SOTHEBY'S MOTORSPORT CONDITIONS OF BUSINESS FOR BIDDERS
The following terms and conditions apply to all auction events of, and any transactions with, Sotheby's Motorsport, LLC (which may be referred to as “we” or “us” in these Terms). Every person that wishes to become a bidder on a vehicle being offered at auction (a “Lot” or “Lot(s)”) must agree to these terms and conditions (the “Terms”). The Terms will apply to all persons unless specifically designated that the Terms apply to Sellers or to Buyers. The users of this site may be referred to as “you” or “your”. Together with the information provided to Sotheby's Motorsport and documented between the parties, these Terms and the other documents that have been agreed to constitute the full and complete “Agreement” between the parties.
Part 1 of these Terms are CONDITIONS OF BUSINESS APPLICABLE TO ALL BIDDERS.
Part 2 of these Terms are CONDITIONS OF BUSINESS APPLICABLE TO ALL PERSONS.
As the auctioneer, Sotheby's Motorsport acts as the agent for the Seller. The sales contract is made directly between the Seller and the Buyer. Commissions are chargeable to both Seller and Bidder. The agreement between Sotheby's Motorsport and the Seller provides for a commission to be received from the sales proceeds. In addition, each Bidder is required to pay a Buyer's Premium. Both sets of terms are described in more detail below.
Legal terms applicable to all persons are below. Sotheby's Motorsport is not providing you with legal, tax or financial advice and you are encouraged to consult with your advisors regarding these Terms.
PART 1: CONDITIONS OF BUSINESS APPLICABLE TO BIDDERS
Sotheby's Motorsport agrees to act as an agent for the Seller and to provide the auction services described in these Conditions of Business. As a Bidder you are agreeing to be bound by these Terms and acknowledge that you are responsible to understand these Terms and the auction process. General information on the services and the processes are described in the Sotheby's Motorsport website but are not part of the contract between you and us.
- 1. Bidder's Identity and Financial Capacity. Sotheby's Motorsport requires each prospective Bidder to verify their identity and financial capability. You agree to have your credit card charged for a nominal amount for identity verification purposes and to provide financial statements and/or documentation from your financial institution indicating that you have been approved for a loan sufficient to bid on the Lot(s) on the site. If the Bidder is an entity or acting on behalf of an entity, additional information may be required. You also consent to the use of third party services by Sotheby's Motorsport to verify identity and financial capability. Once we review and verify the information, we will approve you to be a Registered Bidder.
- 2. Inspection and Due Diligence. Sotheby's Motorsport will provide an inspection report from an independent third party inspection service or a Seller Vehicle Disclosure Statement from the Seller. You are encouraged to inspect the vehicle in person and you are 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 any Lot(s) offered in an auction (“Bidder Due Diligence”). Our site allows you to contact the seller directly in the live auction and you are encouraged to do so if you have questions
- 3. Placing a Bid. Once you are registered as a Bidder you may bid on an auction through the site. There are minimum incremental bids required of bidders for each Lot. Once you have made a bid, however, it may not be withdrawn or canceled. To allow for a fair completion of the auction, you acknowledge that any bid placed within the last two minutes of an auction will reset the clock to provide for an additional two minutes. Sotheby's Motorsport reserves the right to reject any bid as well as the discretion to re-open bidding, cancel a sale or re-auction the Lot(s) in dispute in its sole discretion, including in the event of an error or dispute. After the close of the auction, Sotheby's Motorsport will determine the winning bidder. If there is a reserve, Sotheby's Motorsport will determine if the reserve price is met. You consent to Sotheby's Motorsport providing your contact information to the Seller at that point, and you will receive the Seller's contact information.
- 4. Terms of Sale: All Sales Are “As Is” and “Where Is.” You acknowledge and agree that there are no warranties or representations of any type whatsoever made by Sotheby's Motorsport or the Seller regarding the Lot(s) offered in an auction. Information on the site is based on statements and historical files, if any, collected from the Seller and may include the Seller's opinions about the Lot(s). Sotheby's Motorsport has no obligation to verify or authenticate any such statements. All Lot(s) are sold as is, where is, with no representations or warranties, expressed or implied. The disclaimers below apply to all auction sales.
Sotheby's Motorsport will review concerns regarding material misrepresentations raised by the Buyer after the sale for up to 20 business days or such time thereafter as Sotheby's Motorsport in its sole discretion deems prudent under the circumstances. These concerns may be regarding the Lot(s) description, information supplied by the Seller as to the originality, character, features, condition, correctness, authenticity, or history of the Lot(s), directly or through the Sotheby's Motorsport site. If Sotheby's Motorsport determines that the alleged oral or written statement (that would not have been reasonably found through the Bidder's due diligence) materially decreases the value or functionality of the Lot(s), Sotheby's Motorsport will work with the Seller and Buyer to reach a solution. It is the responsibility of the Seller to address any claims that may be made with respect to any such 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 this section. While Sotheby's Motorsport takes no responsibility for alleged material misrepresentations or problems with the Lot(s), it will try to work out a resolution between the Bidder and the Seller.
You acknowledge that Sotheby's Motorsport will also charge a Buyer's Fee equal to 5% of the winning bid with a maximum Buyer's Fee of $25,000. It is the responsibility of the Buyer to pay the winning bid amount plus the Buyer's Fee.
At the conclusion of the auction the successful Bidder will be provided with a Buyer's Kit which will detail the obligations of Buyer and the steps to complete the transaction. The required funds for the auction sale must be sent by wire transfer or ACH to Sotheby's Motorsport by the end of the next business day. We will hold the funds and pay the Seller in accordance with these Terms
After receipt of the funds, Sotheby&apso;s Motorsport will arrange for the title to the Lot(s) to be processed to identify you as the buyer and to have any liens removed. The title with any lien releases will then be sent to you to process the transfer of the title with the appropriate state agency (such as the DMV).
- 5. Taxes. The Buyer is responsible to pay all applicable taxes, duties, tariffs, and any and all other government mandated costs associated with purchasing a Lot in the applicable jurisdictions. Buyer will typically be required to pay taxes on the transfer of the title. If Sotheby's Motorsport is required to collect and remit taxes, you are responsible to pay Sotheby's Motorsport the applicable taxes
- 6. Transportation; Risk of Loss. Sotheby's Motorsport provides four options for vehicle pickup and transportation: (1) you can pick up the vehicle in-person and transport it or drive it home yourself, (2) you can choose and work with your own vehicle transport service, (3) we can connect you with a reputable transport service with nationwide coverage, and (4) we can manage the transportation process for you by working directly with you at no cost, the transporter, and the seller. In all cases, the buyer and/or vehicle transportation company is liable for any damage that occurs during vehicle pickup and transportation. Neither Sotheby's Motorsport nor the transport service that arranges for the transportation company is liable to you for any damage to the Lot(s). Seller will be responsible for making the Lot(s) available to the Buyer directly, or to a carrier arranged by Buyer directly or with the assistance of Sotheby's Motorsport. The Buyer should put insurance in place for the Lot(s) immediately after the conclusion of the auction, and bears the risk of loss when the auction has concluded. The Buyer is responsible for picking up the Lot(s) and transporting it away from the Seller's location within 7 business days after the payment of the amounts due for the auction sale.
- 7. Problems with the Sale of the Lot(s). If you believe that there is a problem with the auction or the condition of the Lot(s), including a breach by Seller of the Contractual Obligations, you must immediately notify Sotheby's Motorsport of the issue and the details of the claims, including issues regarding the Lot(s)'s condition, character, features, condition, correctness, authenticity, or history or description. You must notify Sotheby's Motorsport as soon as possible, but no later than 21 days after the conclusion of the auction. This will constitute a “Dispute” between Bidder and Seller and Sotheby's Motorsport will use commercially reasonable efforts to try to address the Dispute and to have the parties reach an amicable resolution.
In exceptional circumstances, if Sotheby's Motorsport cannot obtain an amicable resolution between the Buyer and Seller to address concerns raised by the Buyer, Sotheby's Motorsport may determine that rescission of the auction sale is warranted.
- 8. Non-Payment by Buyer. In the event of non-payment by you, Sotheby's Motorsport will use reasonable efforts to enforce your payment. If you do not pay the amount due, Sotheby's Motorsport may cancel the sale, and take actions to enforce your payment obligations. In addition, you will owe Sotheby's Motorsport a fee for damages incurred by Sotheby's Motorsport as a result of your non-payment. The fee due will be the sum of (i) the costs and expenses incurred by Sotheby's Motorsport up to that point, (ii) 7.5% of your final bid amount (up to $50,000).
PART 2: CONDITIONS OF BUSINESS APPLICABLE TO ALL PERSONS
Currency. All auctions and transactions are in US Dollars.
No Warranty. All parties acknowledge and agree that online services such as the auction site may be subject to errors and disruptions and Sotheby's Motorsport makes no warranties that the site will be available or function in real time, or be navigable at all times. The site is made available to all users on an “As Is” “Where Is” basis, with no warranty of any kind.
SOTHEBY'S MOTORSPORT MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING THE SITE OR ANY LOT(S) OFFERED AT AUCTION AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.
Photography, Videography, and Illustrations: All photographs, videography, and illustrations commissioned by Sotheby's Motorsport for the Lot(s) are the absolute property of Sotheby's Motorsport, and Sotheby's Motorsport shall have the absolute right to use the photographs, videography, and illustrations as Sotheby's Motorsport deems fit.
Set-Off: If either the Bidder or the Seller owes Sotheby's Motorsport money from any transaction, whether as a result of a breach or otherwise, Sotheby's Motorsport may setoff or retain funds to satisfy the amount owed by the Bidder or the Seller, as the case may be.
Choice of Law. These Conditions of Business and all Contractual Obligations are governed by the laws of the State of Delaware, exclusive of its choice of laws principles.
Dispute Resolution; Binding Arbitration. All persons agree that they will first attempt to amicably resolve any disputes. If there is a dispute between a Seller and a Bidder, Sotheby's Motorsport will agree to use reasonable efforts to mediate the dispute and to facilitate a resolution. If a resolution can be reached, the parties agree to document the agreement, which will include the execution by each party of a full and final release of Sotheby's Motorsport.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims.
If the parties to the dispute cannot reach a resolution, all persons agree that the venue for any dispute resolution shall through binding arbitration. The parties shall proceed to arbitration in the State of Delaware or other location mutually agreement to the parties, before one arbitrator and all proceedings shall be conducted in English. 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. In the event that either party brings action against the other, arising from or relating to these Conditions of Business or any transaction or dispute involving Sotheby's Motorsport, the prevailing party(ies), as determined by the arbitrator or court, shall be entitled to recover its reasonable attorneys' fees and costs, including through appeals.
Class Action Waiver. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND SOTHEBY'S MOTORSPORT ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND SOTHEBY'S MOTORSPORT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL PERSONS AGREE THAT THE MAXIMUM LIABILITY OF SOTHEBY'S MOTORSPORT ARISING OUT OF OR RELATED TO THESE CONDITIONS OR ANY CLAIM OR DISPUTE BETWEEN THE PARTIES REGARDING THE LOT(S) OR ANY AUCTION SHALL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY SOTHEBY'S MOTORSPORT FOR THE SPECIFIC AUCTION AT ISSUE.
Limitation on Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CONTAINED IN THESE TERMS OR ELSEWHERE, EXPRESSED OR IMPLIED, SOTHEBY'S MOTORSPORT SHALL NOT BE LIABLE TO ANY PERSON, INCLUDING THE SELLER OR THE BIDDER, WHETHER IN CONTRACT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGE, AND WHETHER CONSIDERED DIRECT OR INDIRECT, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF ANTICIPATED PROFIT, LOSS OF USE, LOSS OF PRODUCTION, LOSS OF PRODUCT, LOSS OF PRODUCTIVITY, LOSS OF CONTRACT, OR LOSS OF BUSINESS OPPORTUNITY ARISING FROM OR RELATING TO THESE TERMS OR ANY AGREEMENT.
Force Majeure. A “Force Majeure Event" means any act or event that renders a party, wholly or partially, unable to perform its obligations under the Agreement or delays such affected party's ability to do so, when such act or event (i) is beyond the reasonable control of the affected party; (ii) is not due to the fault or negligence of the affected party; and (iii) could not have been avoided by the affected party by the exercise of reasonable diligence. Sotheby's Motorsport shall not be responsible to any other person for any delay or failure to fulfil any obligation under this Agreement or for any expense, cost, loss or damage caused if such delay, non-performance, expense, cost, loss or damage has been caused or contributed by any Force Majeure Event.
Entire Agreement: These Terms and the remainder of the agreements between Sotheby's Motorsport and any other person constitutes the entire agreement between the parties (including any respective predecessor-in-interest) and supersedes all other agreements, proposals, discussions, and correspondence, whether oral or written and regardless of when made, and shall be binding upon all parties and their respective heirs, personal representatives, and assigns. These Conditions shall not be modified, except in writing signed or authenticated by all persons affected. 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.