Updated June 3, 2013
SymphonyAM (together with its affiliates and subsidiaries) reserves the right to modify these Terms at any time and from time to time, and each such modification shall be effective once posted. Your continued use of the Media Insiders site or Activities following any such modification constitutes your agreement to be bound by and your acceptance of these Terms as so modified. Therefore, it is important that you review these Terms regularly. If you do not agree to be bound by these Terms, then you must discontinue your use of the Media Insiders site and participation in Activities immediately (process listed in Cancellation section of document). If we change our Terms we will notify you via e-mail regarding the change.EligibilityYou must be 13 years of age or older and a U.S. resident to register as a Media Insiders Panelist. If you are not 13 years of age or older, you may not use the Media Insiders site or participate in Activities. When you register as a panelist, you must provide your e-mail address and select a password (your "Account Credentials"). SymphonyAM may refuse your registration or, once registered, your subsequent use of the Media Insiders site and/or participation in Activities at any time, in its sole discretion. Without limiting any other remedies, SymphonyAM may suspend, temporarily or permanently, or terminate your use of the Media Insiders site and/or participation in any Activities if you fail to abide by these Terms, or for any other reason. You may register only once to use the Media Insiders site and participate in each unique Activity. As part of your registration on, and use of, the Media Insiders site and your participation in Activities, you will be enrolled (if you are not enrolled already) in SymphonyAM's incentive programs.
At this time we are accepting the following devices:
iPhone® 5, iPad®, iPad mini®, and iPod touch® devices that run iOS version 5.0 or greater.
Limitations of Membership, Rewards, Non-Transferable Panelists may enroll in one of SymphonyAM's incentive programs ("Rewards") for participation in certain Activities:
Any material downloaded or otherwise obtained through your use of the Media Insiders site and participation in Activities is accessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from you downloading or otherwise accessing such material. Limitation of LiabilityIN NO EVENT SHALL SymphonyAM OR ITS PROVIDERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING FROM YOUR USE OF THE MEDIA INSIDERS SITE AND PARTICIPATION IN ACTIVITIES, EVEN IF SymphonyAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SymphonyAM'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION WILL AT ALL TIMES BE LIMITED TO TEN DOLLARS ($10.00). Some states/countries do not permit the exclusion of damages, so the foregoing limitation may not apply to you.
You acknowledge that SymphonyAM assumes no responsibility or liability for the accuracy of material contained on the Media Insiders site, or any infringement of third party intellectual property rights arising therefrom, or any fraud or other crime facilitated thereby.
You hereby release SymphonyAM, its officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Media Insiders site, or (ii) your participation in any Activities. You hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor" and you waive any other similar provision of the laws of any other applicable jurisdiction.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Media Insiders site, your participation in Activities, these Terms, or any applicable Other Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. IndemnificationYou agree to indemnify and hold SymphonyAM and its representatives, officers, directors, employees, agents, licensors, clients, and partners harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys' fees, due to or arising out of (i) your use of the Media Insiders site, software or participation in Activities in violation of these Terms or any applicable Other Terms; (ii) any User Content that you upload, post, submit, or otherwise transmit through your use of the Media Insiders site or participation in Activities; or (iii) your breach of these Terms.Compliance with Laws; Prohibited ConductYou shall comply with all applicable laws, statutes, ordinances, and regulations in connection with your use of the Media Insiders site and participation in Activities. You agree not to: (i) access the Media Insiders site using automated means (such as harvesting bots, robots, spiders, or scrapers); (ii) frame portions of the Media Insiders site within another Web Site; (iii) alter the appearance of the Media Insiders site; or (iv) upload viruses or other malicious code to the Media Insiders site or another site that hosts an Activity.No AgencyNo agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by these Terms. You and we are independent contractors. You are not entitled to or eligible for any benefits that we may make available to our employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, we will not withhold or make payments for social security or payroll taxes of any kind, make unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on your behalf, nor you will be entitled to any of the foregoing. If, notwithstanding the foregoing, you are reclassified as an employee of Symphony, or any affiliate of ours, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by us. In addition, you waive any and all rights, if any, to participation in any of the fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers' compensation coverage, and pension or 401(k) benefit(s) provided by us to its employees.NoticesExcept as explicitly stated otherwise, any notices shall be given by e-mail to email@example.com (in the case of notice to SymphonyAM) or to the e-mail address you provide to SymphonyAM during the registration process (in the case of notice to you), or such other address as a party shall specify in writing. Notice shall be deemed given twenty-four (24) hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, SymphonyAM may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided by you during the registration process, if applicable. In such case, notice shall be deemed given three (3) days after the date of mailing.Legal Action; ArbitrationSymphonyAM reserves the right to take appropriate legal action, including, without limitation, referral to law enforcement, in the event of any illegal or unauthorized use of the Media Insiders site or participation in Activities.
All controversies, disputes, demands, counts, claims, or causes of action between you and SymphonyAM arising out of, under, or related to these Terms or our privacy practices (including any action we take or authorize with respect to information about or provided by you) shall be settled exclusively through binding arbitration.
a. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by these Terms, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA's Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures").
b. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
c. You and SymphonyAM must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and SymphonyAM, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator's ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR SymphonyAM MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, SymphonyAM will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) SymphonyAM also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or SymphonyAM shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/SymphonyAM customer; and (j) each side pays its own attorneys' fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees' and litigation expenses.
e. With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor SymphonyAM shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and SymphonyAM shall be exclusively brought in the state or federal courts specified in subsection "(d)" above.
f. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA Web Site at http://www.adr.org/ .GeneralThese Terms and any applicable Other Terms shall be governed in all respects by the laws of the State of New York without giving effect to that State's provisions regarding conflicts of laws. If any provision of these Terms or any applicable Other Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. SymphonyAM's failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. If you do not agree with these Terms or any applicable Other Terms, or any future modifications to these Terms or the applicable Other Terms, your sole and exclusive recourse is to not use the Media Insiders site and participate in Activities. These Terms set forth the entire understanding and agreement between you and SymphonyAM with respect to the subject matter hereof.
We can only give you the benefits of our program by conducting business through the Internet, and therefore we need you to consent to our giving you communications electronically. This Section 17 informs you of your rights when receiving communications from us electronically. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications ("Communications") that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if they were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Media Insiders site and participating in Activities. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your e-mail or mailing address so that you continue to receive all Communications without interruption. Contact UsMedia Insiders Panel SupportSymphony Advanced Media250 Sutter Street, Suite 400San Francisco, CA 94108 USAE-mail: firstname.lastname@example.org Telephone: (855) 209-2230 (toll free), Monday – Friday: 8:00 am-5:00 pm, Eastern Time
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