Terms of Use

MOBILE APPLICATION AND WEBSITE TERMS OF USE

Posted and effective: August 29, 2016

Close5 is provided to you by Marktplaats B.V. (Wibautstraat 224-2, 1097 DN Amsterdam, The Netherlands), also referred to below as “we” or “us”. By accessing or using the Close5 Mobile Application (the “Application”) or the website at www.close5.com (the “Website”) (the Application and Website together constitute the “Services”), you agree to be bound by this Mobile Application and Website Terms of Use (these “terms”). If you do not agree to these terms, please do not access or use the Services and uninstall the Application. Certain features of the Services may require you to register for an account or otherwise provide personal information in order to access or use those features of the Services.

PRIVACY NOTICE

The Privacy Notice found at close5.com/privacy applies to your use of the Services and tells you how we use and protect the information we may collect from you.

BY INSTALLING, USING, REGISTERING WITH OR OTHERWISE ACCESSING OUR SERVICES, YOU GIVE US EXPLICIT CONSENT FOR THE COLLECTION, USE, DISCLOSURE AND RETENTION OF YOUR PERSONAL INFORMATION BY US, AS DESCRIBED IN THESE TERMS AND IN OUR PRIVACY NOTICE. IF YOU DO NOT AGREE TO OUR POLICIES AND PRACTICES AS SET FORTH IN OUR PRIVACY NOTICE, PLEASE DO NOT INSTALL, USE, REGISTER WITH OR OTHERWISE ACCESS OUR SERVICES.

  1. Use of the Services. We grant you the nonexclusive right to use the Services only for your personal use, subject to these terms. You are solely responsible for all content and other information that you post or submit via the Services (including your listings and any communications you make through the Services with us or other users) and any consequences that may result from your content and other information. You must comply with applicable third party terms of agreement when using the Services (e.g. your wireless data service agreement). Your right to use the Services will terminate immediately if you violate any provision of these terms.

  2. Restrictions on Use. As a condition of your use of the Services, you agree that you will not:

    • modify, copy, publish, license, sell, or otherwise commercialize the Services or any information or software associated with the Services (including, but not limited to, underlying technology, content, or source code);
    • rent, lease or otherwise transfer rights to the Services;
    • use the Services in any manner that could impair any of our websites or applications in any way or interfere with any party’s use or enjoyment of any such site or application;
    • violate any contracts or laws, including intellectual property laws;
    • violate our posting rules (available at close5.com/posting-policies) or any other policies in force from time to time;
    • post any threatening, abusive, defamatory, obscene or indecent material;
    • be false or misleading;
    • infringe any third-party right;
    • distribute or contain spam, chain letters, or pyramid schemes;
    • distribute a virus, worm, contaminated file, Trojan horse, or any other technologies that may harm the Services or the interests or property of Services users;
    • impose an unreasonable load on our infrastructure or interfere with the proper working of the Services;
    • copy, modify, or distribute any other person’s content without their consent;
    • use the Services to spam, stalk, harass, or otherwise harm another user;
    • use any robot spider, scraper or other automated means to access the Services and collect content for any purpose without our express written permission;
    • use any information available from the Services to contact any users for purposes other than negotiations to buy or sell items listed by the user;
    • post any private information of any third party (including, but not limited to, contact information or financial information)
    • harvest or otherwise collect information about others, including email addresses, without their consent; and/or
    • bypass measures used to prevent or restrict access to the Services.

  3. Abusing the Services. We and the Close5 community work together to keep the Services working properly and the community safe. Please report problems, offensive content and policy breaches to us.

    Without limiting other remedies, we may issue warnings, limit or terminate the Services, remove hosted content and take technical and legal steps to keep users off the Services if we think that they are creating problems or acting inconsistently with the letter or spirit of our policies, at our sole discretion. However, whether we decide to take any of these steps, remove hosted content or keep a user off the Services or not, we do not accept any liability for monitoring the Services or for unauthorized or unlawful content on the Services or use of the Services by users. You also recognize and accept that we are not under any obligation to monitor any content or other information that is communicated through or available on the Services.

  4. Global Marketplace. Some of our features may display your ad on other sites that are part of the global eBay community (for example, on eBay sites in other countries), or on third party sites, including social media channels. By using the Services, you agree that your ads can be displayed on these other sites. The terms for our other eBay sites are similar to these terms, but you may be subject to additional laws or other restrictions in the countries where your ad is posted. When you choose to post your ad on another site, you may be responsible for ensuring that it does not violate our other site’s policies. We may remove your ad if it is reported on any our other sites, or if we believe it causes problems or violates any law or policy.

  5. Fees and Services. Using the Services is generally free, but we may sometimes charge a fee for certain Services. If the Service you use incurs a fee, you’ll be able to review and accept terms that will be clearly disclosed at the time you post your ad. Our fees are quoted in US Dollars, and we may change them from time to time. We’ll notify you of changes to our fee policy by posting such changes on the site. We may choose to temporarily change our fees for promotional events or new services; these changes are effective when we announce the promotional event or new service.

    Our fees are non-refundable, and you are responsible for paying them when they are due. If you do not, we may limit your ability to use the Services. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms.

    As part of our free services, we may perform minor adjustments to your listing or the comments within your listing, which are generally limited to: (i) removing an e-mail address, phone number, or other personal information; (ii) categorizing your ad so that it is searchable within a specific product category; and (iii) deleting content which violates our Posting Rules.

  6. Intellectual Property & Content. We own, or are the licensee to, all right, title and interest in and to the Services, including all rights under patent, copyright, trade secret, trademark, or unfair competition law, and any and all other proprietary rights, including all applications, renewals, extensions and restorations thereof. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse-engineer, disassemble or otherwise attempt to derive source code from the Services and you will not remove, obscure or alter our copyright notice, trademarks or other proprietary rights notices affixed to, contained within or accessed in conjunction with or by the Services.

    Our Services contain content from us, you, and other users. Content displayed on or via the Services is protected as a collective work and/or compilation, pursuant to copyrights laws and international conventions. You agree not to copy, distribute, modify, reproduce, copy, sell, resell, or exploit for any purposes any aspect of the Services (other than your own content) without our express written consent.

    When providing us with content or causing content to be posted using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and other intellectual property rights you have in the content, in any media known now or developed in the future, for any purpose, including, but not limited to, use in marketing materials or posting on social media channels. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.

  7. Infringement. Do not post content that infringes the rights of third parties, including, but not limited to, intellectual property rights such as copyright and trademark (e.g. offering counterfeit items for sale). Entitled parties (e.g. the owners of copyright, trademark or other rights) may submit a request for any listing that infringes on their rights to be removed. If the entitled party submits this request to us in the manner set forth below, listings infringing on the intellectual property rights of the entitled party will be removed by us.

  8. Reporting Intellectual Property Infringements (Notice and Take Down Program). The following steps are for reporting a listing to us that you believe to be infringing on your intellectual property rights. Only the intellectual property rights owner can report potentially infringing items or listings through our Notice and Take Down Program. If you have a good faith belief that a listing on any of the Services infringes your copyright, trademark, or other intellectual property right, please download our Notice of Claimed Infringement (NOCI) form, fill it out, and email it to us at: legal@Close5.com. We reserve the right to share, in accordance with applicable law, the completed NOCI form with the third party that originally posted the potentially infringing listing.

    We have adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of ours and/or others.

  9. Other Users; Release. You agree not to hold us responsible for anything that other users post or do. We do not review users’ postings and (except as may be expressly set out in these terms) are not involved in the actual transactions between users. As most of the content on the Services comes from other users, we do not guarantee the accuracy of postings or user communications or the quality, safety, or legality of what’s offered. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

    Once you have exchanged the item and any associated payment with the other party, you agree that all sales are final, and that the seller is under no obligation to provide a refund unless otherwise agreed between the buyer and seller. We disclaim all responsibility for facilitating refunds or other disputes between users.

  10. Disclaimer of Warranties. WE DISCLAIM RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SERVICES. THE SERVICES, INCLUDING OTHER SERVICE(S) ACCESSED BY THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES. YOU DOWNLOAD THE APPLICATION AND USE THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF THE APPLICATION OR USE OF THE SERVICES. WE CANNOT GUARANTEE CONTINUOUS, ERROR-FREE OR SECURE ACCESS TO THE SERVICES OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NOTIFICATION FUNCTIONALITY IN THE APPLICATION MAY NOT OCCUR IN REAL TIME. SUCH FUNCTIONALITY IS SUBJECT TO DELAYS BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION, DELAYS OR LATENCY DUE TO YOUR PHYSICAL LOCATION OR YOUR WIRELESS DATA SERVICE PROVIDER’S NETWORK.

  11. Limitation of Liability. We are not liable to you or any user for any use or misuse of the Services. This exclusion: (a) includes direct, indirect, incidental, consequential, special, exemplary and punitive damages, whether such claim is based on warranty, contract, tort or otherwise (even if we have been advised of the possibility of such damages); (b) applies whether damages arise from use or misuse of and reliance on the Services, from inability to use the Services, or from the interruption, suspension, or termination of the Services (including any damages incurred by third parties); and (c) applies notwithstanding a failure of the essential purpose of any limited remedy and to the fullest extent permitted by law.

    Despite the previous paragraph, if we are found to be liable, our liability to you or any third party (whether based on contract, tort, negligence, strict liability or otherwise) is limited to the greater of (a) the total fees you pay to us in the 12 months prior to the action giving rise to liability, or (b) $100 US dollars.

    Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so the disclaimers in the preceding section and the above limitations and exclusions of liability may not apply to you.

  12. Indemnification. You agree that you will indemnify and hold harmless us (Marktplaats B.V.), our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents, against and from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your conduct, your use of the Services, any alleged violation of these terms, and any alleged violation of any applicable law or regulation. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.

  13. Security. We reserve the right at our discretion to take whatever action we find necessary to preserve the security, integrity and reliability of our network and back-end applications.

  14. Third Party Vendors. In using the Services, you may have the opportunity to engage with third-party vendors who offer products that may be used in conjunction with our Services. You are under no obligation to engage with a third-party vendor in order to use the Services. However, if you choose to engage with a third-party vendor, you acknowledge and agree that (i) we have no responsibility for, and you release us from any responsibility for, the services, products, content, or other information that the third-party vendor may provide to you; (ii) your dealings with the third-party vendor are solely between you and that vendor, and are subject to the terms and conditions agreed to between you and the third-party vendor; and (iii) we are not responsible for any losses you may incur based on your dealings with any third-party vendor.

  15. Changes to the Services or Terms of Use. We reserve the right to make changes to the Services and/or these terms from time to time. Any material changes will take effect when you next use the Services or after 30 days, whichever is sooner. If you do not agree to any change, please uninstall the Application and discontinue your use of the Services. No other amendment to these terms will be effective unless made in writing, signed by users and by us. We may discontinue the Services at any time, in our sole discretion, with or without notice to you.

  16. Feedback. You hereby agree that any testimonials, comments, ideas, suggestions or similar feedback that you provide to us through any medium regarding the Services (“Feedback”) may be used by us for any purpose, and that we may use, reproduce, distribute, publicly perform, publicly display, modify, maintain, support and create derivative works from your Feedback without limitations. You agree to assign and hereby assign to us all rights in and to the Feedback (including intellectual property rights, artist’s rights, or moral rights), and waive any and all claims and rights of any nature whosoever (including moral rights) that you may have with respect to the Feedback. In the event any rights you may have in the Feedback cannot be assigned or waived, you hereby unconditionally and irrevocably grant to us an exclusive, worldwide, fully-paid, royalty-free, sublicenseable, transferable, assignable and perpetual license to use, reproduce, distribute, publicly perform, publicly display, modify, maintain, support, and create derivative works of such Feedback in any medium or format.

  17. Compliance with Certain Laws. You are responsible for complying with trade regulations and both foreign and domestic laws. You represent and warrant that you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country and you are not listed on any US Government list of prohibited or restricted parties. Our Application or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; or (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or on the US Commerce Department’s Denied Party or Entity List; and you will not export or re-export this Application to any prohibited country, person, end-user or entity specified by US Export Laws.

  18. Miscellaneous Provisions. These terms and the other policies posted on or accessed by the Services constitute the entire agreement between you and us regarding the subject matter of these terms, superseding any prior agreements relating to that subject matter. To the extent permitted by applicable law, these terms shall be governed and construed in all respects by the laws of the State of California without regard to its conflict of law provisions. You agree that any claim or dispute you may have against us must be resolved by the courts of the United States, and you and we both agree to submit to the non-exclusive jurisdiction of Santa Clara County, California. If we do not enforce any particular provision, we are not waiving our right to do so later. If a court strikes down any of these terms, the remaining terms will survive. We may automatically assign these terms in our sole discretion in accordance with the notice provision below. Any section which, by its nature, should survive termination or expiration of these terms, will survive any such termination or expiration. Except for notices relating to illegal or infringing content, your notices to us must be sent by registered mail to:

    Marktplaats BV
    Wibautstraat 224-2
    1097 DN Amsterdam
    The Netherlands
    Re: Close5 - User Inquiries.

    We will send notices to you via: (a) the Services, (b) the personal information you provide, or (c) registered mail. Notices sent by registered mail will be deemed received five days following the date of mailing.

  19. Additional Terms. The following are additional terms and conditions that may apply to you based on the mobile device the Application is installed on:

    iOS – Apple

    • These terms are an agreement between you and us, and not with Apple. Apple is not responsible for the Application and the content thereof.
    • We grant you the right to use the Application only on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
    • Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
    • Apple is not responsible for the investigation, defense, settlement, and discharge of any third party intellectual property infringement claim.
    • Apple is not responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
    • In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
    • Apple and Apple's subsidiaries are third party beneficiaries of these terms, and, upon your acceptance, Apple as a third party beneficiary thereof will have the right (and will be deemed to have accepted the right) to enforce these terms against you.

    Windows - Microsoft

    • These terms are an agreement between you and us, not Microsoft. The terms of use and privacy policies of Microsoft and, where applicable, the network operators that provide billing services for the Windows Phone Marketplace do not apply to your use of the Application.
    • You may install and use one (1) copy of the Application on up to five (5) devices you personally own or control and which are affiliated with the Windows Live ID associated with your Windows Marketplace account. You may not install or use a copy of the Application on a device you do not own or control.
    • Microsoft, your device manufacturer, and (if applicable) your wireless carrier are not responsible for providing support services for the Application.
    • Microsoft, the wireless carriers over whose network the Application is distributed (if applicable), and each of their respective affiliates and suppliers (collectively, "Disclaiming Distributors") give no express warranty, guarantee, or conditions under or in relation to the Application. To the extent permitted under your local laws, the Disclaiming Distributors exclude any implied warranties or conditions, including those of merchantability, fitness for a particular purpose, and non-infringement.
    • You, and not the Disclaiming Distributors, bear the risk of using the Application (even if the Disclaiming Distributors have been advised of the possibility of damages to you). You may have additional consumer rights under your local laws which these Terms of Use cannot change.
    • To the extent not prohibited by law, you will not seek to recover any consequential, lost profit, special, indirect, or incidental damages from any Disclaiming Distributor.

    Android- Google

    The following applies to any Apps you acquire from the Google Play Store (“Google-Sourced Software”):

    • You acknowledge that these terms are between you and us only, and not with Google, Inc. (“Google”);
    • Your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service;
    • Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software;
    • We, and not Google, are solely responsible for the Google-Sourced Software;
    • Google has no obligation or liability to you with respect to Google-Sourced Software or these terms; and
    • You acknowledge and agree that Google is a third-party beneficiary to these terms as it relates to the Google-Sourced Software.