Mascus operates a global leading online equipment listing service for used
heavy machinery and trucks (“Equipment”)
where professionals such as Equipment dealers, brokers, manufacturers
and private sellers can advertise their Equipment for sale to
prospective buyers, post a wanted ad for Equipment
(each, an “Advertisement”)
or browse other Advertisements for Equipment to buy or sell. Mascus
makes trading in Equipment easier and more efficient by making
available information about supply and demand all in one place.
HOWEVER, WE, OUR AFFILIATES AND OUR LICENSE PARTNERS ARE IN NO WAY
INVOLVED IN THE TRANSACTION OR PURCHASE CONTRACT BETWEEN BUYERS AND
SELLERS. WE, OUR AFFILIATES AND OUR LICENSE PARTNERS ARE NEUTRAL, AND
AN ADVERTISEMENT IS IN NO WAY AN ENDORSEMENT OF THE SELLER OR THEIR
EQUIPMENT.
This page explains the terms and conditions by which you may visit our
websites and use our related mobile and web services and online tools
(collectively, the “Services”).
By accessing or using the Services, or by clicking a button or
checking a box marked “I agree” (or something similar),
you signify that you have read, understood, and agree to be bound by
these General Terms of Service (this “Agreement”),
and that you acknowledge the collection and use of your information
as set forth in our
Privacy Statement
and our
Cookie Notice
, whether or not you registered for a free account.
We reserve all rights to, in our sole discretion, modify this Agreement
in accordance with 13.3. This Agreement applies to all visitors
and registered users who access or use the Services, including those that pay for Services (“Users”).
Please read this Agreement carefully to ensure that you understand each
provision. This agreement contains a mandatory class action/jury
trial waiver provision by which you agree to the use of A BENCH TRIAL
on an individual basis to resolve disputes, and not to use jury
trials or class actions.
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Services
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Eligibility.
This is a contract between you and Mascus International B.V., or in
regions where Services are offered or operated by a local affiliate
or under license, between you and the applicable local affiliate
(the “Mascus Affiliate”) or applicable license holder
(the “License Partner”) - as identified for each such
region in the “Contact” details in the footer of
www.mascus.com - “we,” “our” or “us”.
You must read and agree to this Agreement before using the
Services. If you do not agree to this Agreement, you may not use
the Services. You may use the Services only in compliance with this
Agreement and all applicable local, state, national and
international laws, rules and regulations. Any use or access to the
Services by anyone under 18 is strictly prohibited and in violation
of this Agreement. The Services are not available to any Users we
have previously been removed or suspended from the Services.
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Access and Use.
Subject to your compliance
with the terms and conditions of this Agreement, you may access and
use the Services for your own professional and business purposes in
order to browse and interact with Advertisements, to upload, create
and list Advertisements, or to acquire and use other products and
services available via the Services, in each case subject to the
restrictions described in this Agreement, including without
limitation the restrictions set forth in Articles 1.3 and 2 below.
The Services are not designed for personal, family or household
uses. We reserve all rights not expressly granted in this Agreement
in and to the Services and the Intellectual Property (defined
below). In addition to our other rights under this Agreement, we
may suspend or terminate your access to the free Services at any
time for any reason or no reason.
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Restrictions; Unauthorized Use.You will not, and you will not assist, permit or enable others to, do any of the following:
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use the Services for any purpose other than as expressly set forth in
Article 1.2 above;
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disassemble, reverse engineer, decode or decompile any part of the Services,
including, without limitation, the online financing calculator and
algorithmic pricing tools, that is not open source or except where
permitted by applicable law;
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use any robot, crawler, spider, scraper, data mining tool, data
gathering or extraction tool, or any other automated means, to
access, collect, use, copy or record the Services or any content,
including without limitation to
extract or reuse all or a substantial part of the Listings Data (as defined
below) or to repeatedly and systematically extract or reuse
insubstantial parts of the Listings Data,
other than if you are a general internet search engine (i.e. Google and
not specific to Equipment) or non-commercial archival services;
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copy, rent, lease, sell, transfer, assign, sublicense, modify, alter,
hyperlink to or create derivative works of any part of the
Services, any of our Intellectual Property or any Listings Data
(other than your own or subject to the terms of a separate written
agreement with us);
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remove any copyright notices or proprietary legends from the Services;
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take photos, screenshots or other images of the Services or otherwise
extract reports and other output of the Services, other than
records of your Advertisements, message history and any other
content or reports that you take via any download and related
functionality provided on or by the Services
(“User Account History and Content”);
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use the Services in a manner that impacts (i) the stability of our
servers, (ii) the operation or performance of the Services or any
other User’s use of the Services, or (iii) the behavior of
other applications using the Services;
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use the Services in any manner or for any purpose that violates any
applicable law, regulation, legal requirement or obligation,
contractual obligation, or any right of any person including, but
not limited to, anti-spam rules, database and intellectual property
rights, rights of privacy and/or rights of personality, or which
otherwise may be harmful (in our sole discretion) to us, our
providers, our suppliers or Users;
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use the Services in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
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use the Services for benchmarking or competitive analysis of the Services;
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attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running the Services;
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transmit viruses, worms or other software agents through the Services;
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impersonate another person or misrepresent your affiliation with a person or
entity, hide or attempt to hide your identity, or otherwise use the
Services for any invasive or fraudulent purpose, including, for
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share passwords or authentication credentials for the Services;
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bypass the measures we may use to prevent or restrict access to the
Services or enforce limitations on use of the Services or the
content therein, including without limitation features that prevent
or restrict use or copying of any content;
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identify us or display any portion of the Services on any site or service
that disparages us or our products or services, or infringes any of
our Intellectual Property or other rights;
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identify or refer to us or the Services in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of the Services under this Agreement, without our prior express written consent; or
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use any of the contact information relating to Users available in an Advertisement for any purpose other than to contact a User about the Equipment in the Advertisement.
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User Accounts.
Your free account on the Services (your “User Account”)
gives you access to the free and paid Services and functionality
that we may establish and maintain from time to time and in our
sole discretion. For example, User Account holders can, subject to
all of the terms and conditions of this Agreement, including
without limitation the restrictions set forth in
Articles 1.3 and
2:
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place and update Advertisements;
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access additional paid Services for professionals, such as e-mail and publishing tools, Advertisement analysis and reporting, Facebook add-ons and more;
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interact with third party providers offering equipment-related products and services, such as financing or transportation;
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access and retrieve User Account History and Content; and
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sign-up to receive email updates about new products and services offered by us or new listings from sellers you choose to follow.
We may maintain different types of User Accounts for
professional/corporate Users and private seller Users. If you open a
User Account on behalf of a company, organization, or other entity,
then (i) “you” includes you and that entity, (ii) you
represent and warrant that you are an authorized representative of
the entity with the authority to bind the entity to this Agreement,
and (iii) you agree to this Agreement on the entity’s behalf.
You may never use another User’s User Account without permission.
When creating your User Account, you must provide accurate and
complete profile information, and you must keep this information
current. You are solely responsible for the activity that occurs on
your User Account, and you must keep your User Account password
secure. We encourage you to use “strong” passwords
(passwords that use a combination of upper and lowercase letters,
numbers and symbols) with your User Account. You must notify us
immediately of any breach of security or unauthorized use of your
User Account. We will not be liable for any losses caused by any
unauthorized use of your User Account.
You may control your User profile and how you interact with the Services
by changing the settings in your settings page. By providing us your
email address you agree to our using the email address to send you
Service-related notices, including without limitation any notices
required by law, in lieu of communication by postal mail. Where the
law permits, we may also use your email address to send you other
messages, such as changes to features of the Services and special
offers. If you do not want to receive such email messages, you may
opt out. Opting out may prevent you from receiving email messages
regarding improvements, equipment, events and offers; however, opting
out will not prevent you from receiving Services-related notices.
You acknowledge that you do not own the User Account you use to access
the Services. You agree that we have the absolute right to manage,
regulate, control, transfer, modify and/or eliminate any data stored
by us or on our behalf on our (including without limitation on our
third party hosting providers’) servers as we see fit in our
sole discretion, in any general or specific case, and that, subject
to any Product Specific Agreement (as defined below) we will have no
liability to you based on our exercise of such right.
Notwithstanding any value attributed to such data by you or any third party, you
understand and agree that, SUBJECT TO ANY Product Specific Agreement,
any data, User Account history and content and user and system data
(DEFINED BELOW) residing on our servers, may be deleted, altered,
moved or transferred at any time for any reason in our SOLE
discretion, with or without notice and with no liability of any kind.
We do not provide or guarantee, and expressly disclaim, any value,
cash or otherwise, attributed to any data residing on our servers.
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User and System Data.
As part of your use and interaction with the Services, we will collect
data, metadata, content and information, including without
limitation unique identifiers, that you provide to us or that is
collected by us or via the Services (“User and System Data”). You
hereby grant to us, and represent and warrant that you have all
rights necessary to grant to us, a perpetual, irrevocable,
non-exclusive, sublicensable, transferable and royalty-free right
and license to collect, use, reproduce, electronically distribute,
transmit, have transmitted, perform, display, store, archive, and
to modify and make derivative works of any and all User and System
Data in order to provide and maintain the Services, including
without limitation the making available to you of your User Account
History and Content, and, solely in de-identified or aggregate
form, to report on and improve our products and Services and for
our other business purposes specified in our
Privacy Statement
(and any and all such data derived therefrom is deemed part of our Intellectual Property).
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Changes to the Services.
Subject to any Product Specific Agreement, we may, without prior notice,
change the Services, stop providing the Services or features of the
Services, to you or to Users generally, create usage limits for the
Services, or suspend delivery for maintenance or other reasons
specified in this Agreement. Subject to any Product Specific
Agreement, we may permanently or temporarily terminate or suspend
your access to the Services without notice and liability for any
reason, including without limitation if in our sole determination
you violate any provision of this Agreement, or for no reason. Upon
termination of access for any reason or no reason, you continue to
be bound by this Agreement.
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Interactions with Other Users.
You are solely responsible for your direct interactions with other
Users. We will have no liability for your direct interactions with
other Users, or for any User’s action or inaction. We are not
a party to your transactions with a buyer, seller or third party
provider established through the Service. All Advertisement content
is supplied by the seller and we do not warrant or guarantee its
accuracy or authenticity. We encourage all Users to conduct
appropriate checks of the Equipment and sellers prior to
purchasing. To assist, we’ve put together some helpful
security tips
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Export Control.
You are entirely responsible for compliance with all applicable local
laws and regulations relating to export, re-export and import
regulations. You may not use the Services if you are a resident of
a country embargoed by the United States, or are a foreign person
or entity blocked or denied by the United States government or
under similar laws or regulations applicable in other
jurisdictions.
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Additional Terms for Paid Services.
Placing an Advertisement to sell or buy Equipment is subject to the additional advertising
rules specified in Article 4 (the “
Listing Rules”).
If you subscribe for recurring monthly listing Services, you may
be required to enter into a separate listing agreement or order
form (a “
Listing Agreement”),
which when signed, or otherwise agreed to, remains subject to this
Agreement, including without limitation, the Listing Rules. In
addition to listing services, certain other paid Services, such as
access to valuation Services, require those Users to enter into a
separate subscription services agreement (a “
Subscription Services Agreement”),
which when signed, or otherwise agreed to, incorporates this
Agreement. To the extent of a conflict between this Agreement and a
Listing Agreement or Subscription Services Agreement (each a “
Product Specific Agreement”),
the terms of the Product Specific Agreement will prevail.
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Listings Data; Permitted Uses; Restrictions
Advertisements contain and display data, information, images, tradenames, logos and
other content relating to the Equipment advertised for sale,
including but without limitation descriptions, pricing, and seller
contact information (“Listings Data”). Other than
Listing Data contained in your Advertisements or subject to the terms
of a separate access agreement with us, as a User, you may only
access and use Listings Data while available in the format and
arrangement we provide through the Services for the following limited
purposes: (i) in order to review, compare and assist in you in
determining whether to buy the Equipment advertised or similar
equipment elsewhere in the market; (ii) to communicate with the
seller to inquire about, negotiate or complete the purchase of the
Equipment advertised, or (iii) to help you determine whether to sell
your own similar Equipment via the Services such as, for example,
determining the potential price to charge for your Equipment or the
appropriate time to sell (the “Permitted Uses”). With respect to
Listings Data, you will not, and you will not permit any third party
to, use any Listings Data in any manner or for any purpose other than
the Permitted Uses, without our prior express written consent. For
clarity, and without limiting the foregoing, the following activities
are not permitted:
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recording, copying or storing any Listing Data in any manner or for any purpose whatsoever, other than for the Permitted Uses;
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directly or indirectly publishing, transmitting or distributing Listings Data, or any derivative works thereof including but not limited to reports or other analyses regarding the secondary equipment market, in any manner for any form of monetary or other valuable consideration; or
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incorporating Listing Data in any manner into used equipment pricing tools, dashboards or other visualization products.
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Our Proprietary Rights
You acknowledge and agree that the Services and all materials therein or
transferred thereby, including, without limitation, Listings Data and
all other videos, audio, images and other content and information
displayed, arranged or made available on the Services, and all
software, algorithms, code and technology underlying the Services,
and all intellectual property rights therein and thereto throughout
the world (collectively and individually, “Intellectual Property”),
are Mascus International B.V.’s, or its licensors’ (as applicable),
sole and exclusive property. Except as explicitly provided herein,
nothing in this Agreement will be deemed to create a license in or
under any intellectual property rights, and you agree not to access,
sell, license, rent, modify, distribute, copy, reproduce, transmit,
publicly display, publicly perform, publish, adapt, edit or create
derivative works from any Intellectual Property. Use of Intellectual
Property for any purpose not expressly permitted by this Agreement is
strictly prohibited.
You may choose to, or we may invite you to submit, comments or ideas
about the Services, including without limitation about how to improve
the Services or our products (“Ideas”).
By submitting any Idea, you agree that your disclosure is gratuitous,
unsolicited and without restriction and will not place us under any
fiduciary or other obligation, and that we are free to use the Idea
without any additional compensation to you, and/or to disclose the
Idea on a non-confidential basis or otherwise to anyone. You further
acknowledge that, by acceptance of your submission, we do not waive
any rights to use similar or related ideas previously known to us, or
developed by our employees, or obtained from sources other than you.
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Listing Rules
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Advertisement Duration.
Self-listed Advertisements will be published for the length of
time you select and pay for when posting your Advertisement.
Advertisements created and uploaded by other means will be
published for the length of time agreed to in the applicable
Listing Agreement. If your Equipment sells, it is your
responsibility to remove the Advertisement using the functionality
available in your User Account or to notify us so that the
Advertisement can be removed.
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Advertisement Fees.
Fees to publish self-listed Advertisements and any add-on Services
are based on the then-current price list made available to you
before publication and publication is conditional on payment being
made in full by way of our approved means of payment. We use Adyen
N.V. as our third-party service provider for payment services. By
using the self-list Services, you agree to be bound by any terms of
use for the Ayden service as we may make available to you from time
to time. Please visit https://www.adyen.com/ for more information.
Fees for non-self-listed Advertisements and any add-on Services
will be mutually agreed between you and us prior to the first
publication of the Advertisements and will be specified in a
Listing Agreement, if any. Invoices generated are payable without
setoff whatsoever upon receipt by way of our approved means of
payment. Subject to Article 4.10, once an Advertisement
is published, the associated fees are non-refundable.
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Taxes; Interest; Other Costs.
All fees payable for Services are exclusive of any applicable
sales, use, value added or goods and services taxes, customs
duties, withholding taxes or similar levies of any kind, including
interest and penalties thereon. If any amount payable is not
received by us within thirty (30) days of receipt, we may (i)
condition future agreements on shorter or alternate payment terms;
and (ii) charge late payment fees or interest at the lower of 12%
per annum or the maximum permitted by applicable law. Any judicial
and extrajudicial costs of collection for unpaid amounts will be
borne by you.
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Advertisement Content.
Advertisements listed on the Services must: (a) be
for Equipment you are authorized or have the power to sell; (b)
have accurate Listing Data; (c) fairly represent the condition of
the Equipment and not attempt to mislead; (d) only relate to one
unit of Equipment and not be a duplicate; (e) only promote the
Equipment for sale, not other products or services; (f) not
infringe any third party rights, including without limitation
intellectual property rights such as patents, copyrights, moral
rights, trade secrets, trademarks, service marks, inventions,
design rights and any other proprietary rights provided under
applicable law in respect of intellectual property; and (g) not
contain any discriminatory, offensive or threatening content.
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Advertisement Placement.
Advertisements may only be
created and uploaded through means approved by us. Other than the
self-list option available to all User Accounts, Advertisements may
be uploaded via: (a) an RB Asset Solutions inventory management
system supplied by Mascus International B.V. or a Mascus Affiliate;
(b) automated import tools supplied by a License Partner; (c)
application programming interfaces (APIs) supplied by one of our
partners that either we make available to you or with whom we both
have an independent relationship; or (d) any other automated means
approved by us in writing. Advertisements of Equipment designated
in your RB Asset Solutions inventory management system for listing
on the Services will be created by pulling the Listing Data,
including using the pictures, Equipment details and contact
information, from your system. Due to intervals to index data and
safety measures, the contents of Advertisements are not immediately
visible online.
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Necessary Rights.
You represent and warrant that you have acquired and will maintain
all necessary rights and permissions to the Listings Data,
including any releases or permission from individual seller
contacts, to permit creation of your Advertisement, its upload to,
and display through, the Services and to grant us the rights to use
and otherwise process Listings Data as specified in this Agreement.
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Review by Mascus.
We have the right, but not obligation, to review each Advertisement
for suitability prior to or after publication. If we determine,
acting reasonably, that your Advertisement is not suitable or
otherwise violates this Agreement, you will be contacted by email.
Notwithstanding the foregoing, we reserve the right, without
liability, to delay publication or remove from publication any
Advertisement that we determine, acting reasonably, is not suitable
or otherwise violates this Agreement. If your Advertisement is
removed prior to publication, you will be entitled to a refund of
the fees paid for such Advertisement so long as removal was not due
to your fraudulent, deceptive or unlawful conduct.
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License to Use.
When creating or uploading Advertisements, You hereby grant us a
perpetual, irrevocable, non-exclusive, sublicensable, transferable
and royalty-free right and license to collect, use, reproduce,
distribute, transmit, perform, display, store, archive, and to
modify and make derivative works of any and all Listings Data
associated with your Advertisements in order to provide, maintain,
secure and improve the Services, including without limitation to
market and promote your Advertisements using such layouts and user
interfaces for the Services as we determine appropriate in our sole
discretion, to prohibit or permit use and access by other Users of
the Listing Data in accordance with the Agreement, and in
de-identified or aggregate form, to develop and support our
products and services and for our other business purposes (and any
and all such data derived therefrom is deemed part of our
Intellectual Property).
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Advertising on Other Channels.
You acknowledge and agree that as part of the Services we may
provide third parties with access to all or part of an
Advertisement for publicity purposes allowing the third party to
promote the Advertisement in combination with other ads on third
party websites, via email or other advertising channels or mediums.
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Waiver of Statutory Reflection Period.
While the Services
are not designed for personal, family or household use, we
acknowledge that in certain jurisdictions, private seller Users may
be entitled to certain statutory rights when self-listing
Advertisements. Such self-listing private seller Users hereby
acknowledges that by submitting an Advertisement for publication,
the User expressly agrees to commencement of the contract for
Services immediately and thereby waives any statutory cooling-off
or reflection period the User may have been entitled to.
Notwithstanding the foregoing, should a private seller User wish to
cancel a self-listed Advertisement prior to the selected expiry
date and receive a prorated refund, the User may submit a request
in writing to us containing the following information:
Model Cancellation Form
To: Mascus International BV
Vijzelstraat 68-78
1017 HL Amsterdam
(Region: Noord-Holland)
Netherlands
I hereby wish to cancel our agreement for the provision of the online self-listing services made on [enter date].
[Name of consumer]
[Consumer’s address]
[Consumer’s signature]
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Non-Mascus Applications.
APIs and other approved automated means supplied by one of our partners
(“Non-Mascus Applications”)
are made available for use by their respective providers and may be
subject to their own terms and conditions. If the provider ceases
to make the Non-Mascus Applications available for interoperation
with the Services or does so on terms we deem to be unreasonable
(i.e. cancels service, uses old integration methods or inadequate
security protocols), we may modify, suspend or cease providing such
interoperability with features of the Services. You will not be
entitled to any refund, credit or other compensation. In such
case, if such alteration, suspension or cessation is not acceptable
to you, then your sole and exclusive remedy is to terminate your
agreement with us for Services.
UNDER NO CIRCUMSTANCES WILL WE BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR OTHER DAMAGES
WHATSOEVER THAT RESULT FROM USAGE OF ANY NON-MASCUS APPLICATIONS OR
YOUR CONTRACTUAL RELATIONSHIP WITH ANY PROVIDER OF A NON-MASCUS
APPLICATION.
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Force Majeure.
We (and the Mascus Listing Provider, if not us), will not be liable
for any delay or failure to perform the paid Services resulting from
any cause beyond its reasonable control (a “Force Majeure Event”),
including but not limited to fires, explosions, earthquakes,
floods, epidemics, industry-wide strikes, work stoppages or
slow-downs or other industrial disputes, accidents, riots or civil
disturbances, acts of civil or military authorities, interruption
of electricity, Internet, or means of telecommunication, and your
or any third-party applications or systems.
Any time periods for the performance of its obligations are
automatically extended for the duration of the Force Majeure Event,
provided that you receive prompt notice in writing and we (or the
Mascus Listing Provider, if not us) use(s) all commercially
reasonable efforts to resume performance as soon as possible.
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Additional Terms for Mobile Applications
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Mobile Applications.
We may make available software to access the Services via a mobile
device (“Mobile Applications”).
To use any Mobile Applications, you must have a mobile device that
is compatible with the Mobile Applications. We do not warrant that
the Mobile Applications will be compatible with your mobile device.
You may use mobile data in connection with the Mobile Applications
and may incur additional
charges from your wireless provider for these services. You agree
that you are solely responsible for any such charges.
We hereby grant you a non-exclusive, non-transferable, revocable
license to use a compiled code copy of the Mobile Applications on
one or more mobile devices owned or leased solely by you, solely
for your personal use. You may not: (i) modify, disassemble,
decompile or reverse engineer the Mobile Applications, except to
the extent that such restriction is expressly prohibited by law;
(ii) rent, lease, loan, resell, sublicense, distribute or otherwise
transfer the Mobile Applications to any third party or use the
Mobile Applications to provide time sharing or similar services for
any third party; (iii) make any copies of the Mobile Applications;
(iv) remove, circumvent, disable, damage or otherwise interfere
with security-related features of the Mobile Applications, features
that prevent or restrict use or copying of any content accessible
through the Mobile Applications, or features that enforce
limitations on use of the Mobile Applications; or (v) delete the
copyright and other proprietary rights notices on the Mobile
Applications. You acknowledge that we may from time to time issue
upgraded versions of the Mobile Applications, and may, where your
device settings permit, automatically electronically upgrade the
version of the Mobile Applications that you are using on your
mobile device. You consent to such automatic upgrading on your
mobile device, and agree that the terms and conditions of this
Agreement will apply to all such upgrades. Any third-party code
that may be incorporated in the Mobile Applications is covered by
the applicable open source or third-party license terms, if any,
authorizing use of such code. The foregoing license grant is not a
sale of the Mobile Applications or any copy thereof, and we or our
third-party partners or suppliers retain all right, title, and
interest in the Mobile Applications (and any copy thereof). Any
attempt by you to transfer any of the rights, duties or obligations
hereunder, except as expressly provided for in this Agreement, is
void. We reserve all rights not expressly granted under this
Agreement. If the Mobile Applications are being acquired on behalf
of the United States Government, then the following provision
applies. The Mobile Applications will be deemed to be “commercial
computer software” and “commercial computer software
documentation,” respectively, pursuant to DFAR Section
227.7202 and FAR Section 12.212, as applicable. Any use,
reproduction, release, performance, display or disclosure of the
Services and any accompanying documentation by the U.S. Government
will be governed solely by this Agreement and is prohibited except
to the extent expressly permitted by this Agreement. The Mobile
Applications are subject to United States export laws and
regulations. The Mobile Applications may not be exported or
re-exported to certain countries or those persons or entities
prohibited from receiving exports from the United States. In
addition, the Mobile Applications may be subject to the import and
export laws of other countries. You agree to comply with all United
States and foreign laws related to use of the Mobile Applications
and the Services.
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Mobile Applications from Apple App Store.
The following applies to any Mobile Applications you acquire from the Apple App Store
(“Apple-Sourced Software”):
You acknowledge and agree that this Agreement is solely between you
and us, not Apple, Inc. (“Apple”)
and that Apple has no responsibility for the Apple-Sourced Software
or content thereof. Your use of the Apple-Sourced Software must
comply with the App Store terms of use. You acknowledge that Apple
has no obligation whatsoever to furnish any maintenance and support
services with respect to the Apple-Sourced Software. In the event
of any failure of the Apple-Sourced Software to conform to any
applicable warranty, you may notify Apple, and Apple will refund
the purchase price for the Apple-Sourced Software to you; to the
maximum extent permitted by applicable law, Apple will have no
other warranty obligation whatsoever with respect to the
Apple-Sourced Software, and any other claims, losses, liabilities,
damages, costs or expenses attributable to any failure to conform
to any warranty will be solely governed by this Agreement and any
law applicable to us as provider of the software. You acknowledge
that Apple is not responsible for addressing any claims of you or
any third party relating to the Apple-Sourced Software or your
possession and/or use of the Apple-Sourced Software, including, but
not limited to: (i) product liability claims; (ii) any claim that
the Apple-Sourced Software fails to conform to any applicable legal
or regulatory requirement; and (iii) claims arising under consumer
protection or similar legislation; and all such claims are governed
solely by this Agreement and any law applicable to us as provider
of the software. You acknowledge that, in the event of any
third-party claim that the Apple-Sourced Software or your
possession and use of that Apple-Sourced Software infringes that
third party’s intellectual property rights, we, not Apple,
will be solely responsible for the investigation, defense,
settlement and discharge of any such intellectual property
infringement claim to the extent required by this Agreement. You
and we acknowledge and agree that Apple, and Apple’s
subsidiaries, are third-party beneficiaries of this Agreement as
relates to your license of the Apple-Sourced Software, and that,
upon your acceptance of the terms and conditions of this Agreement,
Apple will have the right (and will be deemed to have accepted the
right) to enforce this Agreement as relates to your license of the
Apple-Sourced Software against you as a third-party beneficiary
thereof.
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Mobile Applications from Google Play Store.
The following applies
to any Mobile Applications you acquire from the Google Play Store
(“Google-Sourced Software”):
(i) you acknowledge that this Agreement is between you and us only,
and not with Google, Inc. (“Google”);
(ii) your use of Google-Sourced Software must comply with Google’s
then-current Google Play Store terms of use; (iii) Google is only a
provider of the Google Play Store where you obtained the
Google-Sourced Software; (iv) we, and not Google, are solely
responsible for Google-Sourced Software; (v) Google has no
obligation or liability to you with respect to Google-Sourced
Software or the Agreement; and (vi) you acknowledge and agree that
Google is a third-party beneficiary to the Agreement as it relates
to our Google-Sourced Software.
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Privacy
We care about the privacy of our Users. We store our data on servers
located in Europe. Unless otherwise agreed to by us in writing, we
are a controller of the information collected and processed by the
Services. You understand that by using the Services we will collect
and process your personal information and aggregate and/or anonymized
data as set forth in our
Privacy Statement
. In certain regions of the world, some of our paid-Services are sold
through License Partners with whom we’ve entered into
contractual arrangements. Information processed by License Partners
is governed by our contractual arrangements and their respective
privacy policies. In other regions, some of our paid Services are
sold by Mascus Affiliates (who are part of our corporate family with
whom we may also have contractual arrangements). We and they also use
third party service providers to perform functions in connection with
the Services. Pursuant to applicable laws and regulations, we rely on
a variety of measures to support the lawful transfer of or access to
your information in regions outside of Europe. We also use
contractual and technological means to limit processing of
information to only what is needed to deliver the Services. Where
you engage with a third party seller or buyer in relation to an
Advertisement or request the services of a third party directly
through the Services (such as accessories, transport or financing) we
will transfer your information to that third party for that purpose
in accordance with your engagement or request. You also acknowledge
and agree that by including your email address and other contact
information in an Advertisement, you are making such information
publicly available so that interested Users can contact you. In
addition, by using the messaging and contact features, you
acknowledge that we may collect and store such communications as part
of User and System Data.
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Security
We care about the integrity and security of the information we handle.
We have implemented and follow an information security policy,
including physical, managerial and technical safeguards deemed
appropriate by us in our sole direction, designed to preserve the
integrity and security of that information. However, we cannot
guarantee that unauthorized third parties will never be able to
defeat our security measures or use your information for improper
purposes. You acknowledge that you provide your information at your
own risk. As mentioned above, review our helpful
security tips
to help protect yourself online.
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Disclaimer of Third-Party Links and Materials
The Services may contain third-party materials or links to third-party
materials that WE Do not own or control. We do not endorse or assume
any responsibility for any such third-party sites, information,
materials, products or services. If you access a third-party website
or service from the Services or share your Data OR INFORMATION on or
through any third-party website or service, you do so at your own
risk, and you understand that this Agreement and our Privacy
Statement do not apply to your use of such sites. You expressly
relieve us from any and all liability arising from your use of any
third-party website, service or content. Additionally, your dealings
with THIRD-PARTY PROVIDERS found on the Services, including BUT NOT
LIMITED TO the payment for and delivery of goods or service by them,
and any other of their terms (such as warranties) are solely between
you and such PROVIDER. You agree that we will not be responsible for
any loss or damage of any sort relating to your dealings with such
PROVIDERS.
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Indemnity
You will defend, indemnify and hold us and our affiliates, agents,
License Partners, suppliers or licensors (and our and their
employees, contractors, agents, officers and directors) harmless from
and against any and all claims, damages, obligations, losses,
liabilities, costs or debts, and expenses (including but not limited
to attorney’s fees) arising from or related to: (i) your use of
and access to the Services, including without limitation any data or
content transmitted or received by you; (ii) your violation of any
term of this Agreement, including without limitation any of the
representations and warranties above; (iii) your violation of any
third-party right, including without limitation any right of privacy
or intellectual property rights; (iv) your violation of any
applicable law, rule or regulation; (v) your use of the Services or
Listings Data in any manner not expressly authorized by this
Agreement, including without limitation your breach of any of the
restrictions applying to your use of the Services or Listings Data as
set forth in
Articles 1.3 or
2
above, respectively; (vi) your gross negligence or willful
misconduct; or (vii) any third party’s access and use of the
Services with your unique username, password or other appropriate
security code.
-
No Warranty
The Services are provided on an “as is” and “as
available” basis. Use of the Services is at your own risk. To
the maximum extent permitted by applicable law, the Services ARE
provided without warranties of any kind, whether express or implied,
including, but not limited to, implied warranties of merchantability,
fitness for a particular purpose, or non-infringement. No advice or
information, whether oral or written, obtained by you from US or
through the Services will create any warranty not expressly stated
herein. Without limiting the foregoing, we, our subsidiaries, our
affiliates, AND OUR LICENSE PARTNERS do not warrant that ANY content
OR INFORMATION ACCESSED THROUGH THE SERVICES is accurate, reliable or
correct; that the Services will meet your requirements; that the
Services will be available at any particular time or location,
uninterrupted or secure; that any defects or errors will be
corrected; or that the Services ARE free of viruses or other harmful
components. Any content downloaded or otherwise obtained through the
use of the Services is downloaded at your own risk and you will be
solely responsible for any damage to your computer system or mobile
device or loss of data that results from such download or your use of
the Services. We make
no guarantee that you will actually transact equipment or realize any
particular value derived from a transaction.
Federal and national law, some states, provinces and other jurisdictions do
not allow the exclusion and limitations of certain implied
warranties, so the above exclusions may not apply to you. This
Agreement gives you specific legal rights, and you may also have
other rights which vary from jurisdiction to jurisdiction. The
disclaimers and exclusions under this Agreement will not apply to the
extent prohibited by applicable law.
-
Limitation of Liability
To the maximum extent permitted by applicable law, in no event will we
or our affiliates, agents, LICENSE PARTNERS, SUPPLIERS OR LICENSORS
(OR OUR OR THEIR employees, contractors, agents, officers or
directors), be liable for any indirect, punitive, incidental, special,
consequential or exemplary damages, including without limitation
damages for loss of profits, goodwill, use, data or other intangible
losses, arising out of or relating to the use of, or inability to
use, the Services. Under no circumstances will we be responsible for
any damage, loss or injury resulting from SPAMMING, PHISHING, hacking
or tampering of your devices or systems and any corresponding
unauthorized access or use of the Services or your USER account or
the information contained therein.
To the maximum extent permitted by applicable law, we assume no
liability or responsibility for any (i) errors, mistakes, or
inaccuracies of content; (ii) personal injury or property damage, of
any nature whatsoever, resulting from your access to or use of the
Services; (iii) any unauthorized access to or use of our secure
servers and/or any and all personal information stored therein; (iv)
any interruption or cessation of transmission to or from the
Services; (v) any bugs, viruses, trojan horses, or the like that may
be transmitted to or through the Services by any third party; (vi)
any errors or omissions in any content or for any loss or damage
incurred as a result of the use of any content posted, emailed,
transmitted, or otherwise made available through the Services; (vii)
USE OF LISTINGS DATA OR OTHER USER ACCOUNT DATA BY A THIRD PARTY;
and/or (viii) the defamatory, offensive or illegal conduct of any
third party.
To the maximum extent permitted by applicable law, In no event will we
or our affiliates, agents, license partners, SUPPLIERS OR LICENSORS
(OR OUR OR THEIR employees, contractors, agents, officers or
directors) be liable to you for any claims, proceedings, liabilities,
obligations, damages, losses or costs in an amount exceeding EUR
500,-. This limitation of liability provision applies whether the
alleged liability is based on contract, tort, negligence, strict
liability or any other basis, even if we have been advised of the
possibility of such damage.
Notwithstanding the foregoing, The total liability of us under this agreement shall
in all cases be limited to EUR 500, except in cases where the damage
has been caused by our intentional act or through our gross negligence.
Some JURISDICTIONS do not allow the exclusion or limitation of incidental
or consequential damages, so the above limitations or exclusions may
not apply to you. This Agreement gives you specific legal rights, and
you may also have other rights which vary from JURISDICTION TO
JURISDICTION. The disclaimers, exclusions, and limitations of
liability under this Agreement will not apply to the extent
prohibited by applicable law.
-
Contracting Entity, Governing Law and Class Action/Jury Trial Waiver
-
Contracting Entity.
This Agreement and, as specified in Article 1.9, subscriptions for
Services may be entered into with Mascus International B.V.
(Vijzelstraat 68-78, 1017 HL Amsterdam, The Netherlands) or the
applicable Mascus Affiliate or License Partner operating in your
region.
-
Governing Law/Venue.
Subject to the terms of your Product Specific Agreement(s) or
mandatory applicable consumer law provisions, this
Agreement shall be governed by Dutch law, without respect to its
conflict of laws principles, and any action relating to this
Agreement commenced by you will exclusively be brought in the
courts of competent jurisdiction in Amsterdam. In our absolute and
sole discretion, we may commence legal action, at our election, in
the courts of competent jurisdiction in Amsterdam or the place of
your domicile, and if more than one party is involved, in the
domicile of any one of the parties, and you and all other parties
hereby submit and attorn to that jurisdiction and competent court.
-
Exclusion.
The application of the United Nations Convention on Contracts for
the International Sale of Goods is expressly excluded.
-
Class Action/Jury Trial Waiver.
In the event a user is able to successfully bring an action outside
Amsterdam or the governing law of your product specific agreement
is different, then
with respect to all persons and entities, regardless of whether they
have obtained or used the Services for personal, commercial or
other purposes, all Claims must be brought in the parties’
individual capacity, and not as a plaintiff or class member in any
purported class action, collective action, private attorney general
action or other representative proceeding. You agree that, by
entering into this Agreement, you and we are each waiving the right
to a trial by jury or to participate in a class action, collective
action, private attorney general action, or other representative
proceeding of any kind. SOME JURISDICTIONS DO NOT ALLOW THis
waiver, SO THE ABOVE limitations MAY NOT APPLY TO YOU. THE waiver
in this provision WILL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
-
General
-
Assignment.
This Agreement, and any rights and licenses granted hereunder, may not
be transferred or assigned by you, but may be assigned by us
without restriction. Any attempted transfer or assignment in
violation hereof will be null and void.
-
Notification Procedures.
We may provide notifications, whether such notifications are required
by law or are for marketing or other business-related purposes, to
you via email notice, written or hard copy notice, or through
posting of such notice on our website, as we determine in our sole
discretion. We reserve the right to determine the form and means of
providing notifications to our Users, provided that you may opt out
of certain notifications as required under applicable laws or as
described in this Agreement or our Privacy Statement. We are not
responsible for any automatic filtering you or your network
provider may apply to email notifications we send to the email
address you provide us.
-
Changes to the Agreement.
We may, in our sole discretion, modify or update this Agreement from
time to time, and so you should review this page periodically. When
we change the Agreement in a material manner, we will update the
‘last modified’ date at the top of this page and notify
you that material changes have been made to the Agreement. Your
continued use of the Services after any such change constitutes
your acceptance of the new Terms of Service. If you do not agree to
any of these terms or any future General Terms of Service, do not
use or access (or continue to access) the Services.
You hereby acknowledge and agree that, to the maximum extent permitted
by applicable law, unless otherwise stated, any and each modified
oR NEW Terms of Service will FULLY GOVERN your use of the Services,
and is effective, beginning as of your first access to and use of
the Services, even if prior to your acceptance of such Modified
terms of service.
-
Entire Agreement/Severability.
This Agreement, together with any amendments and any additional
agreements you may enter into with us in connection with the
Services such as Product Specific Agreements, will constitute the
entire agreement between you and us concerning the Services.
If provided, any related purchase order or similar document provided
by you shall be for reference only and shall have no force or
effect, even if signed by you and a Mascus Listing Provider after
the date hereof.
None of our employees or representatives are authorized to make any
modification or addition to this Agreement, unless in writing
signed by our authorized representative. Any statements or comments
made between you and any of our employees or representatives are
expressly excluded from this Agreement and will not apply to you or
us or your use of the Services. If any provision of this Agreement
is deemed invalid by a court of competent jurisdiction, the
invalidity of such provision will not affect the validity of the
remaining provisions of this Agreement, which will remain in full
force and effect. Where we have provided any translation of the
English language version of this Agreement, such translation is
provided for your convenience only. To the extent there is any
inconsistency between the English language version and any such
translation, the English language version shall govern.
-
No Waiver.
No waiver of any term of this Agreement will be deemed a further or
continuing waiver of such term or any other term, and our failure
to assert any right or provision under this Agreement will not
constitute a waiver of such right or provision.
-
Contact. Please
contact us
with any questions regarding this Agreement.
-
Feedback and Reporting Infringements of Intellectual Property Rights
If you believe that material in the Services to any part is incorrect or
faulty, please notify us by sending information using the "feedback"
link on the Service´s front page. Please describe the error or
defect in detail in the message.
We respect the intellectual property rights of others, and we expect our
Users to do the same. If you believe that your copyrights or other
intellectual property rights have been infringed by material posted
by others through the Services, you should provide us or our
designated agent with the following information:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright or other intellectual property owner;
2. Identification of the copyrighted work or other intellectual property that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Services;
4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other intellectual property owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright or other intellectual property owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following address:
If outside North America:
Attn: Infringement Notice
Legal Department
Mascus
Address: Bijster 3
4817 HX Breda, The Netherlands
Tel.: +31.765.242.600
Fax: +31.765.242.650
If within North America:
Attn: Infringement Notice
Senior Paralegal
Ritchie Bros. Auctioneers (America) Inc.
Address: 4000 Pine Lake Road
Lincoln, NE USA 68516
Tel.: +1-(800) 211-3983
Fax: +1-(888) 433-3467
IN CERTAIN JURISDICTIONS, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us that your
intellectual property rights have been infringed. The preceding requirements are intended to comply with our rights and obligations,
but do not constitute legal advice. It may be advisable to contact a lawyer regarding your rights and obligations under applicable laws.
In accordance with applicable law, we have adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be
repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate the User Accounts of any Users who
infringe any intellectual property rights of others, whether or not there is any repeat infringement.