SYMPHONY COMMUNICATION SERVICES, LLC END USER LICENSE AGREEMENT (PUBLIC POD VERSION)

WELCOME TO SYMPHONY! PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING AND USING THE PUBLIC POD VERSION OF SYMPHONY’S CLOUD-BASED COMMUNICATION SERVICE WHICH PROVIDES A SECURE, EFFICIENT AND ROBUST ECOSYSTEM FOR HIGH-VALUED INFORMATION EXCHANGE (THE “SYMPHONY SERVICES”).

THE TERMS AND CONDITIONS (THE “TERMS”) SET FORTH IN THIS END USER LICENSE AGREEMENT GOVERN YOUR USE OF THE SYMPHONY SERVICES OFFERED BY SYMPHONY COMMUNICATION SERVICES, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“SYMPHONY”).

The Symphony Services are available for your use only on the condition that you agree to the terms and conditions set forth below, all with the intention to form a legally binding agreement. By clicking “Accept”, accessing or using the Symphony Services, you have indicated that you are at least 18 years of age or older, understand and accept these Terms. If you are an employee, consultant or contractor using the Symphony Services on behalf of or as part of your work for a company or other entity (the “Company”), you represent that you have the authority to bind that Company to these Terms and that you are an “Authorized User” authorized by your Company to use the Symphony Services.

1. SYMPHONY SERVICES

1.1. Authorized User Access Information. To access the Symphony Services, you will be required to create an account with Symphony or, if applicable, the Company will create an account for you. You will receive a login ID and password via email from Symphony or from Company, or the Company may opt in for a single sign-on feature, enabling you to access the Symphony Services by signing on through your work credentials (the “Authorized User Access Information”). You agree to keep confidential your login IDs or passwords. If a login ID or password is disclosed to any third party or otherwise compromised, you agree to notify Symphony or the appropriate Symphony representative at your Company promptly upon becoming aware of the foregoing. SYMPHONY SHALL NOT BE RESPONSIBLE FOR ANY USE OR MISUSE OF YOUR AUTHORIZED USER ACCESS INFORMATION RESULTING FROM YOUR OR THE COMPANY’S FAILURE TO SECURE YOUR LOGIN ID OR PASSWORD.

1.2. Grant of License. Subject to your compliance with the terms and conditions of these Terms, Symphony grants you a non-exclusive, worldwide, revocable, non-transferable and non-sublicensable license to access and use the Symphony Services.

1.3. DATA PROTECTION. By accepting these Terms, you acknowledge the following:

(a) The collection, processing and use by Symphony, its agents or affiliates, of your PII (as defined below), whether provided directly by you or by the Company on your behalf, as required to create an account and provide the Symphony Services as described in these Terms and more fully set out in the Privacy Policy; and

(b) To the storage of and (on your Company’s instructions, as the case may be) access to messages which you post, send or receive (including voice or video chat messages) or any other information or text, audio or video communication exchange (“Posted Data”) created by you or sent to your account, by the Company, and where such Posted Data is sent to an account of an Authorized User of a third party, to the storage and (subject to the consent of that third party or his or her employer) access to such Posted Data by that third party.

Any questions you have about your PII, and any requests in relation to PII, should be sent to Symphony Communication Services, LLC, 1 World Trade Center, Suite 45D, New York, NY 10007, Attn: General Counsel.

PII” as used herein means any data, information, or combination of data and information that is provided by you to Symphony or through your use of the Symphony Services, and which information can be used to identify or locate you.

1.4. Acceptable Use Policy. You will be solely responsible for the accuracy, propriety, quality, integrity and legality of all your Posted Data. By accessing or using the Symphony Services, you agree not to:

  • use the Symphony Services or the third-party applications included in or available through the Symphony Services to engage in illegal, fraudulent or other wrongful conduct, including but not limited to (a) distributing defamatory, obscene or unlawful content or content that promotes bigotry, racism, misogyny or religious or ethnic hatred, (b) transmitting any information or data that infringes any intellectual property rights of any third party or that is otherwise libelous, unlawful, or tortious, (c) stalking, harassment, or threatening others with violence or abuse, or (d) violation of any applicable law;

  • use the Symphony Services or the third-party applications included in or available through the Symphony Services to send abusive commercial solicitation, such as “junk” messages, spam and pyramid schemes;

  • make the Symphony Services accessible to anyone other than you;

  • create, modify, distribute, transmit, display, or perform derivative works based on the Symphony Services or any third-party content or applications included in or available through the Symphony Services;

  • disassemble, decompile or otherwise reverse engineer the Symphony Services or any third-party content or applications included in or available through the Symphony Services;

  • use the Symphony Services or any third-party content, services or applications included in or available through the Symphony Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

  • intentionally interfere with or disrupt the integrity or performance of the Symphony Services or third-party data, services or applications contained therein;

  • attempt to gain unauthorized access to the Symphony Services or to any third-party services, content or applications included in or available through the Symphony Services or their related systems or networks;

  • enable others to violate any of these Terms; or

  • unless otherwise specifically permitted by Symphony in writing, access the Symphony Services for any benchmarking against third-party services for competitive purposes.

1.5. Privacy Policy. Symphony’s Privacy Policy can be found at www.symphony.com and governs how Symphony collects, uses and discloses information from its users. By accessing or using the Symphony Services, you acknowledge Symphony’s use of your personal information and data that is posted or uploaded into the Symphony Services by you or the Company, such as name, title, job description, location, email alias, email address and any other information about you or that can be used to identify you (“Profile Data”) in accordance with the Privacy Policy (but in each case only to the extent necessary for Symphony to provide the Symphony Services or improve upon the delivery of the Symphony Services to you or the Company).

1.6. DMCA. Symphony respects the intellectual property of others and asks that you do too. Symphony’s policy is to terminate in appropriate circumstances users who repeatedly infringe the rights of copyright holders.

2. OWNERSHIP

2.1. Profile Data and Posted Data. By making your Profile Data and Posted Data available through the Symphony Services you hereby grant to Symphony a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use and distribute your Profile Data and Posted Data in order for Symphony to operate and provide the Symphony Services to you (or the Company as the case may be) and for use by you until the effective date of termination of these Terms by you or Symphony.

2.2. Ownership of Symphony Services. Subject to the limited rights expressly granted hereunder, Symphony reserves all rights, title and interest in and to the Symphony Services including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.

2.3. Feedback. You may, at your option, provide Symphony with feedback, comments, and suggestions for improvements to the Symphony Services (collectively, “Feedback”). You hereby grant to Symphony a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free, sublicensable and transferable license to any Feedback under any and all intellectual property rights that you own or control.

3. NO WARRANTY. THE SYMPHONY SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. SYMPHONY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SYMPHONY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

4. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL SYMPHONY BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR OPERATION OF THE SYMPHONY SERVICES, DAMAGES ARISING FROM ANY LOSS OF DATA, LOSS OF PROFITS, LOST SALES OR BUSINESS INTERRUPTION OF ANY CHARACTER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SYMPHONY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SYMPHONY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU TO SYMPHONY FOR USE OF THE SYMPHONY SERVICES IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO ANY LIABILITY.

5. CONFIDENTIAL INFORMATION

5.1. Definition.Confidential Information” means information or data supplied in confidence by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”), or acquired by the Receiving Party pursuant to these Terms. A Disclosing Party and a Receiving Party may be referred to individually or collectively in these Terms as a “Party.” Confidential Information includes all information that is marked as confidential or that a reasonable person should consider confidential in the context of its disclosure or due to the nature of the information itself, and may include technical and non-technical information, intellectual property rights, know-how, designs, techniques, plans, forecasts, projects, analyses, financial information and fee structures, or any other information relating to any research project, work in process, future development, marketing or business plans or financial or personnel matters relating to either party.

5.2. Exclusions. The obligations and restrictions set forth in this Section 5 will not apply to any information that: (i) is or has become publicly available other than through an act or omission of the Receiving Party in breach of these Terms; (ii) was provided to the Receiving Party by a third party who was not under an obligation of confidentiality to the Disclosing Party; (iii) was in the possession of the Receiving Party at the time of the disclosure; or (iv) was independently developed by the Receiving Party.

5.3. Use and Disclosure Restrictions. The Receiving Party will maintain all Confidential Information of the Disclosing Party in confidence and will safeguard such Confidential Information with the same care as (i) in your case, with which you protect the comparable Confidential Information of the Company, and if not so applicable, your Confidential Information) and (ii) in Symphony’s case, with which Symphony protects the comparable Symphony Confidential Information, but in no case with less than a reasonable degree of care. The Receiving Party will: (a) to the extent the Receiving Party is an employee, consultant or contractor using the Symphony Services on behalf of or as part of the Receiving Party’s work for the Company, only disclose the Disclosing Party’s Confidential Information to (where applicable) those of Company’s employees, directors, officers or agents (or those of its respective affiliates) on a need-to-know basis to perform obligations and exercise such Receiving Party’s rights under these Terms, and (b) only use the Disclosing Party’s Confidential Information to perform such Receiving Party’s obligations or exercise such Receiving Party’s rights under these Terms. The provisions of this Section 5.3 shall remain in effect for a period of three (3) years after the expiration or termination of these Terms.

5.4. Permitted Disclosures. The provisions of this Section 5 will not restrict either Party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the Party required to make such a disclosure, to the extent permitted, give reasonable notice to the other Party to enable it to contest such order or requirement or limit the scope of such request. The Party responding to such an order will only disclose that information that is expressly required.

6. TERM AND TERMINATION

6.1. Term. These Terms commence on the date that you first access or use the Symphony Services and will continue in effect until otherwise terminated by you, your Company (if applicable) or Symphony. Upon termination of these Terms for any reason, you will cease your use of the Symphony Services.

6.2. Termination. Where you or your Company (as applicable) instruct Symphony to terminate your account, you will cease to have rights to use the Symphony Services as an Authorized User or in your individual capacity from the effective date of such termination. You also acknowledge that, subject to the requirements of applicable law or regulation, certain PII may remain in archived/backup copies held by Symphony and/or the Company in accordance with the retention practices of Symphony or of the Company in accordance such party’s privacy policy or as otherwise required by law. Notwithstanding the foregoing, in the absence of a written agreement between Symphony and you or the Company stating otherwise, (a) you may terminate these Terms at any time by discontinuing your use of the Symphony Services and (b) Symphony may terminate these Terms immediately for any or no reason, without notice. Symphony may terminate these Terms immediately upon notice by email to you in the event of a material breach by you (as determined by Symphony in good faith) of these Terms. You acknowledge and agree that your account may be subject to your Company’s control and that your Company may restrict or terminate your access to the Symphony Services, and these Terms, at any time.

6.3. Surviving Provisions. Sections 2, 3, 4, 5, 6.1, 6.3, and 7 will survive the termination or expiration of these Terms for any reason whatsoever.

7. GENERAL

7.1. Relationship of the Parties. Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties.

7.2. Miscellaneous. These Terms will be governed by and construed in accordance with the laws of the State of New York applicable to contracts to be performed wholly within such state. Neither party may assign or transfer these Terms or any rights granted hereunder, by operation of law or otherwise, without the other party’s prior written consent, except that Symphony may transfer these Terms without consent (a) to a successor of all or substantially all assets of its business and (b) to an acquirer pursuant to any direct or indirect change in control of Symphony, including without limitation, pursuant to any merger, acquisition, consolidation, or other corporate restructuring in which Symphony participates. If a court of competent jurisdiction determines that any provision, covenant or condition of these Terms, or the application hereof to any person, entity or circumstance is deemed invalid or to any extent unenforceable, that wording insofar as it relates to that person, entity or circumstance will be deemed not to be included in these Terms, and the balance of these Terms will remain in full force and effect and continue to be binding upon the parties. These Terms constitute the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior communications, proposals, representations, agreements and understandings, whether written or oral, relating to its subject matter. Symphony may need to amend and update these Terms from time to time and when Symphony does so, Symphony will provide notice of such amendments or updates to you or your Company by posting the modified terms on its website, on the Symphony Services or through other communications, as appropriate. If you do not agree to such amendments and updates, you will not be able to continue to use the Symphony Services.

7.3. Contact Information. If you have any questions about these Terms or the Symphony Services, please contact Symphony at sales@symphony.com, 1117 S. California Ave, Palo Alto, CA 94304, USA.