Seller Terms

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY MAY HAVE CHANGED SINCE YOU LAST READ THEM.

These Terms of Service (the "TOS") set out the terms under which the Services are provided. Any sale set-up screen, order form, statement of work, or other document that incorporates this TOS is a "Sale Order"; a Sale Order may be presented digitally on the Platform, where it is called the "seller agreement"; the two names refer to the same document. A Sale Order together with this TOS is the "Agreement".

The party identified on a Sale Order is the "Seller". On acceptance of a Sale Order by Going Once LLC, a California limited liability company, California entity number B20260376217 ("Going Once"), this TOS attaches to that Sale Order and governs the Services provided under it. Acceptance may be by physical signature, electronic signature, clicking to accept, or other expressed intent.

Each Sale Order is a separate and independent agreement. This TOS applies to each severally, without aggregation or cross-application, so that a default or dispute under one Sale does not of itself affect another, save where this Agreement expressly provides otherwise, including the offset right in Section 3.6.

Bidders and buyers are governed by the Buyer Terms of Service. Where a Seller sells Goods for their owner, the Seller accepts each Sale Order as the consignor of the Goods, under the owner's written authority, as provided in Section 2.3.

ARTICLE 1: DEFINITIONS AND INTERPRETATION

1.1 Definitions

"Agreement" has the meaning given in the preamble.

"Applicable Law" means all statutes, regulations, ordinances, and orders of any Governmental Authority applicable to a Party or to a Sale, including the California Auctioneers and Auction Companies chapter (Civil Code § 1812.600 et seq.) and the Sales and Use Tax Law.

"Business Day" means a day other than a Saturday, a Sunday, or a day on which the Federal Reserve Banks are closed.

"Buyer" means a user whose bid on a Lot is the highest when that Lot closes.

"Buyer's Premium" means the amount charged to a Buyer in addition to the Hammer Price, at the percentage stated in the Sale Order.

"Buyer Terms" means the Buyer Terms of Service published on the Platform, as amended.

"Catalogue" means the record of Lots offered in a Sale, in draft or published form.

"Chargeback" means the reversal, recall, or repudiation of a payment made by a Buyer, whether by the Buyer's card issuer, by a payment network, by the Payment Processor, or by operation of law, and includes any associated fee.

"Claim" means any civil, criminal, administrative, regulatory, arbitral, or investigative demand, action, suit, proceeding, or other claim.

"Commission" means the percentage of the Hammer Price of each Lot Sold retained by Going Once, as stated in the Sale Order.

"Confidential Information" has the meaning given in Section 5.1.

"Consignor" means the person who owns the Goods offered in a Sale, or who is otherwise entitled to sell them, and for whom the Seller sells them as its agent. Where the Goods are the Seller's own, the Seller is the Consignor.

"Force Majeure" means an event beyond a Party's reasonable control that could not have been prevented by reasonable precautions and cannot reasonably be circumvented, including fire, flood, earthquake, epidemic, war, terrorism, civil disorder, failure of the public electricity or telecommunications network, and the lawful act of a Governmental Authority. It does not include a Party's inability to pay.

"Goods" means the personal property entered into a Catalogue and offered in a Sale.

"Governmental Authority" means any government, agency, commission, board, tribunal, regulator, or court having jurisdiction over a Party or over the subject matter of this Agreement.

"Gross Proceeds" means the aggregate Hammer Prices of all Lots Sold in a Sale, net of Refunds and Chargebacks. Gross Proceeds exclude the Buyer's Premium, Sales Tax, and any other amount charged to Buyers by Going Once in its own right.

"Hammer Price" means the winning bid on a Lot, exclusive of Buyer's Premium and Sales Tax.

"Hold Period" has the meaning given in Section 3.4.

"Intellectual Property Rights" means all patents, inventions, trademarks, service marks, trade dress, trade names, logos, domain names and associated goodwill, copyrights and copyrightable works, rights in data and databases, trade secrets and know-how, and all other intellectual property rights, registered or unregistered, together with all applications, renewals, and extensions, in any jurisdiction.

"Lot" means one or more items of Goods offered as a single unit of sale.

"Losses" means damages, fines, penalties, losses, liabilities (including settlements and judgments), costs, and expenses, including reasonable attorneys' fees and the costs of investigation and enforcement.

"Net Proceeds" means Gross Proceeds less Commission, less any minimum or other fee, and less any amount owing by the Seller to Going Once under this Agreement. Going Once bears the cost of payment processing, transfer, and bank fees on collecting from Buyers and on disbursement; none of it is deducted from Net Proceeds. Net Proceeds are calculated at the end of the Hold Period.

"Seller Content" has the meaning given in Section 2.7.

"Party" means Going Once or the Seller, and "Parties" means both.

"Payee" means the person the Seller designates on the Platform to receive the Net Proceeds of a Sale, who holds the Payee Account.

"Payee Account" means the account the Payee holds in its own name with the Payment Processor, opened through the Platform. It pays out to a bank account the Payee links to it only when Going Once instructs it to. It is not an account of Going Once.

"Payee's Share" means, of a Buyer payment, the Hammer Prices it pays less the Commission on them and any part of a minimum or other fee Going Once deducts from it.

"Payment Processor" means the third-party payment service used by Going Once to charge Buyers and disburse Net Proceeds.

"Personnel" means a Party's employees, contractors, and, in the case of the Seller, any person the Seller adds to a Sale on the Platform.

"Pickup Location" and "Pickup Window" mean the place and the periods at and during which Buyers must collect Lots Sold, as stated on the Sale.

"Platform" means the Going Once online auction platform, including this website, the mobile applications, all front-end and back-end technology, and all updates and enhancements.

"Refund" means an amount returned to a Buyer under the Buyer Terms or by agreement.

"Restricted Data" has the meaning given in Section 2.7(c).

"Sale" means a timed online auction conducted on the Platform under a Sale Order.

"Sale Order" has the meaning given in the preamble.

"Sale Rules" has the meaning given in Section 2.4.

"Sales Tax" means California sales and use tax, and any comparable tax, collected from Buyers.

"Services" has the meaning given in Section 2.2.

"Sold" means, of a Lot, that it received a bid and closed to a Buyer.

"Term" has the meaning given in Section 4.1.

1.2 Interpretation

(a) Currency. All amounts are in United States Dollars.

(b) Headings. Headings are for convenience only and do not affect interpretation.

(c) Including. "Including" and "includes" mean "including without limitation".

(d) No strict construction. The language is that chosen by the Parties to express their mutual intent, and no rule of strict construction applies against either Party.

(e) Number and gender. The singular includes the plural and vice versa, and words importing any gender include all genders.

(f) Time periods. A period is calculated excluding the day it commences and including the day it ends, and extends to the next Business Day if it would otherwise end on a day that is not one.

(g) Writing. Where notice or consent is required in writing, it may be given by courier, registered mail, or email.

(h) Conflict. In the event of conflict between a Sale Order and this TOS, this TOS prevails, except where the Sale Order expressly states that it overrides a specified provision.

ARTICLE 2: THE PLATFORM AND THE SALE

2.1 The Sale

On acceptance of a Sale Order, the Seller may use the Platform to catalogue Goods and offer them in a timed online auction. The Seller conducts the Sale. Going Once provides the Platform and the Services described in Schedule A and does not act as the Seller's employee, partner, or joint venturer.

2.2 The Services

"Services" means access to and use of the Platform for the purposes of a Sale, together with the services described in Schedule A.

2.3 Authority to sell

(a) The Seller may offer only Goods it is legally entitled to sell.

(b) Where the Seller sells Goods for a Consignor, the Seller represents and warrants that it holds the Consignor's written authority to offer and sell the Goods on the Platform on the terms of this Agreement, and must produce that written authority to Going Once on request. The Seller enters into this Agreement and each Sale Order as the consignor of those Goods, and is responsible to Going Once for any claim, by the Consignor or by anyone else, that the Seller did not hold that authority.

(c) The Catalogue of a Sale as published, and the dates of the Sale as published, form part of the Sale Order as the inventory of the Goods to be sold and the approximate dates on which they will be sold. Publishing a Sale is the Seller's confirmation of that inventory and those dates.

(d) The Seller may show the Consignor the Catalogue on the Platform before the Sale is published. No approval by the Consignor is a condition of the Sale being published or going live.

2.4 Sale Rules

The Seller must conduct each Sale in accordance with the following, together the "Sale Rules":

(a) Reserves. Every Lot that receives a bid is Sold to the highest bidder, unless the Lot carries a reserve, in which case it is Sold only where the bidding reaches that reserve. A reserve must be set before the Sale is published, must not be added, raised, or lowered once the Sale is live, and the Lot's listing must state that it carries one. Buying back a Lot, by any means, is not permitted.

(b) No self-bidding. The Seller must not bid on its own Sale, directly or indirectly, and must not encourage or assist any person to bid on its behalf or to move a price. The same applies to the Consignor, and the Seller must ensure that neither the Consignor nor anyone acting for the Consignor bids on the Goods.

(c) Accurate cataloguing. Descriptions, photographs, measurements, and condition notes must be true, accurate, and not misleading. Where the Platform provides tools that assist in generating descriptions, the Seller remains solely responsible for confirming the accuracy of these descriptions. Going Once is not responsible for their accuracy.

(d) No material change after publication. Once a Sale is live, the Seller must not materially change a Lot's description. Where a material error is discovered, Going Once may remove bids on the affected Lot, extend the closing time for that lot, or withdraw the lot from the Sale.

(e) Exclusivity during the Sale. Goods entered into a Catalogue must not be sold elsewhere while the Sale is live. If a Lot is sold outside the Platform during that period, the Seller must notify Going Once promptly, and the price obtained is added to Gross Proceeds for the purpose of calculating Commission.

(f) Prohibited items. The Seller must not list any prohibited item per Schedule C.

(g) Safe and accessible collection. The Pickup Location must be safe and accessible during each Pickup Window: a clear route, adequate lighting, no avoidable hazard, and a person present. Where a by-law, association rule, gated access, or other restriction may prevent, frustrate, or endanger collection, the Seller must resolve it or obtain the necessary consent before the Sale is published, and must disclose it to Going Once and to Buyers.

(h) Checking identity at collection. Before releasing the Lots on an invoice whose total, with the Buyer's Premium and Sales Tax, is more than $300, the Seller must see photo identification and the payment card used to pay that invoice, and check that the card's last four digits match those the Platform shows for it. Where a person collects in the Buyer's place, the Seller must instead see that person's photo identification and a photo of the card showing only its last four digits. If these cannot be shown, the Seller must not release the Lots. The Seller must not copy or keep a record of the identification or the card.

(i) Buyer information. Buyer information made available to the Seller may be used only to complete collection of the Lots that Buyer bought. It must not be retained after collection, used for marketing, or disclosed to any other person.

(j) Conduct. The Seller and its Personnel must deal with Buyers, Consignors, and Going Once Personnel civilly and in good faith.

(k) Breach of a Sale Rule. Where Going Once determines, acting reasonably, that a Sale Rule has been or may have been breached, it may suspend or terminate the Sale, suspend the Seller's access to the Platform, withhold amounts otherwise payable until the matter is resolved, or make such changes to the Sale as are necessary to bring it into compliance.

2.5 Personnel

The Seller may permit its Personnel to access the Platform for a Sale. The Seller is liable for their acts and omissions as for its own, must ensure they comply with this Agreement, and must promptly remove access when a person ceases to be authorised.

2.6 Platform restrictions

The Seller must not: remove or alter any proprietary notice on the Platform; use the Platform to build a substantially similar service; reverse-engineer, decompile, or disassemble it or attempt to discover its source code; tamper with or circumvent its security; republish or distribute any part of it except as its functionality permits; frame or mirror it without written permission; introduce malicious code; use any script or program to scrape, index, or extract any part of it without written permission; or take any action that unduly burdens its operation.

2.7 Seller Content and data

(a) "Seller Content" means content, images, descriptions, and data the Seller uploads or submits to the Platform. The Seller represents that it holds the rights necessary to do so, and grants Going Once a royalty-free, non-exclusive, worldwide licence to host, reproduce, adapt, display, and distribute it for the purpose of conducting and promoting the Sale, and to retain it as part of the records required by Section 2.9.

(b) The Seller retains all right, title, and interest in Seller Content, subject to that licence.

(c) The Seller must not submit government-issued identification numbers, financial account or payment card numbers, health information, or any category of information treated as sensitive under Applicable Law ("Restricted Data"), except where the Platform expressly requires it. No representation, warranty, or indemnity is given by Going Once in respect of Restricted Data submitted in breach of this Section.

2.8 Insurance

The Seller must maintain, at its own expense, for the duration of each Sale and through the Hold Period, insurance sufficient to cover: the value of the Goods; damage to property at the Pickup Location; and liability for injury to or death of any Buyer, any Buyer's companion, any of the Seller's or Going Once's Personnel, and any other person present at the Pickup Location. That insurance is primary in respect of the Goods and the Sale, must include a waiver of subrogation in favour of Going Once, and where appropriate must name Going Once as an additional insured. Evidence must be provided on request.

Where the Consignor rather than the Seller holds that insurance, the Seller must ensure the cover extends to the Seller's own activities in connection with the Sale, and must procure any additional cover required.

2.9 Records

Going Once maintains the records required of an auction company by Applicable Law, including the identity of the consignor and of each Buyer, a description of the Goods, the terms of each sale, and the money received and paid, for not less than the period required. The Seller must maintain its own records of its arrangements with the Consignor and produce them on reasonable request where required to answer a Claim, an audit, or an inquiry by a Governmental Authority.

ARTICLE 3: PROCEEDS, FEES, AND PAYMENT

3.1 Buyer's Premium and Sales Tax are not proceeds

The Buyer's Premium is charged by Going Once to the Buyer in its own right, is Going Once's revenue, and forms no part of Gross Proceeds or Net Proceeds.

Sales Tax collected from Buyers is at no time the property of the Seller or the Consignor. Going Once collects, holds, and remits it to the relevant Governmental Authority. It forms no part of Gross Proceeds or Net Proceeds and is not available for disbursement.

3.2 Commission and fees

Going Once retains the Commission stated in the Sale Order from the Hammer Price of each Lot Sold, together with any minimum fee and any other fee stated in the Sale Order or in Schedule B. Commission and fees are fixed for a Sale once it is published.

3.3 Collection from Buyers

Going Once invoices Buyers, charges them through the Payment Processor, and pursues non-payment in accordance with the Buyer Terms. Going Once does not guarantee that any Buyer will pay, and a Lot whose Buyer does not pay is not treated as Sold for the purpose of Net Proceeds. Going Once does not charge the Buyers of a Sale until the Payee has connected the Payee Account.

3.4 Hold Period

(a) Payout. Going Once instructs the payout from the Payee Account to the Payee's bank account no later than the end of the "Hold Period": twenty (20) Business Days after the last Pickup Window for the Sale ends, or, where the Sale has no Pickup Window, twenty (20) Business Days after Going Once first invoices its Buyers. Refunds, Chargebacks and adjustments arising before the payout are settled by deducting the amount from the Payee Account.

(b) Extension. Going Once may extend the Hold Period, with written reasons to the Seller, where a Pickup Window is moved, a Sale Rule has been breached, a Claim has been or is likely to be made, or an adjustment remains outstanding. No extension may run past thirty (30) Business Days after the first Lot of the Sale closes, except where legal proceedings, or an inability through no fault of Going Once to transfer title to the Goods or to comply with Applicable Law, compel the delay. That limit does not govern the Payment Processor's own settlement timing, or the share of a payment under a Chargeback (Section 3.6).

3.5 Payment of Net Proceeds

(a) Payment. Net Proceeds are paid to the Payee through the Payee Account under Section 3.4, from funds the Payment Processor has made available in it; after the payout the Payment Processor's and the bank's own timing applies. Payment to the Payee discharges Going Once's obligation to pay the Net Proceeds of the Sale to the Seller. Where the Payee is not the Seller, the Seller settles with the Consignor and the Payee separately, and Going Once is not party to those arrangements.

(b) Amounts owing. Going Once may deduct any amount the Seller owes it under this Agreement from the Payee Account before the payout. Any amount not so recovered is due at the end of the Hold Period and bears interest from then at the lesser of 12% per annum and the maximum rate permitted by Applicable Law.

3.6 Chargebacks and right of offset

(a) Before the payout. While a Chargeback on a Buyer payment is open, Going Once withholds the Payee's Share of that payment from the payout, and where the Chargeback is lost, deducts it from the Payee Account.

(b) After the payout. A Chargeback on a Buyer payment whose Payee's Share has been paid out of the Payee Account is repayable by the Seller to Going Once.

(c) Offset. The Seller irrevocably authorises Going Once to set off any amount owing under this Section or Section 3.7 against the Net Proceeds of that or any later Sale. Any amount not set off within thirty (30) days is payable on demand.

(d) Notice. Going Once will notify the Seller of each Chargeback, identifying the Lot and Buyer, and, where the timetable permits, give the Seller a reasonable opportunity to provide evidence to contest it.

3.7 Refunds attributable to the Seller

Where a Refund is made because a Lot was materially misdescribed, or because of any other breach of the Sale Rules by the Seller, the amount refunded and any associated fee are treated as amounts owing by the Seller and may be offset under Section 3.6.

3.8 Going Once as agent for receiving payment

The Seller appoints Going Once as its agent for the limited purpose of invoicing Buyers and receiving payment from them for Lots Sold, and, where the Seller acts for a Consignor, warrants that it holds the Consignor's authority to make that appointment on the Consignor's behalf. A Buyer's payment to Going Once discharges the Buyer's obligation to the Seller, and to the Consignor, for the Lot to the extent of the amount paid, whether or not Going Once has yet paid out the Payee's Share.

Going Once receives each payment for the Seller's account under this Agreement, which is in force before the Sale. It does not hold the payment for the Buyer, and nothing in this Agreement makes Going Once a bank, trust company, or escrow agent. This appointment is stated expressly for the purpose of Section 9.5.

ARTICLE 4: TERM AND TERMINATION

4.1 Term

A Sale Order commences on acceptance by Going Once and, unless it states otherwise, ends at the end of the Hold Period for that Sale (the "Term"). This TOS is coterminous with each Sale Order to which it attaches.

4.2 Termination by the Seller

The Seller may terminate a Sale Order at any time before the Sale goes live, without fee. Once a Sale is live it may not be terminated by the Seller, because bidders have relied on the Lots being offered; individual Lots may be withdrawn only with Going Once's agreement.

4.3 Termination by Going Once

Going Once may terminate a Sale Order before publication for any reason, and after publication where Section 2.4 permits or where a Party is in material breach.

4.4 Termination for breach

A Party may terminate a Sale Order where the other is in material breach and the breach is not cured within thirty (30) days of written notice, or fifteen (15) days in the case of non-payment. No cure period applies to a breach incapable of cure, or to insolvency, assignment for the benefit of creditors, or the appointment of a receiver or trustee over a Party.

4.5 Effect of termination

On termination: the Sale ends; amounts due to Going Once become immediately payable; rights granted under this Agreement cease; and each Party returns or destroys the other's Confidential Information. Termination does not affect obligations in respect of a Sale already concluded, which settles and disburses under this Agreement.

4.6 Survival

Article 1, Article 5, Article 6, Article 7, Article 8, Article 9, and Sections 2.5, 2.7, 2.9, 3.5, 3.6, 3.7, and 3.8 survive termination or expiry.

ARTICLE 5: CONFIDENTIALITY

5.1 Confidential Information and obligation of confidence

"Confidential Information" means non-public information disclosed by one Party (the "Disclosing Party") to the other (the "Receiving Party") that is marked or designated as confidential, or that a reasonable person would understand to be confidential. It includes Buyer information, bidding data, and the commercial terms of a Sale Order.

The Receiving Party may use Confidential Information only for the purposes of this Agreement, must not disclose it without the Disclosing Party's written consent, and may disclose it to its Personnel only as necessary and subject to equivalent obligations, remaining responsible for their compliance.

Confidential Information does not include information that: is or becomes public without breach; was known to the Receiving Party without restriction before disclosure, as its records show; was received from a third party not under an obligation of confidence; or was independently developed without use of or reference to the Confidential Information. The burden of establishing an exception rests with the Receiving Party.

5.2 Compelled disclosure

Disclosure required by law or court order is permitted, provided the Receiving Party gives prompt notice where lawful so that the Disclosing Party may seek a protective order, and discloses only the minimum required.

5.3 Remedies

The Parties acknowledge that breach of this Article may cause irreparable harm for which damages are an inadequate remedy, and that injunctive relief may be sought without proof of actual damage. Rights under this Article are cumulative and additional to any other remedy.

ARTICLE 6: PROPRIETARY RIGHTS

6.1 Going Once

Going Once retains all right, title, and interest, including all Intellectual Property Rights, in the Platform. No right to reproduce, modify, distribute, or otherwise exploit the Platform is granted except as expressly stated.

6.2 The Seller

The Seller retains all right, title, and interest, including all Intellectual Property Rights, in Seller Content, subject to the licence in Section 2.7.

6.3 Aggregated data

Going Once may collect and aggregate data derived from operation of the Platform, including the Seller's use of it. Such data will be de-identified so as not to identify the Seller, its Personnel, any Consignor, or any Buyer, and may be used to operate, monitor, and improve the Platform. Going Once owns that aggregated data.

6.4 Feedback

Suggestions for changes or improvements to the Platform or the Services are owned by Going Once, and the Seller will do what is reasonably necessary to give effect to that ownership.

ARTICLE 7: REPRESENTATIONS, WARRANTIES, AND INDEMNITIES

7.1 Mutual

Each Party represents that it has full power and authority to enter into this Agreement, that doing so breaches no other agreement or duty by which it is bound, and that this Agreement is a valid and binding obligation enforceable in accordance with its terms.

7.2 Seller representations

The Seller represents, in respect of all Goods offered in a Sale, that they: are owned by the Consignor or by a person entitled to sell them, and that ownership is not disputed; are lawful to sell in the jurisdiction of the Sale; do not infringe any third party's rights; and are free of any lien, charge, security interest, or other encumbrance not disclosed to Going Once in writing.

The Seller further represents that it holds every licence, permit, and registration its business requires, including any secondhand dealer or local business licensing that applies to it, and that it complies with the rules of the property at which the Sale is held.

Going Once may require evidence of compliance with this Section.

7.3 Indemnity

The Seller will defend Going Once and its officers, directors, employees, contractors, affiliates, successors, and assigns (each an "Indemnified Party") against any Claim, and indemnify them against all Losses, arising from or related to: a breach of Sections 2.3, 2.4, 2.6, 2.7, 2.8, or 7.2; Seller Content; injury, death, or property damage occurring at a Pickup Location; or any Claim by a Consignor arising from the Seller's arrangements with that Consignor.

The Seller may not settle any Claim without Going Once's written consent, not to be unreasonably withheld.

7.4 Indemnity procedure

The indemnity is conditional on the Indemnified Party promptly notifying the Seller in writing of the Claim (save that delay excuses the Seller only to the extent it is materially prejudiced), cooperating reasonably at the Seller's expense in the defence, and not admitting liability or settling without the Seller's consent, not to be unreasonably withheld.

ARTICLE 8: DISCLAIMERS AND LIMITATION OF LIABILITY

8.1 Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OF MEASUREMENTS OR OUTPUTS, OR THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.

GOING ONCE DOES NOT WARRANT THE OUTCOME OF ANY SALE. THE SELLER UNDERSTANDS THAT A SALE MAY RECEIVE NO BIDS, OR BIDS BELOW THE SELLER'S OR THE OWNER'S EXPECTATIONS, AND THAT EVERY LOT RECEIVING A BID IS SOLD TO THE HIGHEST BIDDER REGARDLESS OF PRICE.

THE GOODS ARE NOT AT ANY TIME IN GOING ONCE'S POSSESSION, CUSTODY, OR CONTROL. GOING ONCE DOES NOT STORE, TRANSPORT, HANDLE, OR INSURE THEM, AND IS NOT RESPONSIBLE FOR THEIR CONDITION, FOR THEIR LOSS OR DAMAGE, OR FOR ANYTHING OCCURRING AT A PICKUP LOCATION.

8.2 Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOING ONCE'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE COMMISSION AND FEES ACTUALLY RETAINED BY GOING ONCE UNDER THE SALE ORDER GIVING RISE TO THE CLAIM. THIS LIMIT IS CUMULATIVE AND NOT PER INCIDENT.

NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF GOODWILL, DAMAGE TO REPUTATION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY.

THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND EACH PARTY ACKNOWLEDGES THAT THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN.

8.3 Exclusions from the limitation

Sections 8.1 and 8.2 do not apply to: the Seller's indemnity obligations; the Seller's breach of Sections 2.4, 2.6, 2.7, or 7.2; either Party's breach of Article 5; either Party's gross negligence or wilful misconduct; or any liability that Applicable Law does not permit to be excluded or limited, including liability under California Civil Code § 1668.

ARTICLE 9: GENERAL

9.1 Entire agreement

This Agreement is the entire agreement between the Parties on its subject matter and supersedes all prior and contemporaneous communications, whether written or oral.

9.2 Governing law and venue

This Agreement is governed by the law of the State of California, without regard to its conflict of laws rules. Subject to Section 9.4, the Parties submit to the exclusive jurisdiction of the state and federal courts serving Napa County, California.

9.3 Force Majeure

A Party is excused from performance, other than a payment obligation, to the extent prevented by Force Majeure, provided it notifies the other promptly and uses commercially reasonable efforts to resume performance. Where a Force Majeure event affects a Sale in progress, Going Once may extend, reschedule, or reopen affected Lots in accordance with the Buyer Terms.

9.4 Dispute resolution

On written request of either Party, the Parties will meet and negotiate in good faith to resolve any dispute. If it is not resolved within thirty (30) days, either Party may pursue its remedies. Nothing in this Section prevents either Party from seeking injunctive relief.

9.5 Relationship

The Parties are independent contractors. Nothing creates a partnership, joint venture, agency, employment, or franchise relationship, and neither may bind the other, except as expressly stated in this Agreement.

9.6 Assignment

The Seller may not assign or transfer this Agreement, or delegate its obligations, without Going Once's written consent. Going Once may assign to an affiliate or in connection with a merger or sale of substantially all its assets.

9.7 Severability

If any provision is held invalid or unenforceable, it is modified to the minimum extent necessary to make it enforceable, or severed if it cannot be, and the remainder continues in full force.

9.8 No waiver

Failure to enforce a provision is not a waiver of it. A waiver must be in writing and applies only to the instance specified.

9.9 Notices

Notices must be in writing and given by personal delivery, courier, registered mail, or email with confirmation of receipt, to Going Once at its registered office with a copy to its published legal address, and to the Seller at the address on the Sale Order. Notice is effective on delivery, on the fifth Business Day after mailing, or on receipt of an email confirmation.

9.10 Counterparts and electronic execution

A Sale Order may be executed in counterparts and delivered electronically, each of which is an original and all of which together are one instrument.

9.11 Changes to this TOS

Going Once may amend this TOS. The amended version is published with an updated version date, and Going Once will make reasonable efforts to notify the Seller by email before a material change takes effect. Continued use of the Platform after the effective date constitutes acceptance. A Sale already published continues to be governed by the version in force when it was published. Every version is retained and the version governing any Sale can be identified.

9.12 Seller's own terms rejected

No term in any purchase order, invoice, or other document issued by the Seller is binding on Going Once, other than the identification of the Services, the term, the pricing, and the invoicing address. All such terms are expressly rejected.

SCHEDULE A: SERVICES

Going Once provides, in respect of each Sale:

1. Access to the Platform for cataloguing, publication, and conduct of the Sale.
2. Hosting of the Catalogue and the public sale pages, and inclusion in Platform-wide browsing and

search.

1. Acceptance and recording of bids; proxy bidding, under which the highest bidder may raise their

maximum bid or lower it, but never below the current bid; staggered closing; and extension of Lots receiving late bids.

1. Notification of the Sale to Platform subscribers who have opted in.
2. Invoicing of Buyers, collection of payment, and pursuit of non-payment under the Buyer Terms.
3. Calculation, collection, and remittance of Sales Tax.
4. Reporting: sale results, payout reconciliation, and sales tax reporting.
5. Disbursement of Net Proceeds in accordance with Article 3.

Going Once does not provide, unless a Sale Order says otherwise: cataloguing or photography of Goods; valuation or authentication; storage, transport, or handling of Goods; supervision of collection; or shipping.

SCHEDULE B: FEES

The Buyer's Premium is charged to Buyers and is not a Seller fee. Sales Tax is collected from Buyers and remitted to the state.

SCHEDULE C: PROHIBITED AND RESTRICTED ITEMS

This Schedule is the Prohibited Items list of the Seller Terms (Section 2.4(f)). It says what may not be sold on Going Once, and what may be sold only in the way described. It applies to every lot, and to every item inside a lot, including a box of mixed items. In this Schedule, "you" means the Seller and every person who catalogues Lots for the Seller, "we" and "us" mean Going Once, and "lot" and "sale" mean a Lot and a Sale.

The list is not complete. Anything that is illegal to sell under California or federal law is not allowed, whether or not it is named here. If you are not sure about an item, ask us before you list it.

We may remove a lot that breaks these rules at any time, including while the sale is live. If it has already sold, we may cancel the sale of that lot and refund the buyer.

1. Not allowed

Weapons

• Firearms of any age, including antique, inoperable and deactivated guns, frames, receivers and parts kits.
• Ammunition, gunpowder, primers and reloading supplies.
• BB, pellet and airsoft guns, and any replica or toy gun that could be mistaken for a real one.
• Switchblade knives, metal knuckles, throwing stars, and any other weapon California law prohibits.
• Stun guns and tear gas.

Animals and animal products

• Live animals of any kind, including fish.
• Ivory and rhinoceros horn in any form, including antiques, carvings and jewelry. Ask us about a musical instrument with ivory parts before listing it.
• Anything made from an animal California bans selling, such as polar bear, leopard, tiger, cheetah, jaguar, zebra, elephant, whale and sea turtle.
• Feathers, nests, eggs and mounted specimens of wild native birds, including eagles, hawks and owls.

Alcohol, tobacco and drugs

• Alcohol, including wine collections and sealed bottles.
• Tobacco, cigars, e-cigarettes and vaping products.
• Cannabis, CBD products and drug paraphernalia.
• Prescription and over-the-counter medicine, vitamins and supplements.
• Medical devices that need a prescription, such as CPAP machines, oxygen equipment and hearing aids.

Children's products

• Any product under a safety recall. Check cpsc.gov/recalls before listing children's items.
• Cribs, bassinets, cradles and inclined infant sleepers.
• Car seats and booster seats.
• Baby walkers.

Dangerous materials

• Fireworks, explosives and flares.
• Gas cylinders, including oxygen, welding, helium and scuba tanks. A standard barbecue propane tank is allowed.
• Fuel, pesticides, pool chemicals, solvents and paint, whether opened or sealed.
• Liquid mercury, and anything containing asbestos that is damaged or crumbling.

Food

• Food and drink of any kind, including canned and sealed goods and pet food.

Personal and financial items

• Identity documents, passports, driver's licenses, checks, bank cards, and papers with someone's personal information on them.
• Counterfeit money, and coins or bars sold as gold or silver that are not.
• Keys, remotes and access cards for the property or any other property.

Fakes and property the owner cannot sell

• Counterfeit or replica designer goods, and copies of branded items.
• Bootleg or home-copied music, films and software.
• Anything the owner of the goods does not have the right to sell, including items still under a loan or lease.

2. Allowed only as described

• Knives and swords. Kitchen knives, folding pocket knives, hunting knives and decorative swords are allowed. Automatic (switchblade) knives are not.
• Taxidermy, furs, hides and leather. The lot must say what animal it comes from, and it must not be an animal named in section 1 of this Schedule.
• Electronics and appliances. List them as untested unless you have tested them. Anything hardwired, plumbed in or connected to gas must be disconnected by a qualified person before pickup. Buyers may not disconnect anything.
• Computers, phones and tablets. Reset to factory settings and removed from the owner's accounts before cataloging. If that cannot be done, list the item for parts only, with the storage removed.
• Vehicles, boats and trailers. The title must be in the owner's or the estate's name with no loan against it, and the lot must say so. In California the seller must give the buyer a smog certificate for most vehicles.
• Used mattresses. Clean and free of stains, photographed without bedding, and described as used.
• Empty alcohol bottles and decanters. Photographed empty, with the lid off.
• Appraisals and certificates of authenticity. Only for the specific item in the lot, with any dollar value covered or removed. Do not state a retail price or an estimated value in a lot.
• Signed items and prints. Describe an item as signed only if it is signed by hand. A printed signature is described as printed.
• Toys, sports helmets and children's furniture not listed in section 1 of this Schedule. Allowed, with a note that they have not been checked against current safety standards.
• Boxes of mixed items. Photograph enough of the contents that a bidder can see what is in the box. Closed "mystery" boxes are not allowed.

3. Not allowed by our choice

These items are legal to sell, but Going Once does not sell them.

• Sexually explicit material. Art with nudity is allowed.
• Nazi memorabilia, and items whose purpose is to promote hatred of a group of people.
• Body armor.
• Used underwear and socks.