These Roosted Service Terms (these “Service Terms”) are between Roosted, Inc., a Delaware corporation (“Roosted”) and the person who submits an order for Roosted’s services (“you”). Capitalized words in these Service Terms have special meanings. See Section 11 (Defined Terms) at the end of these Service Terms.
Roosted may modify these Services Terms at any time, but modifications are not effective for Orders that are in place prior to the modification until the Order renews or you add new services to your account. See Section 10.21 (Changes to Online Terms).
If you have any questions about these Services Terms, please contact sales@roostedhr.com
1. Services
1.1 Services
Roosted agrees to provide the Services for the Term on the terms and conditions stated in the Order and these Service Terms. Roosted makes the following commitments:
1.1.1
The Services will include those features listed in your Order. The Services include updates that Roosted makes generally available to its other subscribers for the same Services, subject to any fees and terms that may apply to new features.
1.1.2
Roosted will use commercially reasonable efforts to make the Services available to you 24 hours per day, 7 days per week, year-round, excluding reasonable maintenance. If your Order includes a service level commitment or “SLA” for availability, Roosted makes the availability commitment to you described in that SLA.
1.1.3
Roosted will provide online support documentation for your use. Your Order or SLA includes details on how to contact Roosted for support. Roosted weekend and holiday support is provided for urgent issues only. Weekends start Friday at 6 p.m. and end Monday at 8 a.m., United States Central time. Holidays are federal public holidays in the United States and other Roosted-announced support holidays.
2. APIs
The Roosted API(s) are licensed to you on a non-exclusive, limited term basis for your use only in connection with the Roosted Services as permitted by the Agreement, and subject to all of the restrictions and conditions stated in the Agreement. Roosted will give you at least five (5) days advance written notice of any change to its API(s) unless a change is needed to address a critical service issue.
3. Third Party Services
Third party services include integrations and other services that you purchase from third parties and elect to integrate with your Services, such as accounting, customer relationship management, and Applicant Tracking Software. Roosted does not endorse or recommend any third-party service, and you are responsible for investigating the quality and suitability of your third-party services. For any third party service that you use or integrate with the Services, or that Roosted integrates for you at your request, you represent and warrant to Roosted that you have the necessary rights and licenses from the third party service provider to use their services as integrated with the Roosted Services. Roosted makes no representation or warranty whatsoever regarding the third-party service and, as between you and Roosted, the third-party service is provided AS IS. Your use of the third-party service is subject to the legal agreement between you and the third party. You should review the third party’s legal terms and privacy policies before using their services.
4. Integration Features
Roosted provides integration features for third-party services as part of the Roosted Service. You acknowledge that Roosted’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the Roosted integration feature. Roosted will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services, but may discontinue an integration feature without liability to you if there is a change in the service that creates an unreasonable cost or operational burden to Roosted. Your obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features.
5. Your Data
The Personal Data, text, and graphic content that you, your workers, your users, or customers transmit to the Services, or create by means of the Services is “Your Data.” As between you and Roosted, you own and retain ownership and all rights in Your Data and Roosted may use Your Data only for the purpose of providing the Services and exercising its legal rights and remedies in connection with the Agreement. “Your Data” does not include system generated data about your use of the Services, such as user behavior or resource utilization, so long as the system generated data is not Personal Data. Roosted may aggregate Your Data with similar data from public or private data sets, including aggregate data of Roosted’s other customers, and use and commercialize the resulting data sets and insights derived from the analysis of the resulting data sets (“Aggregate Data”), provided that: (i) if the data used to create the Aggregate Data includes any Personal Data, Roosted either excludes this data from the data set, or de-identifies the data in accordance with applicable regulatory standards, and (ii) Roosted removes from the data set any information that identifies Customer.
6. Fees & Payments
6.1 Fees
The fees for the services are stated in the Order. Roosted may not increase the fees during your initial Order term, but may increase its fees for any renewal term by giving you notice of the increase at least twenty (20) days prior to the first day of your next billing cycle. Any discounts described in the Order are for the initial term of the Order only unless otherwise stated in the Order. Fees are stated and must be paid in United States Dollars. You must pay any base, minimum, or fixed fees associated with your active Plan even if you do not use the Services. Certain terms used in the Plan have specific meanings as follows:
6.1.1
“SMS” or “Text Messages” means a message or part of a message sent to or received from or to Roosted between mobile phones and or mobile phone service providers. Roosted, you, and your users may send and or receive messages through the services provided that are single or multiple segments, depending on the length, content, and encoding of the message. SMS usage is billed per segment.
6.1.2
Roosted provides SMS functionality as part of its services. While certain plans may include “unlimited” SMS usage, such usage is subject to reasonable and fair use as determined solely by RoostedHR. If not explicitly specified in your agreement, SMS usage is limited to what RoostedHR considers reasonable based on industry standards and typical customer usage patterns. Excessive SMS usage that exceeds this reasonable threshold may result in additional fees or restrictions. RoostedHR reserves the right to assess usage levels, notify customers of excessive usage, and apply overage charges or take other appropriate actions, including limiting SMS functionality, to ensure fair and sustainable service for all users. For details on SMS pricing and limits, please refer to your specific agreement or contact RoostedHR support.
6.1.3
Usage means the measure of the use of a particular Services feature during a billing cycle according to the metric described in your Plan, measured by Roosted by means of the Services platform on the last day of the billing cycle.
6.2 Sales Tax
The stated fees do not include any sales, use, VAT or like taxes (“Sales Tax”). You must pay any applicable Sales Tax that Roosted is required to collect from you under applicable law.
6.3 Billing Cycle
Fees are charged on a monthly basis unless otherwise stated in the Order. Your “billing cycle” begins on your Services activation date and continues until the last day of the calendar month. Each subsequent billing cycle is a full calendar month.
6.4 Payments
Unless you have made other arrangements with Roosted, you must authorize and maintain a current valid means for Roosted to collect its fees for the Services via credit card at all times during the Term. Roosted may charge the fees on or after the following times: (i) for monthly minimums, base fees, and other fixed monthly recurring fees, the first day of each billing cycle, (ii) for usage fees, and other variable fees, the last day of each billing cycle, or more often if your usage fees are unusually high for your account type, (iii) for one-time fees (such as set up or onboarding fees), the day you submit the Order that includes the fee, and (iv) for hourly fees, at the time stated in the Order, or if no time is stated, on start, completion, or milestone of the hourly services described in the Order. Roosted may charge any applicable Sales Tax with the charge for the related Service, or separately. If Roosted agrees to accept payments against invoices, Roosted may invoice the fees at the times stated in this Subsection, and invoiced fees are due 30 days from invoice date unless otherwise agreed by Roosted in writing.
6.5 Late Payments
Roosted may suspend or terminate your Services or the Agreement if your payment is overdue, including if Roosted’s charge to your payment card or account is rejected. Roosted may charge interest on overdue amounts at the greater of 5% per month or the highest non-usurious amount permitted by applicable law. If Roosted takes legal action to collect an overdue amount, you must also pay Roosted’s reasonable costs of collection, such as attorney fees and court costs. If Roosted suspends your account for late payment, you must pay Roosted’s reasonable reinstatement fee, not to exceed 25% of the average total of your last 3 billing cycles.
6.6 Plan Changes
You may upgrade your Plan at any time by giving notice to Roosted. You may terminate your Services completely as provided in Section 8 (Term and Termination).
6.7 Currency
All currencies, unless otherwise stated, are in USD.
6.8 General
Fees are non-refundable. If Roosted discounts your fees in exchange for your commitment to a Term length of longer than one month and the Order is terminated prior to the end of the committed term then, unless the termination was by Roosted for convenience, or by you for Roosted’s breach, you must pay an early termination fee equal to the difference between the undiscounted and discounted fees for the period prior to the effective date of termination.
7. Your Obligations
7.1 Fees
You must pay your fees when due for the Term. You must not use or attempt to use the Services in a way that undermines Roosted’s ability to correctly calculate its fees.
7.2 Your Security Obligations
You must use reasonable security precautions in connection with your use of the Services, such as requiring your users to establish reasonably secure passwords and using commercially reasonable efforts to protect your systems and data from malware. You may not interfere, or attempt to interfere, with the encryption features of the Services.
7.3 Authorized Users
You may not authorize anyone to use your Services or Services account as an “admin” other than your employees or other personnel, or the employees or personnel of your contractors who are subject to written restrictions that limit their use of the Services to supporting your internal business functions.
7.4 Acceptable Use
You may not use the Services in connection with any illegal or abusive activities, as determined by Roosted in its reasonable discretion, or in violation of the AWS Acceptable Use Policy at https://aws.amazon.com/aup/
7.5 Backups
You must create a backup of Your Data at reasonable intervals and retain that backup in a secure location.
7.6 Compliance with Law
You must use the Services in compliance with applicable law.
7.7 Representations and Warranties
You represent and warrant to Roosted as of the effective date of each Order and on an ongoing basis that:
(i) the information you submit about yourself and your activities to establish a Services account with Roosted and place an Order is true, correct, and complete, (ii) you have not been the target of any legal or regulatory investigations or proceedings in connection with your business activities, and (iii) Your Data was collected in accordance with applicable law, and that you have all necessary rights and authority to use and process Your Data as contemplated by the Agreement.
8. Term and Termination; Suspension
8.1
The Agreement shall begin on the effective date as specified in your Order (“Order Effective Date”) and shall continue as specified in your Order (the “Initial Term”), automatically renewing thereafter for successive periods of twelve months each (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated. Roosted reserves the right to suspend or terminate the Services in whole or part at any time, with or without cause, and with or without notice, without incurring liability of any kind. For example, Roosted may suspend or terminate your use if you are not complying with the Agreement, or if you use the Services in any way that may cause us legal liability or disrupt others' use of the Services or damage to Roosted’s business or reputation, or for any other reason. If Roosted suspends or terminates your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating the Agreement, a court order, or danger to other users) where Roosted may suspend or terminate immediately. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to Your Data that is stored with the Service. Either Party may terminate the autorenewal of the Agreement and/or the autorenewal of any Order upon written notice to the other Party, which notice is given at least thirty (30) days prior to the end of the applicable then-current Initial or Renewal Term, as the case may be.
8.2
Section 8.2 has been omitted.
8.3 Suspension
Roosted may suspend your access to the Services and Your Data during any period that you are in material breach of the Agreement or your access to the Services or Your Data creates a material security vulnerability. Roosted will give you at least two (2) business days’ advance notice of the suspension, unless the suspension is made under emergency circumstances. Roosted will reinstate your access to the Services when the grounds for suspension are cured unless Roosted has already terminated the Agreement as described in this Section.
8.4 Surviving Provisions
The following sections survive expiration or termination of the Agreement: Fees and Payment, Confidentiality, Indemnification, Limitation of Liability, Term and Termination, Suspension, Governing Law, Disputes, Notices, General, and any other terms that by their nature are intended to survive expiration or termination.
8.5 Return of Your Data
You are responsible for exporting Your Data from the Services prior to expiration of the Agreement. If Roosted terminates your Services for breach, Roosted will retain Your Data for at least 15 days from the effective date of termination. If you wish to export Your Data following a termination for breach, Roosted will either, at its option, enable short term access to the Services at a scheduled time so that you may export Your Data, or export Your Data using its standard export tools. Roosted has no obligation to retain Your Data after the 15-day period and may destroy Your Data. Roosted has no obligation to assist you with the export of Your Data. Roosted may be available to assist with data export on an hourly fee basis at a time scheduled by Roosted.
9. Indemnification
9.1
Your indemnity to Roosted: You will defend and hold Roosted and its affiliates, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Your Data; (ii) your violation of any third party rights (including third party intellectual property rights or privacy rights); and (iii) your use of the Services in any way contrary to the Agreement.
9.2
The Party seeking indemnification under the Agreement will: (i) give the indemnifying Party prompt written notice of the claim, (ii) tender to the indemnifying Party control of the defense and settlement of the claim, and (iii) cooperate with the indemnifying Party in defending or settling the claim. The indemnified Party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Party’s prior written consent, which may not be unreasonably withheld.
10. Limitation of Liability
10.1
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL Roosted, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT Roosted HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE AGGREGATE LIABILITY OF Roosted TO YOU, ANY AFFILIATE OR ANY THIRD PARTY FOR ALL CLAIMS RELATING TO THE SERVICES OR CONNECTED WITH THE AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID OR OWING TO Roosted UNDER THE AGREEMENT IN THE FOUR (4) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE LIMITATION OF LIABILITY PROVIDED IN THIS PARAGRAPH WILL APPLY IN THE AGGREGATE TO YOU AND YOUR AFFILIATES AND SHALL NOT BE CUMULATIVE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURPOSE OF THIS PARAGRAPH IS TO PROVIDE FOR THE ALLOCATION OF RISK AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY THAN PROVIDED FOR HEREIN.
10.2
Some states do not allow the types of limitations in this paragraph, so they may not apply to you. IN THOSE JURISDICTIONS, Roosted’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.3
In addition, Roosted and its authorized personnel may require access to Your Data or account for the purposes of assisting you with any step of your account setup or any other troubleshooting, including attaining email connectivity. Neither Roosted nor any of its employees will be liable in cases where this access exposes us to your private data, including employee info, message and email metadata and content. By using Roosted, you agree to permit Roosted representatives these permissions only when circumstances necessitate it. Roosted reserves the right to assist in these ways when needed and will keep information confidential as per it’s Privacy Policy.
11. Governing Law
The Order and these Services Terms are governed by and should be interpreted under the laws of the State of Texas and County of Dallas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act.
12. Notices
Your notices must be submitted via ticket on the customer portal, and copied by electronic mail to support@roostedhr.com. Roosted’s notices to you must be given to your primary account contact at the email address in the Roosted portal. If you send a notice of breach of the Agreement, a legal disputes, a legal claim, or other legal matter, you must copy your notice to support@roostedhr.com, and must also send your notice via first class United States mail to Roosted’s physical address appearing on its Site on the day the notice is transmitted electronically. Roosted’s legal notices to you must be copied via first class United States mail to your physical notice address, or if your physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
13. Arbitration
Except for certain requests for injunctive relief as described below, each of you and Roosted agree that any dispute related to the Services, an Order or these Services Terms shall be submitted to binding arbitration in Dallas, Texas. The arbitration shall be conducted by one arbitrator in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA"). The arbitration will be conducted in person unless each of party agrees to a telephonic or written submissions procedure. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. Each party waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each party agrees not bring a claim related to the Services or the subject matter of an Order or these Services Terms more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
14. Force Majeure
Except for your payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
15. Publicity
You agree that Roosted may identify you as its customer, using your company name and logo, on its website where it identifies its customers generally, and Roosted agrees that you may identify it as your service provider on your website using the Roosted name and logo. In addition, You will consider Roosted’s requests to participate in the development of product whitepapers, testimonials for Web publication, and other like materials for publication. You may not issue press releases or any public announcements without Roosted’s written consent. Each party may use the other party’s trade or service marks in connection with approved activities, and otherwise with the other party’s prior consent. Each party shall use the other’s trademarks subject to the other party’s reasonable trademark usage guidelines that are communicated to the party from time to time.
16. Relationship of the Parties
The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.
17. Interpretations
In calculating any period of time under this Agreement, the day of the act, event or default from which the designated period of time begins to run is not be included. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. The word “affiliate” refers to an individual or entity that controls, is controlled by, or is under common control with the person referred to, where control means ownership of the majority of voting interests of an entity or the right to control the policies of the entity by means of a controlling number of seats on the entity’s governing body. The use of the word “including” should be read to mean “including, without limitation.” All references to monetary amounts mean United States Dollars. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement. For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. All software and other technology provided for your use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription service. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement.
18. Severability
In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
19. Changes to the Services
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Roosted regarding future functionality or features. You acknowledge that Roosted may modify or suspend any of its Services offerings at any time. If a modification or suspension materially and adversely affects your use of the Services, you may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees as your sole and exclusive remedy.
20. General Representations
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
21. Definitions
These terms have the meanings stated: Documentation means Roosted’s user and administration guides, FAQ’s, Whitepapers and other materials designed to explain the use of the Services, but not including any marketing materials or publicity. Order means an order form prepared by Roosted that you have submitted and that Roosted has accepted that describes the features of the Roosted service plan you selected, and the related fees and Term. Personal Data means information that can be used to identify an individual. Plan means a Roosted bundle of Services included as part of a single offering described on the Roosted Site. Services means Roosted’s recurring billing services, communications tools, dashboard, portals, reporting tools, API’s, and all related services and Support. Site means www.roostedhr.com, or any other website operated by Roosted for the purpose of offering or providing Services, including any subdomains. Support means the use of the Documentation, and any live human support that is included with the Plan that you Purchase. Term means the initial term and any renewal terms, collectively. System Data has the meaning given in Section 5 (Your Data).