Last Updated: January 1, 2019
Website Terms of Service
Agreement to Terms
For the avoidance of doubt, if you sign up for an account for the free instance of Symphony’s secure team collaboration tool through https://my.symphony.com/#signup, then your use of that account and free instance will be governed by the terms of service located on that website, and not by these Terms of Service.
Changes to Terms or Site
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Site after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Site anymore. Because our Site is evolving over time we may change all or any part of the Site, at any time and without notice, at our sole discretion.
Who May Use the Site
You may use the Site only if you are 18 years or older and capable of forming a binding contract with Symphony and are not barred from using the Site under applicable law.
Registration and Your Information
If you want to receive additional information about Symphony (including, for example, Symphony sales brochures, product descriptions and documentation) or the Site you may do so by filling out and submitting the form information on the relevant symphony.com landing page, or by contacting us via email. It’s important that you provide us with accurate, complete and up-to-date information and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. Additionally, if you contact us through one of these means (including by providing Feedback, as described below), you are consenting to be contacted by us with regard to your query, as well as to provide you with further information about our services.
Content and Content Rights
For purposes of these Terms of Service, “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Site.
Content Ownership, Responsibility and Removal
Subject to the foregoing, Symphony and its licensors exclusively own all right, title and interest in and to the Site and Content, including all associated intellectual property rights. You acknowledge that the Site and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Content.
Rights in Content Granted by Symphony
General Prohibitions and Symphony’s Enforcement Rights
You agree not to do any of the following:
We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice. We have the right to investigate violations of the Terms or conduct that affects the Site. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Site may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Site, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of access to the Site, the following provisions will survive: “Feedback”, “Content and Content Rights”, “Content Ownership, Responsibility and Removal”, “Warranty Disclaimers”, “Indemnity”, “Limitation of Liability”, “Dispute Resolution” and “General Terms”.
THE SITE AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Symphony and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Site or Content or (ii) your violation of the Terms.
Limitation of Liability
NEITHER SYMPHONY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SITE ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SYMPHONY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL SYMPHONY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO SYMPHONY FOR USE OF THE SITE OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SYMPHONY, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SYMPHONY AND YOU.
NOTHING IN THE FOREGOING SHALL SERVE TO LIMIT DAMAGES OR PENALTIES THAT CANNOT BE LIMITED OR WAIVED UNDER APPLICABLE LAW.
These Terms of Service and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Symphony agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Symphony are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Symphony otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Service.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org and a separate form for California residents at www.adr.org.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Symphony otherwise agree, the arbitration will be conducted in New York County, New York. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Symphony submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in the arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the “Modification” section above, if Symphony changes this “Dispute Resolution” section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Symphony’s email to you notifying you of such change, if applicable. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Symphony in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
The Terms constitute the entire and exclusive understanding and agreement between Symphony and you regarding the Site and Content, and the Terms supersede and replace any and all prior oral or written understandings or agreements between Symphony and you regarding the Site and Content. If for any reason a court of competent jurisdiction finds any provision of the Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of the Terms will remain in full force and effect.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Symphony’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null. Symphony may freely assign or transfer these Terms of Service without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Symphony under these Terms of Service, including those regarding modifications to the Terms, will be given: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Symphony’s failure to enforce any right or provision of the Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Symphony. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise.
If you have any questions about the Terms or the Site, please contact Symphony at firstname.lastname@example.org or by postal mail at:
Symphony Communication Services, LLC
1117 S. California Avenue
Palo Alto, CA 94304