PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice through the Services, by sending you an email, and/or by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
What are the basics of using TheQoos?
You may be required to sign up for an account, and select a password and user name (“TheQoos User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your TheQoos User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law. You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account. As part of the Services, you may receive notifications, such as: notifications regarding new artists, featured content, special events for specific artists, and posts by users you have elected to follow. With your consent, we may send push notifications to your device even when you are not logged into your account on the Services. At any time, you can manage your push notification preferences or deactivate these notifications by turning off the notification settings in the App or in the device settings of your mobile device. If you choose not to receive push notifications, then you will still receive notifications while using the Services. Your use of the Services is subject to the following additional restrictions: You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that: (a) Infringes or violates the intellectual property rights or any other rights of anyone else (including TheQoos); (b) Violates any law or regulation, including, without limitation, any applicable export control laws; (c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (d) Jeopardizes the security of your TheQoos account or anyone else’s (such as allowing someone else to log in to the Services as you); (e) Attempts, in any manner, to obtain the password, account, or other security information from any other user; (f) Violates the security of any computer network, or cracks any passwords or security encryption codes; (g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); (i) Copies or stores any significant portion of the Content; (j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; (k) Bypasses the measures we may use to prevent or restrict access to the Services or Content, including without limitation features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content; or (l) Monetizes the Content through advertising, subscriptions or other means, unless you own or control the relevant rights in the Content or you have our prior written consent. A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including TheQoos’s) rights. You understand that TheQoos owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Do I have to grant any licenses to TheQoos or to other users?
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like TheQoos, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.
Who is responsible for what I see and do on the Services?
Will TheQoos ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
What if I want to stop using the Services?
I use the App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including the iOS version of the App available via the Apple, Inc. (“Apple”) App Store (the “iOS App”), but the following additional terms also apply to the iOS App specifically: (a) Both you and TheQoos acknowledge that the Terms are concluded between you and TheQoos only, and not with Apple, and that Apple is not responsible for the Application or the Content; (b) The iOS App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services; (c) You will only use the iOS App in connection with an Apple device that you own or control; (d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App; (e) In the event of any failure of the iOS App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the iOS App; (f) You acknowledge and agree that TheQoos, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the iOS App; (g) You acknowledge and agree that, in the event of any third party claim that the iOS App or your possession and use of the iOS App infringes that third party’s intellectual property rights, TheQoos, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; (i) Both you and TheQoos acknowledge and agree that, in your use of the iOS App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and (j) Both you and TheQoos acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
What else do I need to know?
Neither TheQoos nor its licensors make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE SERVICES AND CONTENT ARE PROVIDED BY THEQOOS (AND ITS LICENSORS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL THEQOOS (OR ITS LICENSORS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO THEQOOS IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent allowed by applicable law, you agree to indemnify and hold TheQoos, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without TheQoos’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with TheQoos and limits the manner in which you can seek relief from us. Both you and TheQoos acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, TheQoos’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof. (a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. (b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. TheQoos will pay all arbitration fees for claims less than $75,000. TheQoos will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. (c) Small Claims Court. Furthermore, either you or TheQoos may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. (d) Waiver of Jury Trial. YOU AND THEQOOS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and TheQoos are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and TheQoos over whether to vacate or enforce an arbitration award, YOU AND THEQOOS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below. (f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: TheQoos Inc. 555 Madison Avenue, 5th Floor, New York, NY 10022, postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement. (g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or TheQoos to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and TheQoos agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York Coounty, New York, or the Southern District of New York.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the TheQoos may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and TheQoos agree that these Terms are the complete and exclusive statement of the mutual understanding between you and TheQoos, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms,. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of TheQoos, and you do not have any authority of any kind to bind TheQoos in any respect whatsoever. Except as expressly set forth in the section[s] above regarding the iOS App and the arbitration agreement, you and TheQoos agree there are no third party beneficiaries intended under these Terms.