Effective Date: April 23, 2012
Koss Corporation (“Koss”) provides a customizable music management system (“System”) via the website located at www.MyKoss.com (“Site”) and allows you to access and use the System and this Site, subject to these terms and conditions as modified from time to time (“Terms”). The terms “you” and “your,” as used in these Terms, refer to any person accessing the System or this Site for any reason. Please read these Terms carefully.
1. Acceptance of the Terms. By accessing or using the System or this Site, you acknowledge and represent that you have read, understand, agree to be bound by, and accept these Terms. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT USE THE SYSTEM OR THIS SITE. Although you may “bookmark” a particular portion of this Site and bypass these Terms, your use of this Site still binds you to these Terms. If you have a question about these Terms, please email Koss at email@example.com.
2. Right to Use the System and this Site. Subject to your compliance with these Terms, Koss grants to you a personal, non-exclusive, non-transferable, limited, revocable right to enter and use the System and this Site. Any unauthorized use of the System or this Site terminates the permission granted by Koss to enter and use the System and this Site. You can use the System only on a device officially supported by Koss.
3. Content Advisory. The System and this Site enable access to content of third parties such as music and audio files (“Third Party Content”) that may not be available or appropriate in all locations, that may be subject to additional terms and conditions, and that may contain content or references to content that is deemed offensive, objectionable, or indecent. Your access to, listening to, viewing of, and use of Third Party Content is at your sole risk, and Koss will have no liability for your access to, listening to, viewing of, or use of Third Party Content.
4. Registration and Password Confidentiality. To access certain portions of this Site and to use the System, you must select a user name and password. You are solely responsible for preserving the confidentiality of your password and for the actions of persons accessing this Site or using the System with your user name and password. Accordingly, you should not share your user name or password with anyone else, and you should select a password that is not easy to guess, and that uses a combination of upper case and lower case letters, numbers, and symbols. You agree to notify Koss immediately of any loss of or unauthorized use of your user name or password.
5. Restrictions on Use. You agree not to do any of the following while using the System or this Site:
· Use the System or this Site to reproduce, prepare derivative works based upon, distribute, publicly perform or display, store, or modify copyrighted materials or otherwise violate a third party’s Intellectual Property Rights (as that term is defined below).
· Translate, reverse engineer, decompile, or modify the System or this Site.
· Use any automated means to access the System or this Site or collect any information from this Site (including, without limitation, robots, spiders, scripts, or other automatic devices or programs).
· Frame this Site, utilize framing techniques to enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of its pages.
· Engage in the practices of “screen scraping,” “database scraping,” or any other activity to obtain materials, lists of users, or other information for an unauthorized purpose.
· Use any meta tags or any other “hidden text” that includes Koss’ name, trademarks, or service marks, or use any Koss logo or other proprietary graphic, trademark, or service mark as part of a link.
· Gather any person’s information available from this Site or transmit any unsolicited advertising, junk mail, “spam,” or chain letters.
· Impersonate or misrepresent your affiliation with any person or entity or create a false identity to mislead Koss or others.
· Submit false or misleading information.
· Repeat any action after you receive a warning or request from Koss to stop, whether or not that action is explicitly prohibited in Koss’ policies.
· Fail to respond to communications from Koss regarding a violation, dispute or complaint.
· Violate any other policies applicable to this Site or the System.
· Use this Site or the System in any manner that is inconsistent with or violates applicable law or these Terms or that could damage, disable, overburden, or impair this Site or the System, or interfere with any other party’s use and enjoyment of this Site or the System.
6. Termination. Koss may terminate your use of the System and this Site for any reason, including, without limitation, if Koss believes that you have violated or acted inconsistently with these Terms. Koss may also modify or discontinue providing the System or this Site, or any part thereof, with or without notice. Koss is not liable to you or any third party for any termination of your access to the System or this Site, or any modification or termination of the System or this Site.
8. Accuracy of Information on this Site. Koss attempts to provide only accurate information, but some inaccuracies may occasionally be present. By using this Site you acknowledge that Koss will not be liable or responsible for any damage or loss caused by or in connection with the use of or reliance on any information on this Site. If you find any information on this Site to be inaccurate, please alert Koss at firstname.lastname@example.org.
9. Intellectual Property. Except as expressly stated in these Terms, Koss and its third party licensors, as applicable, retain all rights, title, and interest in and to the System and this Site, which are protected by U.S. and international copyrights, trademarks, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”). KOSS, KOSS (stylized), KOSS and design, HEARING IS BELIEVING, KOSS CLASSICS, KOSS CLASSICS and design, PORTA PRO, SPARK PLUG, SPORT CLIP, THE SOUND OF KOSS, and QUIET ZONE, are Registered in the U.S. Patent and Trademark Office and are trademarks of Koss Corporation in other countries. Related indicia and product trade dress are trademarks of Koss Corporation. The absence of any product or service name from this section does not constitute waiver of trademark rights. You may not use any Koss trademarks to imply any endorsement or affiliation of any product or service without written permission from Koss Corporation. All other marks contained on this Site or in the Service are the property of the parties indicated.
10. User Information; Electronic Communications. You represent and warrant that all information that you submit to Koss through this Site is complete and accurate. By submitting your contact information to Koss through this Site (e.g., by registering), you authorize Koss to send electronic mail to you. If you do not want to receive e-mails from Koss, you may follow the instructions in the e-mail to remove your e-mail address from the mailing list. If Koss has reasonable grounds to believe that the information you provided is untrue, inaccurate, incomplete, or outdated, Koss may suspend or terminate your use of this Site or the Service or otherwise refuse to perform any requested services.
12. Links to External Sites. Koss may provide links on this Site to other independent websites on the Internet that are owned and operated by third parties not under the control of Koss. These links are not intended as an endorsement by Koss of the entity or individual operating the website or a warranty of any type regarding the website or the information on the website. By using this Site, you acknowledge that Koss is not liable or responsible for any damage or loss caused, or alleged to be caused, by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
13. Dealings with Third Parties. Your correspondence or business dealings with third parties, such as providers of Third Party Content, found on or through this Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and that third party. You agree that Koss is not responsible or liable for any loss or damage incurred as the result of any such dealings or as the result of the presence of such third party on this Site.
14. NO WARRANTY; DISCLAIMERS. THE SYSTEM AND THIS SITE, AND ALL SERVICES, CONTENT, AND EVERY OTHER ASPECT THEREIN (COLLECTIVELY, “COMPLETE SYSTEM”) ARE PROVIDED “AS IS,” AND WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORTS, AND RESULTS IS WITH YOU. KOSS, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) FOR THE COMPLETE SYSTEM, INCLUDING, WITHOUT LIMITATION OF: (A) TITLE; (B) NON-INFRINGEMENT; (C) MERCHANTABILITY; (D) FITNESS FOR A PARTICULAR PURPOSE OR USE; (E) PRIVACY OR SECURITY; (F) INDEMNITY; (G) RESULTS, ACCURACY, VALIDITY, COMPLETENESS OF INFORMATION, FUNCTIONALITY, OR AVAILABILITY; (H) OF MISREPRESENTATION, DEFAMATION, PORNOGRAPHY, OBSCENITY OR THE LIKE; OR (I) ANY CREATED BY TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, KOSS DOES NOT PROMISE OR WARRANT TO YOU THAT ANY ASPECT OF THE COMPLETE SYSTEM WILL WORK PROPERLY, OPERATE ERROR-FREE, OR BE AVAILABLE CONTINUOUSLY. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE COMPLETE SYSTEM IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KOSS OR THROUGH OR FROM THE COMPLETE SYSTEM CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights, and you may also have other legal rights, which vary from state to state.
16. NO INCIDENTAL, CONSEQUENTIAL, OR CERTAIN OTHER DAMAGES. TO THE FULL EXTENT ALLOWED BY LAW AND EXCEPT FOR DAMAGES FOR INFRINGEMENT OF OUR CONTENT, YOU AGREE THAT NEITHER KOSS NOR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, OR LICENSORS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OR THE LIKE (INCLUDING WITHOUT LIMITATION, LEGAL, EXPERT AND CONSULTANT FEES AND COSTS), OR FOR DAMAGES FOR (WITHOUT LIMITATION): LOST PROFITS OR OPPORTUNITY, LOSS OF GOODWILL, LOSS OF USE, LOSS OF PRIVACY OR SECURITY OR DATA, FAILURE TO MEET ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH OR OF LACK OF NEGLIGENCE OR OF WORKMANLIKE EFFORT), THAT ARISE OUT OF OR ARE RELATED TO THE COMPLETE SYSTEM OR TO ANY BREACH OF THESE TERMS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY OR MISREPRESENTATION.
17. Indemnity. You agree to indemnify, defend and hold Koss, and its subsidiaries, affiliates, officers, agents, co-branded partners or other partners, and employees, harmless from any claims, damages, expenses (including reasonable attorneys’ fees), allegations, losses and liabilities arising from or related to (a) your violation of these Terms, (b) your use of the Complete System, (c) information that you submit or transmit through this Site, (d) your access to or use of linked sites, and (e) any dealings between you and any third parties referenced in the Complete System.
18. Void where Prohibited. Koss controls, operates, and administers this Site from its offices in Milwaukee, Wisconsin. Not all features, products or services offered through or on this Site are intended to be available to persons or in all geographic locations, or are appropriate or available for use outside the United States. Koss reserves the right to limit the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on this Site is void where prohibited. If you choose to access this Site from outside the United States, you do so on your own initiative, and you are responsible for complying with applicable local laws.
19. Choice of Law; Dispute Resolution. All matters relating to your access to and use of the Complete System, including purchases made on this Site, are governed in all respects by the laws of the State of Wisconsin as such laws are applied to agreements entered into and to be performed entirely within Wisconsin between Wisconsin residents. You agree that any action at law or in equity arising out of or relating to these Terms or arising out of your use of the Complete System will be resolved individually through binding arbitration in Milwaukee County, Wisconsin using the then-current rules of the American Arbitration Association, and the resulting decisions may be entered in any court with proper jurisdiction. This means that if you have a grievance with us, you cannot take us to court, and you may not join your action with any other party. You can address such grievances through arbitration only, and you are hereby consenting to arbitrate only in Milwaukee County, Wisconsin using Wisconsin laws (without regard to Wisconsin rules on conflict of laws). To the fullest extent allowed by law, any such controversy or claim must be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. Notwithstanding the foregoing, either party may seek any interim or preliminary relief from a court of competent jurisdiction in Milwaukee County, Wisconsin as necessary to protect the party’s rights or property pending the completion of arbitration. By using this Site, you consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in Milwaukee County, Wisconsin.
20. General. If any portion of these Terms is deemed unenforceable, that portion will be enforced to the maximum extent possible so as to give effect to the parties’ intent as reflected by that provision, and the remaining portions of these Terms will be given full effect. Koss’ failure to act in a particular circumstance, including any failure by Koss to enforce or exercise any provision of these Terms, does not waive the ability to act with respect to that circumstance or similar circumstances in the future. Koss will be excused for any failure to perform to the extent that its performance is prevented by any reason outside of its reasonable control. No agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms. Koss may assign its rights and obligations under these Terms to an entity that acquires all or substantially all of the assets of Koss or to any subsidiary or successor in a merger or acquisition involving Koss. You may not assign your rights and obligations under these Terms. These Terms, in addition to any other written agreement between you and Koss, constitute the entire agreement between Koss and you with respect to your access to or use of this Site, superseding any prior versions of these Terms. If an express conflict exists between these Terms and a written agreement between you and Koss, such written agreement supersedes these Terms.
21. Changes to These Terms. We may, at our sole discretion, revise these Terms at any time. When we do so, we will update the effective date that appears at the beginning of these Terms. Subsequent versions of these Terms, or revisions thereto, shall be effective when posted, so please check these Terms regularly for any updates. Your use of the System or this Site after such changes are posted constitutes your acceptance of the changes.
22. Notice Regarding Copyright Agent. Anyone who believes that their work has been reproduced in this Site or in the Service in a way constituting copyright infringement may provide a notice to the designated Copyright Agent containing the following:
A. An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest allegedly being infringed;
B. Identification of the copyrighted work claimed to have been infringed;
C. Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
D. The address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
E. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
F. A statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Copyright infringement claims and notices (but not other notices) should be sent to the attention of John Patton of K&L Gates LLP in the following manner:
· by mail: John Patton
K&L Gates LLP
1717 Main Street, Suite 2800
Dallas Texas 75201
· by phone: 214-939-5500
· by fax: 214-939-5849
· by e-mail: email@example.com
Effective Date: April 19, 2012
We Value Your Privacy
Information That You Affirmatively Provide
We collect information that you provide when you register to use the System on this Site, including but not limited to:
· your first and last name
· e-mail address
We may allow you to rate music or audio content delivered to your Device, or to otherwise provide information about what you like to listen to. If you choose to do so, we collect that information. We may also collect information about you when you contact us with a suggestion, question or concern.
We do not intentionally collect personal information from children under the age of 13. If you are under the age of 13, please do not submit any information through this Site. Have a responsible adult submit the information instead.
Information That We Automatically Collect
When you use a Device in connection with the System, or otherwise to connect to and/or access music or other content available through the Internet, we automatically collect information about your Device and your use of the Device. For example, information such as the IP address or other identifiers of the computer, router, or equipment that the Device uses to connect to the Internet, and any unique device identifiers (such as the MAC address) will be transmitted and recorded. This information may reveal the location of your Device and usage.
When you register on the Site to use the System, we collect, and will continue to collect, additional information about you and about your use of the System. For example, we collect and store information regarding the preferences that you have set for your Device, such as volume, treble, bass, and other settings, and we link that information to the other information that we automatically collect, and to the information that you affirmatively provide, including personal information about you. We may also collect information about the music or audio content that you listen to.
We may allow information collection on the Site by analytic service provider(s), including Google Analytics. We and/or our service providers use certain Internet technologies to collect information about users of the Site. For instance, we and/or our service providers use "cookies" (small pieces of information that are transferred by a website and stored on your computer or web browser) to determine how you reached the Site and to track your usage patterns during your visits to the Site and when you choose to leave the Site. We and/or our service providers also collect information such as your IP address, operating system, web browser software, screen resolution, and referring website, from your web browser every time you request a page during a visit to the Site. We use this information to improve the function, content, appearance, and capability of the Site. We also provide this information to suppliers, advertisers, affiliates, and other current and potential business partners so that they can market products or services to you; when we provide such information, we generally try to do so in a manner that does not personally identify you, but they may be able to do so.
How We Use and Disclose Information That We Collect
We Disclose information that you affirmatively provide and information that we automatically collect about you to outside parties to: help fulfill your request(s); be in contact with you about the Site, System, Devices or other products or services we or they offer; notify you of special promotions, surveys, contests, sweepstakes, and other opportunities from us, them, or our affiliates or marketing partners; serve you with advertisements based on: (i) your preferences; (ii) Device, Site or System usage; (iii) location; and (iv) any other information that you affirmatively provide or that we automatically collect; and operate and improve the Site, System, and other products and services that we develop. By “Disclose” we collectively mean using, accessing (or barring access), processing, fulfilling, disclosing, receiving, displaying, sharing, transferring, storing, selling, leasing, licensing, retaining, combining, investigating, verifying, proving, enforcing and otherwise dealing with, voluntarily or involuntarily, information. We may use information that you affirmatively provide and information that you do not affirmatively provide for any of these purposes, and for certain administrative and analytical purposes such as information systems management.
We reserve the right to Disclose any information that you affirmatively provide, or that we automatically collect about you, when we believe it is necessary to identify, contact, investigate, or bring legal action against persons or entities who we suspect may be causing injury to you, us, or others, or otherwise when we think (in our sole discretion) that doing so could help prevent any potential crime or harm to you, us, or others.. We may also Disclose any information that you affirmatively provide, or that we collect about you in response to court orders, subpoenas, investigations or requests, or in connection with legal or administrative proceedings. If we choose to do so, we may provide you with notice in advance of any such Disclosure, but we undertake no obligation to do so.
We reserve the right to share any information you affirmatively provide, or that we automatically collect about you, in connection with a corporate transaction or in connection with the sale, merger, or reorganization of our company.
Retention of Information You Affirmatively Provide, or That We Collect About You
We tend to retain information that you affirmatively provide, or that we collect about you, for the length of time that we, in our good faith discretion, believe to be necessary to fulfill the purposes for which we collected it, to comply with applicable laws or contracts, and to operate our business. For example, we keep information that you affirmatively provide, or that we collect about you, as long as you continue to use the Site or System.
Access and Updates to Information About You
We do not maintain all information that you affirmatively provide or that we collect about you in a form that can be accessed or updated by you, and some information may be held by third parties that we do not control. Even if you delete your account through this Site, we may retain information you affirmatively provide and information that we automatically collect about you. You may access or update personal information in our records that we make eligible for updating by making a written request to:
Koss Corporation, ATTN: Legal
4129 North Port Washington Ave.
Milwaukee, WI 53212.
Your request to access or update information must include a clear identification of the information at issue and, if relevant, an explanation of the changes you want made to it, as well as proof of your identity and authority to make the request. While we do not currently do so, we reserve the right to charge for handling your request(s) subject to applicable law.
If you believe that you are a victim of identity theft, you may be entitled by law to request information from us. You can do this by writing to the address above. If we receive a request, we will then explain what information we require in order to respond. Once we have all of the required information, we will supply, without charge, any information that we then have which we are legally required to provide (subject to applicable law, and reserving all rights and defenses).
How We Try To Secure Your Information
The security of your information is important to us, however, no data transmission over the Internet can be guaranteed to be completely secure. We have implemented what we believe to be reasonable security measures to protect the information we collect, but we cannot promise, ensure or warrant the security of any information you affirmatively provide, or that we collect about you.
You may use your Device to listen to music or content provided by third parties. When you do so, such third parties may receive information about you, your Device, your use of your Device, and your location. Koss does not review the practices of any third parties, and makes no representations about their data collection or use practices.
Electronic Notice if There is a Security Breach
If we or any of our subsidiaries, affiliates, or service providers are required by applicable law or contract to provide notice of unauthorized acquisition, access, use, or disclosure of personal information about you, or of other invasions of certain security systems, you agree that we may do so by posting an electronic notice on our Site or by sending notice to any e-mail address that we have on file for you, in our good faith discretion.