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
Bijster 3
4817 HX Breda, The 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.
-
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.
-
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.
-
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.
-
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.
-
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. (Bijster 3, 4817 HX Breda, 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.