledges that RM will not be held responsible for any errors or omissions in connection with the calling/displaying/accepting of bids.
________________________________
Date
____________________________________
Signature of Bidder
