ON-LINE TERMS AND CONDITIONS

As posted at https://www.symphonytalent.com/online-terms-conditions/

Dated November 22, 2016

By signing the associated Order Form (“Order Form”), Symphony Talent, LLC (“Symphony Talent”) and Client (“Client” or “You”) agree that the following Terms and Conditions (“Agreement” or “Terms and Conditions”) shall apply to a Client signed Order Form referencing these Terms and Conditions and are accepted by Client for the purchase of, or access to the Symphony Talent services.

1. Definitions.

As used in this Agreement, the terms below have the following definitions.

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common Control (as defined below) with Client or Symphony Talent.

“Agreement” means, collectively, this On-line Terms and Conditions and any Order Form referencing this On-line Terms and Conditions as provided in Section 2.1, below.

“Candidate” means an individual seeking employment or information about employment with Client and who uses the System (as defined below) in relation to such interest.

“Candidate Content” means any and all information submitted by or authorized for submission by a Candidate and provided to Symphony Talent via the System, and which upon Candidate permission may be shared with Client as part of the Services.

“Control” means direct or indirect ownership or control of more than 50% of the voting or ownership interests of an entity.

“Client Content” means all proprietary information, content, data, or other materials that may be provided to Symphony Talent by or for Client in order for Symphony Talent to provide the Services, including all Intellectual Property Rights (as defined below) therein.

“Deliverables” shall mean the output of the Services to be performed by Symphony Talent under an Order Form, including the provision of the Services and any Work Product (as defined below).

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection as may now exist and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

“Order Form” means a written document referencing this Agreement, setting forth the Services to be provided and signed by both Symphony Talent and Client, the terms of which are incorporated into and become part of this Agreement.

“Symphony Talent Content” means any proprietary information, content, data, proprietary compilations of information, ideas and/or messages in written, visual or audible form or other materials owned or controlled by Symphony Talent and used in providing the Services and/or Deliverables.

“System” means the technology, computers, communications network, equipment, storage capacity, back-up services, and other hardware, software, and services that Symphony Talent operates to provide the Hosted Services.

“Third-Party Content” includes any proprietary information, content or materials created and owned by a third-party outside this Agreement.

“Users” means individuals authorized by Client to use the Hosted Services who are issued a user id and password by Client or Symphony Talent.  Users may include employees, contractors, or consultants.

“Work Product” shall mean all Deliverables including, but not limited to, drawings, images, text, copyrightable materials, notes, reports, materials, documents, whether in paper or electronic format, and all Intellectual Property Rights created, developed, prepared, documented, produced or delivered by Symphony Talent or any Symphony Talent subcontractor in providing the Services.  Work Product expressly excludes Symphony Talent Content or Third-Party Content.

2. Fees, Expenses and Payment.

2.1 Client may order Services from time to time using an Order Form.  If Client requires the use of a purchase order or similar document, Symphony Talent’s acceptance of such order will be conditioned upon Client referencing this Agreement in such purchase order.  Should any conflict arise between the terms of this Agreement and any Client purchase order, the terms of this Agreement and not those contained in any purchase order shall govern.

2.2 Unless otherwise provided in an Order Form, Hosted Services are purchased as subscriptions for the term specified in the Order Form.  Professional Services are purchased as stated in an Order Form.  Unless set forth otherwise in an Order Form, pricing may change on renewal or once a year.  Affiliates of Client may use the Services at no additional cost unless the Affiliate requires separate instances of the respective Services, requiring new integration or customization services (i.e. because the Affiliate has separate business processes for hiring or needs to maintain a separate brand identity to Candidates), in which case Symphony Talent may charge additional fees.

2.3 Taxes.  Amounts payable by Client hereunder do not include local, state or federal sales, use, value-added, or other taxes or tariffs of the United States of America or other countries based on the license or sale of the Services provided under this Agreement or Client’s use thereof.  Client shall pay all such taxes imposed upon Symphony Talent or Client, except income taxes imposed on Symphony Talent by the United States of America or any state or local government therein.  All such taxes and tariffs shall be shown separately on Symphony Talent’s invoice and Client shall pay any such taxes or tariffs if Symphony Talent is required to pay such taxes on Client’s behalf.

2.4 Client agrees to pay amounts due within thirty (30) days of the date of invoice.  Payments not made by the due date may incur interest at the lower of one and one half percent (1 ½%) per month or the maximum rate permitted by law.  If Client is more than thirty (30) days past due on invoice payment, Symphony Talent shall provide Client with three (3) business days’ notice of non-payment; if Client has not cured non-payment, Symphony Talent may suspend Client’s use of the Services or withhold Services pending payment of balances thirty (30) days or more past due.  Client may, acting in good faith, dispute part or all of an invoice; provided that Client pays any undisputed portion and provides Symphony Talent with a written statement and any supporting documentation within ten (10) days of the due date and negotiates in good faith to resolve the dispute.

2.5 Provided that Client approves such expenses in advance and Symphony Talent submits appropriate expense documentation, Client will reimburse Symphony Talent for expenses incurred in providing Services to Client including but not limited to, website domain purchases, security certificates, placement of advertising, art and other royalty-based media, etc., and reasonable out-of-pocket travel expenses incurred by Symphony Talent such as air and surface transportation, lodging, car rental, and meals.  Client agrees to pay Symphony Talent for any non-cancelable obligations made by Symphony Talent to a third Party on behalf of and with approval of Client that cannot be canceled, and assume responsibility for any such commitments upon termination or expiration of this Agreement.

3. Proprietary Rights and Licenses.

3.1 Symphony Talent Content.  Symphony Talent, or its licensors, retain all ownership, right, title and interest, including all Intellectual Property Rights therein, in and to all Symphony Talent Content (even if incorporated into a Deliverable) unless otherwise specified in an Order Form.  Symphony Talent grants to Client a fully paid-up, royalty-free, non-exclusive, worldwide license during the Term to use such Symphony Talent Content solely as necessary to receive the Services.  In addition, and to the extent any Deliverable includes Symphony Talent Content, Symphony Talent grants to Client a fully paid-up, royalty-free, non-exclusive, worldwide license to use any and all Symphony Talent Content incorporated in the Deliverables for Client’s internal use.

3.2 Client Content.  Client, or its licensors, retain all ownership, right, title and interest in and to Client Content.  Client grants to Symphony Talent a fully paid-up, royalty-free, non-exclusive license during the Term to use such Client Content solely as necessary to perform the Services, and grants Symphony Talent the right to sublicense Client Content to subcontractors in order to copy, reproduce, publish, publically display and transmit such Client Content solely as needed to perform Symphony Talent’s obligations under this Agreement.  No rights are granted by Client to Symphony Talent other than as expressly stated in this Agreement and any and all such other rights are reserved by Client.  When Client Content is no longer required for performance of the Services, or in any event upon expiration or termination of the Agreement, Symphony Talent will, upon Client request, return Client Content to Client, or at Client’s election, destroy it and certify the destruction of all copies in Symphony Talent’ possession or control.

3.3 Candidate Content.  Client acknowledges that Candidate is sole owner of Candidate Content, and that Client has no right to Candidate Content other than access the Candidate grants to Client through the Services to find and contact the Candidate for employment or other work- or career-related opportunities.  Should this Agreement be terminated, Client’s rights to Candidate Content are as described in Section 7 (Term and Termination) below.  

3.4 Third-Party Content.  Additionally, Client’s ownership of Deliverables that incorporate any Third-Party Content will be subject to such Third-Party’s ownership.  Third-Party Content includes, but is not limited to, images and text purchased as “stock images” and used with or as part of the Services provided by Symphony Talent.  Symphony Talent warrants that it has the right to grant a license to Client to use Third-Party Content solely for the purposes set forth in the applicable Order Form.  No rights are granted to Client other than as expressly stated herein and any and all such rights are reserved by Symphony Talent.

3.5 Ownership of Deliverables.  With the exception of any Symphony Talent Content or Third-Party Content, it is the intent of the Parties that Client shall be the owner of all Work Product, including all Deliverables, specifically created for Client under the terms of this Agreement subject to payment of all fees owed by Client to Symphony Talent for the Services.  Symphony Talent will, and hereby does, assign, convey and otherwise transfer to Client, and its respective successors, licensees, and assigns, all rights, titles and interests worldwide in and to the Work Product, including all Intellectual Property Rights therein. If Symphony Talent has any rights to the Work Product that cannot be assigned as described above including, without limitation, any moral rights or the equivalent thereof, Symphony Talent agrees to waive enforcement worldwide of such rights against Client, its officers, directors, shareholders, agents and employees.  If Symphony Talent has any rights to the Work Product that cannot be assigned or waived as described above, Symphony Talent hereby grants and agrees to grant to Client an exclusive, fully paid-up, and royalty-free license, in perpetuity and worldwide, to fully exercise such rights, including rights to sublicense through multiple tiers of sublicenses.  These rights are assignable by Client.

4. Symphony Talent Responsibilities.

4.1 System Maintenance, Upgrades and Availability.  With respect to Hosted Services, Symphony Talent support, response times, availability and response are specified in the Symphony Talent Service Level Agreement, which is incorporated herein by reference and may be found at https://www.symphonytalent.com/sla, as may be updated from time to time.  Symphony Talent will provide such standard support to Client without additional charge; or additional support with a separate charge as specified in an applicable Order Form.  Symphony Talent, at its sole discretion, may provide and install any maintenance or updates or upgrades to the Hosted Services and System it deems necessary to facilitate its performance under this Agreement.  Hosted Services provided to Client will include all such updates and upgrades that Symphony Talent makes generally available to its clients who subscribe to the same Hosted Services during the term of this Agreement.

4.2 Protection of Client Content.  Symphony Talent shall maintain reasonable administrative, physical, organizational and technical measures for protection of the security, confidentiality and integrity of Client Content.  Symphony Talent shall not use such Client Content, except to provide the Services, prevent or address service and technical problems, or at Client’s request in connection with Client support matters.

4.3 Protection of Candidate Content.  Symphony Talent shall maintain reasonable administrative, physical, organizational and technical safeguards for protection of the security, confidentiality and integrity of Candidate Content.  Symphony Talent shall comply with all applicable laws, ordinances, statutes and regulations regarding the privacy and security of personally identifiable information.  Symphony Talent treats Candidate Content in accordance with the Symphony Talent Privacy Policy found at https://www.symphonytalent.com/privacy (as may be updated from time to time), and except as otherwise specifically provided in an applicable Order Form or as contained in documents or data provided by Candidates. Symphony Talent does not store any personally identifiable Candidate Content other than as specified in the Symphony Talent Privacy Policy.

4.4 Legality; Security.  Symphony Talent will provide the Services only in accordance with applicable laws and government regulations.  Symphony Talent may take the System offline immediately in the event Symphony Talent reasonably perceives there is a security threat or for a violation of the Symphony Talent Terms of Service found at https://www.symphonytalent.com/terms-of-use/, as may be updated from time to time.

5.Client Responsibilities.

5.1 The Client may not, except as otherwise specified in this Agreement, (a) copy any of the Hosted Services; (b) distribute, sell, rent, timeshare, license, sublicense or otherwise transfer or disclose, or transmit or allow the use of any of the Hosted Services to any person or entity; (c) create any link to the Hosted Services or frame or mirror any content contained in or accessible from the Hosted Services; (d) willfully tamper with the security of any Client account; (e) access any Services in order to build a competitive product, or to compete with Symphony Talent or to assert legal claims against Symphony Talent; (f) make Hosted Services available to, or use any Hosted Services for the benefit of, anyone other than Client or its Users; (g) willfully render any part of the System unusable; or (h) use any of the Services for purposes not specified in this Agreement.  The Client shall not permit any other third Party access to the Hosted Services nor permit any other third Party to access or receive content, data or information from the Hosted Services without express written permission from Symphony Talent. Client shall not violate any applicable local, state, federal or foreign law, treaty, regulation or convention in connection with its use of the Services. Client hereby represents and warrants to Symphony Talent that it shall comply with all applicable laws, regulations, statutes and ordinances including all privacy and identity security laws and regulations in all applicable jurisdictions governing the collection and/or use of job applicants’ personally identification information, including Social Security Numbers collected and used through the System.  If the law of any country, or state, prohibits Client from using the Services, in whole or part, (e.g. because Symphony Talent Services are not allowed in the country or state where Client or its customers are located), then Client agrees not to use, or allow the use of, the Services in such countries or states to the extent so prohibited.  Services are for Client’s internal business purposes only.

5.2 Client shall be responsible for its User’s compliance with this Agreement and the Terms of Service found at https://www.symphonytalent.com/terms-of-use and also for the accuracy, quality and legality of Client Content.  If a service provider notifies Symphony Talent of Client activity that violates the service provider’s acceptable use policy by Client which may result in immediate suspension of services to Symphony Talent, Symphony Talent may promptly notify Client and may temporarily suspend Client’s access to the Services pending resolution of the issue.  Client agrees to use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and to notify Symphony Talent of any such unauthorized access or use.  Client represents and warrants that it shall take and maintain full and sole responsibility for all virus scans and/or other measures necessary for the protection of Client’s network from any documents accessed or downloaded by Client’s Users or others accessing the System.  Client is also responsible for its use of non-Symphony Talent provided software and acknowledges that Symphony Talent does not support or warrant such software, unless so specified in an Order Form.

5.3 Client shall be solely responsible for errors in the Services resulting from inaccurate or incomplete data supplied by Client or at Client’s direction.  Client agrees that it will provide the content necessary for the performance of the Services in the form agreed upon.  Client understands and agrees if it submits content in a form other than the form agreed upon, Client shall pay Symphony Talent the reasonable expenses incurred by Symphony Talent in merging, or converting, the content to the form agreed upon, in addition to fees otherwise due under the Order Form.  Client hereby represents and warrants to Symphony Talent that all website content or materials provided by Client, including, but not limited to, images, video, audio, or logos, are owned by Client or Client has received explicit permission to use them, including any necessary permissions from individuals whose photographs or property are used.

5.4 Client shall maintain reasonable administrative, physical, organizational and technical measures for protection of the security, confidentiality and integrity of any Symphony Talent Content and Candidate Content to which Client has access, and will only use such Symphony Talent Content and Candidate Content for purposes of exercising its rights under this Agreement.

5.5 If Symphony Talent discovers a violation of Client’s obligations as set forth in this Section 5, Symphony Talent will provide Client with written or emailed notification of the alleged violation which shall include sufficient details to allow Client to understand the nature of the violation and, if reasonably possible, the identity of the Users alleged to have committed the violation.  As soon as reasonably possible, but in any event within seventy-two (72) hours after receipt of such notice, the Parties will work in good faith to confirm whether or not a violation has occurred.  If a violation has occurred and Client agrees to cure the conduct giving rise to the violation, it shall do so as promptly as reasonably possible and, in any event, within five (5) days; otherwise, Symphony Talent may suspend the Users committing the violation until the conduct giving rise to the violation is cured.  Notwithstanding the foregoing, Symphony Talent shall have the right to immediately suspend Client’s access to the Services in the event that Symphony Talent, or its service provider, reasonably perceives a security threat related to Client’s account or activity that may cause harm to the System or any third Party.

6. Confidentiality.

6.1 Each Party acknowledges that, in the course of the performance of this Agreement, it may obtain the “Confidential Information” of the other Party.  Confidential Information includes information that is disclosed by a Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) and that is: (i) not generally known to the public, and (ii) identified as confidential or, should be reasonably recognized as confidential under the circumstances, including, but not limited to: pricing, business plans, discoveries, ideas, concepts, know-how, techniques, models; and other significant and valuable technical, financial or general business information.  Confidential Information also includes: (i) the terms of this Agreement, (ii) communications (whether oral or written) between the Parties concerning the proposed business relationship and the terms thereof, (iii) the identities of prospective customers, clients, business contacts and business partners of the Parties, and (iv) the fact that a Party hereto is engaged in negotiations for a business relationship.  Additionally, Symphony Talent’s Confidential Information includes, without limitation, any documentation relating to the System, the Services, and any other information (if such other information is identified as confidential or should reasonably be recognized as confidential under the circumstances) provided to Client by, or on behalf of, Symphony Talent hereunder.  Client’s Confidential Information includes, without limitation, all Client Content and any other information, data or materials, if such other information, data or materials are identified as confidential or should be reasonably recognized as confidential under the circumstances; provided by, or on behalf of, Client to Symphony Talent.  If the Parties to this Agreement have already signed a Non-Disclosure Agreement, that agreement shall be terminated on this Agreement’s Effective Date and the obligations regarding Confidential Information herein shall control.

6.2 A Receiving Party under this Agreement will, both during, and for a period of two (2) years after, the term of this Agreement, keep in strict confidence all of the Disclosing Party’s Confidential Information received by it.  The Receiving Party will not use the Confidential Information of the Disclosing Party other than as necessary to perform its obligations or exercise its rights under this Agreement and will not make use of any Confidential Information of the Disclosing Party for its own purposes or the benefit of any person or entity other than the Disclosing Party.  The Receiving Party will take all commercially reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons and shall take no action inconsistent with its confidential and proprietary nature.  The Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement.  Each Party shall be responsible for any breach of confidentiality by its officers, employees, agents and consultants.  The Receiving Party will immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Disclosing Party’s Confidential Information.

6.3 The Receiving Party’s confidentiality obligations will not apply to Confidential Information that the Receiving Party can show: (a) was lawfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (b) is, or through no unauthorized act or omission of the Receiving Party becomes, publicly known; (c) is received by the Receiving Party from a third Party without restriction on disclosure; (d) is independently developed by the Receiving Party without reference to, or use of, the Confidential Information of the Disclosing Party, which independent development the Receiving Party will have the burden of proving; or (e) is approved for release by written authorization of the Disclosing Party; or f) is a “Compelled Disclosure”.  “Compelled Disclosure” shall mean a disclosure of Confidential Information that is required to be made by the Receiving Party pursuant to any order or requirement of a court, administrative agency, or any other governmental agency provided that the Receiving Party must: (i) to the extent permitted by law, promptly notify the Disclosing Party in writing of such order or requirement; and (ii) make commercially reasonable efforts, at the Disclosing Parties’ expense, to give the Disclosing Party a reasonable opportunity to contest and narrow the required disclosure and seek an appropriate protective order (e.g., by providing reasonably detailed information and otherwise cooperating with the Disclosing Party); and (iii) only disclose no more than what is required.  Compelled Disclosure will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes.

6.4 Symphony Talent may compile aggregated, de-identified results or metrics from all or part of Client’s use of the Services, provided that such aggregated results will not contain information that could be used to individually identify Client or its Users.  Symphony Talent shall use such aggregated data in non-personally identifiable form for the purposes of improving the Symphony Talent service, for evaluating global trends for product development and marketing, for optimizing its performance or metrics, and as may be required for accounting or audit requirements, or by law.  Such aggregated de-identified results shall be Symphony Talent Content.

7. Term and Termination.

7.1 The term of this Agreement is for a period of three (3) years from the Effective Date (“Initial Term”), after which this Agreement will automatically renew for successive one (1) year terms unless one of the Parties gives notice of nonrenewal at least ninety (90) days prior to expiration of the term; provided that the term and any renewal of an Order Form will be as stated in an Order Form.  The Initial Term and any subsequent renewal term(s) of this Agreement are referred to as the “Term”.  Notwithstanding the foregoing, the terms of this Agreement shall continue to apply to any outstanding Order Form until such Order Form is complete, expires or is terminated as set forth herein.

7.2 Each Party may terminate this Agreement or any Order Form for cause due to the breach of the other Party of this Agreement or such Order Form, provided the Party in breach has been given notice of such breach in writing and an opportunity to cure such breach of at least thirty (30) days; provided that either Party may terminate this Agreement or any Order Form immediately upon notice in the event of a breach of confidentiality or violation of the terminating Party’s Intellectual Property Rights.

7.3 Upon termination, any and all subscriptions, usage rights, licenses and services granted under this Agreement shall immediately terminate, except for any rights specifically granted to Client in an Order Form with respect to Professional Services.

7.4 Upon termination, all fees earned but unpaid and any approved non-cancelable third party vendor commitments under any Order Form become immediately due and owing.

7.5 If Client has purchased Hosted Services, Client will have 30 days after termination to: (i) use the Hosted Services to download a comma separated value file (.CSV) containing various elements of Candidate Content which will include, at a minimum(provided that it has been entered by a Candidate or User), the Candidate’s First Name, Last Name, email address, telephone number, location, Current Job Title and Employer Name (“Downloadable Candidate Content”); (ii) have secure access to an online database containing the Downloadable Candidate Content and notes, tags, and documents added against the Candidate by Users; (iii) request Symphony Talent to promptly return, at no cost to Client, all or any part of Client Content;  (iv) request Symphony Talent to erase or destroy any part of the Client Content in its possession.  Notwithstanding the foregoing, Symphony Talent shall have the right to retain a copy of Client Content for three years or, as long as required, for purposes of complying with audit, reporting, or similar examination of Symphony Talent records by government authorities.  On request by Client, Symphony Talent shall destroy the Client Content after it is no longer needed for these purposes.

8. Indemnification.

8.1 Symphony Talent agrees to indemnify, defend, and hold Client harmless from and against any (a) claim by a third party that the Services infringe the Intellectual Property Rights of such third party, and (b) breach of Symphony Talent’s obligation of confidentiality under Section 6.  Such indemnification by Symphony Talent shall include indemnification for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.  If any Services become, or in Symphony Talent’s opinion are likely to become, the subject of any such claim or an injunction preventing its use as contemplated herein, Symphony Talent may, at its option: (i) obtain for Client the right to continue using the Services or (ii) replace or modify the Services so that they become non-infringing without substantially compromising their principal functions.  If (i) and (ii) are not reasonably available to Symphony Talent, then Symphony Talent may (iii) terminate this Agreement or any applicable Order Form upon written notice to Client and refund to Client fees that were pre-paid, but unused.

8.2 Symphony Talent shall have no liability or obligation under Section 8.1 above with respect to any claim based upon (a) use of any Services in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) modifications, alterations, combinations or enhancements of the Services not created by or for Symphony Talent, or (c) Client’s continuing allegedly infringing activity after being notified thereof, or its continuing use of any version after being provided modifications that would have avoided the alleged infringement.

8.3 Client agrees to indemnify, defend, and hold Symphony Talent harmless from and against all third party claims, losses, liabilities, damages and expenses arising, directly or indirectly caused by, or flowing from, Client in the use, or misuse, of the Services including, but not limited to, disclosure by Client, its employees, Users or agents, of confidential data or images, including Client Content, Candidate Content, Symphony Talent Content or any other data stored through the Services, or that Client’s usage of the Services or Candidate Content violates or infringes applicable law or third parties’ Intellectual Property Rights or privacy or other personal rights.

8.4 Client acknowledges that its use of certain of the Services may result in the collection, transmission, or storage of Candidate Content or Client Content, including information that individually or collectively may be aggregated to form personally identifiable information.  Such information includes, but is not limited to, Social Security Numbers, account numbers, addresses and other individually identifiable information.  In such event, Client acknowledges that it is aware of the risks involved from the disclosure or misuse of such information and agrees to indemnify, defend and hold harmless Symphony Talent from any third-party claims, causes of action, judgments, damages or costs that may result from Client’s use or misuse of such information or disclosure or violation of other third-party personal or privacy rights due to hacking, viruses or other security breaches.

8.5 Any claim for indemnification under this Section 8 requires prompt written notice of the claim and reasonable cooperation, information, and assistance by the indemnified Party.  The indemnifying Party shall have sole control and authority to defend, settle or resolve such claim.  Notwithstanding the foregoing, the prior written consent of the indemnified Party is required if any settlement, compromise or other agreement or disposition (i) contains a stipulation, admission or acknowledgement of liability or wrongdoing by the indemnified Party; (ii) involves the expenditure of any costs or expenses by the indemnified Party or (iii) imposes any obligation on the indemnified Party.

9. Disclaimer of Warranties. EXCEPT AS (A) REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER, OR (B) EXPRESSLY SET FORTH IN THIS AGREEMENT, SYMPHONY TALENT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”; AND SYMPHONY TALENT MAKES NO, AND DISCLAIMS ALL, WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES OR THE SYSTEMS PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER SUCH WARRANTIES AND REPRESENTATIONS ARE EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, OR OTHERWISE; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SYMPHONY TALENT DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, FREE FROM LOSS, CORRUPTION, ATTACK, ERRORS, VIRUSES, HACKING, OR OTHER SECURITY INTRUSIONS AND SYMPHONY TALENT DISCLAIMS LIABILITY THEREFORE.  ALSO, SYMPHONY TALENT DOES NOT WARRANT ANY CONNECTION TO, OR TRANSMISSION FROM, THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH THE SYMPHONY TALENT SERVICES OR SYSTEMS.

10. Limitation of Liability.

10.1 WAIVER OF CONSQUENTIAL DAMAGES.  EXCEPT TO THE EXTENT PROHIBITED BY APPLICALBE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER, NEITHER PARTY, INCLUDING THEIR AFFILIATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, INVESTORS, LICENSORS, OR ITS SERVICE PROVIDERS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY, SPECIAL OR SIMILAR DAMAGES; INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR LOSS OR CORRUPTION OF DATA OR RECORDS, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 LIMITATION OF LIABILITY.  EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER, NEITHER PARTIES’ AGGREGATE LIABILITY FOR DAMAGES INCURRED IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR STRICT LIABILITY OR ANY FAILURE OF ANY REMEDY TO ACCOMPLISH ITS ESSENTIAL PURPOSE OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT IN THE PAST TWELVE (12) MONTHS TO SYMPHONY TALENT FOR THE PARTICULAR SERVICE GIVING RISE TO SUCH DAMAGES.  CLIENT AGREES THAT THE LIMITATIONS IN THIS SECTION ARE ESSENTIAL ELEMENTS OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE PRICING AND TERMS WOULD BE SUBSTANTIALLY DIFFERENT.

11. Force Majeure. Except for the payment of money, neither Party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, or telecommunications service, third party hosting service provider, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes or fuel crises.  If the act or condition beyond a Party’s reasonable control prevents that Party from performing any of its obligations in a timely manner under this Agreement and continues for thirty (30) days or more, then the other Party may terminate this Agreement, in whole or in part, immediately upon written notice to the non-performing Party.

12. Notices. Any notice under this Agreement shall be sufficiently given if delivered in person or, by overnight courier of national reputation or, by registered or certified mail, postage prepaid, and addressed to the recipient Party at the address stated in the first paragraph of this Agreement or, such other address as may be furnished in writing by any such Party, to the attention of the “Legal Department”.  Such notice shall, if properly addressed, be deemed to have been given as of the date delivered in person or sent, one day after deposition with an overnight courier or four (4) business days after deposition into the US mail.

Email notice may be sent to Symphony Talent at cfo@symphonytalent.com.  Such email notice shall be deemed given when the recipient, by an email sent to the email address for the sender or by a notice delivered by another method in accordance with this Section 12, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email notice for purposes of this Section 12.

13. Waiver; Amendment. No change, waiver or discharge of this Agreement will be valid unless in writing and executed by the Party against whom such change, waiver or discharge is to be enforced.  This Agreement may not be amended orally; but may only be amended in writing signed by both Parties.

14. Governing Law. This Agreement is governed by and construed under the substantive laws of the State of New York.  The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  The Parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the federal and state courts located in New York County, NY in any litigation arising out of or in connection with the Agreement.

15. Insurance. Symphony Talent shall maintain the following insurance coverage for its protection: General Liability insurance, including products liability and completed operations of $1,000,000; Workers Compensation for all Symphony Talent employees according to statutory requirements; Automobiles $1,000,000; Professional and Technical Errors and Omissions $5,000,000; Network and Content Security $5,000,000 and Umbrella liability coverage of $5,000,000.

16. Reservation of Rights. Except for those rights expressly granted by Symphony Talent to Client, all other rights are reserved to Symphony Talent.

17. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision will be changed to the fullest extent permitted by law by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision, and the remaining provisions of this Agreement will remain in effect, unless the modification or severance of any provision has a material adverse effect on a Party, in which case such Party may immediately terminate this Agreement by notice to the other Party.

18. Relationship of the Parties.  Symphony Talent is an independent contractor and is not an agent, employee, legal representative, partner or joint venturer of Client. Nothing in this Agreement shall be deemed to create a joint venture or partnership between the Parties.

19. Assignment.  Neither Party may assign, voluntarily, by operation of law or otherwise, any rights or delegate any duties under this Agreement without the other Party’s prior written consent, except in the case of a merger, acquisition, reorganization, consolidation, reincorporation, or sale of all or substantially all of the assets of the Party. Any attempt to do so without consent will be void.  This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

20. Ethical Practices.  It is the policy of Symphony Talent to conduct all of its business transactions in accordance with the highest ethical standards and all applicable laws (including but not limited to the U.S. Foreign Corrupt Practices Act). No individual who is employed by or who represents Symphony Talent, and no individual or entity that contracts with Symphony Talent or otherwise performs services on behalf of Symphony Talent, is permitted to solicit, accept, offer, promise or pay any bribe, kickback or any other improper payment of money, products or services.  This includes, but is not limited to, any improper payment in exchange for (i) Symphony Talent’s execution of this Agreement, (ii) any action taken by such individual on behalf of Symphony Talent, or (iii) any action taken by a third party.

21. Conflicts. In the event of a direct conflict between the specific terms of a Symphony Talent Order Form and this Agreement, the specific terms of the Order Form shall control; provided, however, that the terms and conditions set forth in this Agreement shall always control with respect to limitations of liability, indemnification obligations, representations and warranties, confidentiality obligations and governing law.

22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts together shall constitute one and the same instrument and may be sufficiently evidenced by one counterpart.  Execution of this Agreement at different times and places by the Parties hereto shall not affect the validity hereof.
23. Captions. The captions in this Agreement are solely for convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.

24. Survival. The following sections shall survive termination of this Agreement and remain in effect: 1, 2 (as to any amounts outstanding), 6, 7.4, 9, 10, and 13 through 25.

25. Entire Agreement. This Agreement, related Order Forms and any other attached exhibits constitute the final, entire, and exclusive agreement between the Parties and supersede all prior agreements and understandings between the Parties, written or oral or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.