Terms & Conditions
SUBSCRIPTION AGREEMENT
THIS AGREEMENT GOVERNS YOUR PURCHASE AND USE OF SERVICES. BY ACCESSING OR USING SERVICES, YOU AGREE TO THESE TERMS. IF YOU'RE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU CONFIRM THAT YOU ARE OVER 18 YEARS OF AGE AND HAVE THE AUTHORITY TO BIND THE ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE "CUSTOMER" OR "YOU" REFERS TO SUCH ENTITY AND ITS AFFILIATES.
IF YOU'RE BEING INVITED TO ACCESS AND USE THE SERVICES BY A CUSTOMER AS AN AUTHORIZED USER, THE USER TERMS OF SERVICE GOVERN YOUR ACCESS AND USE OF THE SERVICES.
ALTHOUGH ROSTEREM USES AUSTRALIAN SPELLING CONVENTIONS, CAPITALIZED TERMS HAVE THE DEFINITIONS CONTAINED IN THIS AGREEMENT.
This Agreement becomes effective between Customer and Rosterem when Customer accepts it.
1. Definitions
Acceptable Use Policy means Rosterem's policy published at rosterem.com/terms.
Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. Control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Agreement means this Subscription Agreement, including the Product Specific Terms where applicable.
Applicable Law means any laws, statutes, ordinances, regulations, rules, practice notes, circulars, and any other notifications issued by any government entity or regulatory authority pursuant to such laws that apply to the Services in any jurisdiction.
Authorized User means individuals who (a) are authorized by Customer to access the Services where Customer has purchased a subscription (or for free Services, for whom a Service has been provisioned), (b) have accepted the User Terms, and (c) to whom Customer (or Rosterem at Customer's request) has supplied user identification and password. Authorized Users may include employees, consultants, agents or contractors of Customer.
Beta Services means Services clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by similar description that may be made available to Customer to try at no additional charge.
Customer means the individual accepting this Agreement on their own behalf, or the company or other legal entity for which an individual accepted this Agreement, and the Affiliates of that company or entity (for as long as they remain Affiliates), which have also placed an Order.
Customer Data means electronic data and information submitted by or on behalf of Customer or an Authorized User linked to the Customer to the Services. 'Submit' includes submitting, uploading, transmitting or otherwise making available Customer Data to or through the Services.
Customer Installation means the installation program of the Rosterem Application made available by Rosterem to the Customer through a nominated URL published or provided by Rosterem to the Customer.
Rosterem, we or us means the applicable entity described in section 13.9 (Rosterem Contracting Entity, Governing Law and Venue).
Rosterem Application means any version of the employee scheduling, time and attendance, task management, business procedure management, payroll integration, workplace social media services and other online software applications made available by Rosterem for use by the Customer and its Authorized Users, including (where applicable) the Customer Installation.
Force Majeure Event means a strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, any outbreak or escalation of hostilities, government law, regulation, restraint or requirement, internet service provider failure or delay, denial of service attack or any other cause beyond the reasonable control of a party.
Free Services means Services provided free of charge, excluding Services offered as a free trial and Purchased Services.
DPA means the Data Processing Addendum at Rosterem's Privacy Centre.
Initial Term is the period of time specified in an Order. If no Initial Term is stated, then the subscription is not subject to any Initial Term.
Legal Requirements has the meaning given by the Product Specific Terms.
Malicious Code means code, files, scripts, agents or programs intended to do harm, including viruses, worms, time bombs and Trojan horses.
Marketplace means an online directory or marketplace of applications that interoperate with the Services.
Non-Rosterem Application means a web-based, mobile, offline or other software application with functionality that interoperates with a Service, provided by Customer or a third party and/or listed on a Marketplace.
Order means an order for Services placed by a Customer or any of its Affiliates with Rosterem by completing and submitting Rosterem's standard form ordering document or using Rosterem's online purchasing portal subject to Rosterem's terms and conditions accepted by the Customer during ordering. By placing an Order, an Affiliate agrees to be bound by this Agreement.
Pricing Policy means Rosterem's pricing policy for Services published at rosterem.com/pricing.
Product Specific Terms means the supplemental terms and conditions for specific Rosterem products or features published at rosterem.com/terms/product-specific-terms.
Purchased Services means Services that Customer or Customer's Affiliate purchases under an Order, as distinguished from Free Services or those provided under a free trial.
Services means the products and services Ordered by Customer or provided free of charge or under a free trial, and made available online by Rosterem, including associated offline or mobile components (including SMS services). Services exclude Non-Rosterem Applications.
Subscription Term means the term of a subscription for Purchased Services including any renewal or extension.
Third Party Products or Services means non-Rosterem proprietary products and services, including Non-Rosterem Applications and implementation, customization, consulting or other services.
User Terms means the User Terms of Service provided by Rosterem to persons invited by the Customer to become Authorized Users during online account creation and registration following the Customer's acceptance of this Agreement.
2. Rosterem obligations
2.1 Provision of Purchased Services. Rosterem will (a) make Services available to Customer pursuant to this Agreement and applicable Orders (b) provide standard support for Purchased Services at no additional charge and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make online Purchased Services available 24/7, except for: (i) planned downtime (with advance electronic notice), and (ii) unavailability caused by circumstances beyond Rosterem's reasonable control, including Force Majeure Events. To enable support and monitoring of lawful use, Customer grants Rosterem the right to access Customer Data and Customer Installation during the Subscription Term and will assist Rosterem in obtaining such access.
2.2 Access by Authorized Users. A subscription allows an Authorized User to access and use the Services. Each Authorized User must agree to the User Terms. Customer must ensure all Authorized Users keep their authentication credentials strictly confidential per the User Terms.
2.3 Customer Data. Customer will obtain all necessary consents, provide required notices, and comply with applicable laws (including data protection laws) to allow Customer to disclose Customer Data to Rosterem for processing under this Agreement. Subject to the DPA, Customer will not use Services to process "sensitive" Personal Data under Applicable Law or Excluded Data (including data covered by EU Regulation 2016/679 Article 9, HIPAA Protected Health Information, and Australian Health Information). Rosterem will maintain appropriate safeguards for security, confidentiality and integrity of Customer Data. Within 30 days before termination or expiration of this Agreement, Rosterem will make Customer Data available for export or download as provided in the Documentation upon request. Otherwise, Rosterem may delete Customer Data after termination or expiration unless legally prohibited.
2.4 Free Trial. For free trials, Rosterem will make Services available until: (a) the free trial period ends, (b) Purchased Service subscriptions begin, or (c) Rosterem terminates the trial at its discretion. Additional trial terms may appear on the registration page. Any Customer Data entered during the trial will be permanently lost unless Customer purchases a subscription to the same Services or exports such data before the trial ends.
DURING FREE TRIALS, SERVICES ARE PROVIDED "AS-IS" AND "AS AVAILABLE" WITHOUT WARRANTY AND ROSTEREM SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ROSTEREM'S LIABILITY SHALL NOT EXCEED US$100. ROSTEREM DOES NOT REPRESENT OR WARRANT THAT: (A) TRIAL SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, (B) TRIAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR (C) TRIAL USAGE DATA WILL BE ACCURATE.
CUSTOMER REMAINS FULLY LIABLE FOR DAMAGES ARISING FROM ITS USE OF TRIAL SERVICES, BREACHES OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS.
2.5 Free Services and Beta Services. Free Services and Beta Services are subject to this Agreement. In case of conflict, this section prevails. Free Services and Beta Services are provided without charge up to certain usage limits. Customer agrees that Rosterem may modify or terminate access to Free Services and Beta Services at any time without prior notice. Customer is responsible for exporting its Customer Data before termination of access, though Rosterem will provide reasonable opportunity to retrieve Customer Data if Rosterem terminates the account.
FREE SERVICES AND BETA SERVICES ARE PROVIDED "AS-IS" AND "AS AVAILABLE" WITHOUT WARRANTY AND ROSTEREM SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ROSTEREM'S LIABILITY SHALL NOT EXCEED US$100. ROSTEREM DOES NOT REPRESENT OR WARRANT THAT: (A) FREE SERVICES OR BETA SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, (B) FREE SERVICES OR BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR (C) USAGE DATA WILL BE ACCURATE.
CUSTOMER REMAINS FULLY LIABLE FOR DAMAGES ARISING FROM ITS USE OF FREE SERVICES OR BETA SERVICES, BREACHES OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS.
3. Use of services
3.1 Communications. By providing your telephone number, you consent to receive communications from Rosterem (including affiliates, agents, service providers, and marketing partners) for any purpose, including marketing, service information, and information obtained through your use of Rosterem websites. These communications may include automated telephone dialing systems, pre-recorded/artificial voice, SMS, MMS, text, fax, and email regardless of Do Not Call list registration. Rosterem is not responsible for charges related to these communications. Standard rates may apply. You understand providing your phone number is not required to receive any good or service.
3.2 Electronic Transactions. You agree to transact electronically with Rosterem. Your electronic signature is legally equivalent to a manual signature. Using a keypad, mouse or other device to select an item, button, icon or similar action constitutes your signature as if signed in writing. No certification authority or third-party verification is necessary to validate your electronic signature.
3.3 Subscriptions. Subject to this Agreement and unless otherwise specified in an Order: (a) Customer subscribes to Purchased Services for the Subscription Term, (b) additional Purchased Services may be added during a Subscription Term at prevailing pricing, prorated for the remaining portion of the Subscription Term, and (c) added subscriptions will terminate on the same date as underlying subscriptions. Customer agrees purchases are not contingent on future functionality or features, or dependent on oral or written public comments regarding future functionality.
3.4 Adding Authorized Users. Customer may request to increase or decrease Authorized Users by submitting an Order. Unless otherwise stated, Rosterem will charge for changes in Authorized Users at prevailing subscription pricing.
3.5 Customer Responsibilities. Customer will (a) ensure Authorized Users comply with this Agreement, Orders, User Terms and be responsible for their acts or omissions, (b) be responsible for the accuracy, quality and legality of Customer Data, how it was acquired, Customer's use of it with the Services, and interoperation with Non-Rosterem Applications, (c) ensure use of Services by Customer and Authorized Users complies with Applicable Laws, Legal Requirements and the Acceptable Use Policy, (d) use reasonable efforts to prevent unauthorized access or use of Services and promptly notify Rosterem of any unauthorized access, (e) use Services only in accordance with this Agreement, Orders and Applicable Laws, and (f) comply with terms of service of Non-Rosterem Applications used with Services. Any use of Services that threatens security, integrity or availability of Rosterem's services may result in immediate suspension, though Rosterem will attempt to provide notice and opportunity to remedy the violation before suspension when commercially reasonable.
3.6 Restrictions. Customer will not (a) make Services available to anyone other than Customer or Authorized Users, or use Services for anyone other than Customer or its Affiliates unless expressly stated in an Order, (b) sell, resell, license, sublicense, distribute, rent, lease, transfer or provide access to Services to third parties, (c) use Services to store or transmit infringing, libelous, unlawful or tortious material, or material violating third-party privacy rights, (d) use Services to store or transmit Malicious Code, (e) interfere with integrity or performance of Services or third-party data therein, (f) attempt unauthorized access to Services or related systems or networks, (g) permit access to Services that circumvents usage limits, or use Services to access Rosterem intellectual property except as permitted under this Agreement or Orders, (h) modify, copy, or create derivative works of Services or any part thereof, (i) frame or mirror Services except for internal business purposes, (j) disassemble, reverse engineer, decompile, translate or derive source code, algorithms, file formats or non-public APIs to Services except as permitted by Applicable Law and with advance notice to Rosterem, or (k) access or use Services to: (i) build competitive products, (ii) build products using similar ideas, features, functions or graphics, (iii) copy ideas, features, functions or graphics, or (iv) determine whether Services are within scope of any patent. Rosterem's competitors are prohibited from accessing Services, and Services may not be accessed for monitoring availability, performance, functionality, or competitive purposes.
3.7 Removal of Non-Rosterem Applications. If Customer receives notice that a Non-Rosterem Application must be removed, modified or disabled to avoid violating applicable law or third-party rights, Customer must promptly comply. If requested, Customer shall confirm such deletion in writing, and Rosterem may provide this confirmation to third-party claimants or authorities. If Customer fails to take required action or if violations are likely to recur, Rosterem may disable or suspend Customer's access to the Service and/or Non-Rosterem Application. Rosterem will have no liability for such actions.
13. General provisions
13.1 Entire Agreement and Order of Precedence. This Agreement, including incorporated terms, is the entire agreement between Rosterem and Customer regarding Services use and supersedes all prior agreements and representations. Customer purchase order terms or other order documentation (excluding Orders) are void. In case of conflict, the order of precedence is: (1) DPA; (2) Product Specific Terms; (3) applicable Order; and (4) this Agreement (excluding Product Specific Terms).
13.2 Interpretation. "Including" means "including without limitation." Section titles are for convenience only and don't affect interpretation.
13.3 Relationship of the Parties. The parties are independent contractors. This Agreement creates no partnership, franchise, joint venture, agency, fiduciary or employment relationship. Each party is responsible for its employees' compensation and employment-related taxes.
13.4 Waiver. No failure or delay in exercising rights constitutes a waiver.
13.5 Severability. If any provision is found unenforceable or invalid, it will be limited or eliminated to the minimum extent necessary while preserving the Agreement's enforceability.
13.6 Assignment. Customer may not assign this Agreement without Rosterem's prior written consent (not unreasonably withheld), except Customer may assign the entire Agreement without consent in connection with a merger, acquisition, reorganization, or sale of substantially all assets. However, if Customer is acquired by, sells substantially all assets to, or undergoes change of control favoring a direct Rosterem competitor, Rosterem may terminate this Agreement with written notice and refund prepaid fees for the remainder of all subscriptions. Rosterem may assign its rights or obligations without Customer's consent. This Agreement binds and benefits the parties and their permitted successors and assigns.
13.7 No adverse construction. Nothing in this Agreement shall be interpreted against a party solely because that party proposed the Agreement or relevant part.
13.8 Competitors. Rosterem's direct competitors may not access Services without prior written consent. Services may not be accessed for monitoring availability, performance, functionality, or competitive purposes.
13.9 Rosterem Contracting Entity, Governing Law and Venue.
For customers in Australia and New Zealand:
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Rosterem Pty Ltd.
4. Non-Rosterem products and services
4.1 Non-Rosterem Products and Services. Any acquisition or use of Third Party Products or Services, including exchange of Customer Data between Customer and Non-Rosterem providers, is solely between Customer and the applicable Non-Rosterem provider. Customer is solely responsible for any loss, damage or liability arising from its decision to permit a Non-Rosterem provider to access or use Customer Data. Rosterem does not warrant or support Non-Rosterem Applications or other Third Party Products or Services unless expressly stated in an Order. Rosterem is not responsible for disclosure, modification or deletion of Customer Data resulting from access by a Non-Rosterem Application or provider.
4.2 Integration with Non-Rosterem Applications. Services may contain features designed to interoperate with Non-Rosterem Applications. Rosterem cannot guarantee continued availability of such features and may cease providing them without entitling Customer to refund, credit, or compensation if, for example, a provider ceases to make the Non-Rosterem Application available for interoperation in a manner acceptable to Rosterem. Rosterem shall have no obligations or liability related to any integration with Non-Rosterem Applications.
5. Fees and payment
5.1 Fees. Customer will pay all fees specified in Orders. Except as otherwise specified, (a) payment obligations are non-cancellable and fees paid are non-refundable, and (b) quantities purchased may only be decreased according to the Pricing Policy. Rosterem may change fees in accordance with the Pricing Policy.
5.2 Invoicing and Payment. Subject to Order terms, Customer will provide valid payment facility information or acceptable documentation for invoicing and payment. If Customer provides credit card information, Customer authorizes Rosterem to charge that card for all Purchased Services for the Subscription Term and any renewals. Monthly subscriptions are charged monthly in arrears; annual subscriptions are charged annually in advance. For non-credit card payments, Rosterem will invoice according to the Order with payment due within 30 days of invoice date unless otherwise stated. Customer must provide complete and accurate billing and contact information and notify Rosterem of any changes.
5.3 Overdue Charges. If payment is not received by the due date, (a) Customer must pay interest on unpaid amounts at 1.5% per month, accrued daily and compounded monthly, and/or (b) Customer must comply with any revised payment terms notified by Rosterem for renewals or future Orders.
5.4 Suspension of Service and Acceleration. If charges are overdue, Rosterem may accelerate unpaid fee obligations under other agreements so they become immediately due and payable, and suspend Services until full payment, provided that Rosterem will give at least 10 days' prior notice before suspension (except for declined credit card or direct debit payments).
5.5 Payment Disputes. Rosterem may waive rights under sections 5.3 or 5.4 if Customer is disputing charges reasonably and in good faith and cooperating to resolve the dispute.
5.6 Taxes. Rosterem's fees exclude Taxes (value-added, sales, use, withholding taxes, etc.). Customer is responsible for paying all Taxes associated with purchases. If Rosterem must collect Taxes, Customer will pay such invoices unless Customer provides a valid tax exemption certificate.
6. Proprietary rights and licenses
6.1 Reservation of Rights. Subject to limited rights granted in this Agreement, Rosterem, its Affiliates and licensors reserve all rights, title and interest in the Services and related intellectual property. No rights are granted except as expressly provided.
6.2 License by Customer to Rosterem. (a) Customer grants Rosterem and Affiliates a worldwide, limited-term license to sub-license, host, copy, use, transmit, and display Customer Data and any Non-Rosterem Applications and program code created by or for Customer, as required for Rosterem to provide Services. If Customer uses a Non-Rosterem Application, Rosterem may allow the provider to access Customer Data and usage information. Subject to these licenses, Rosterem acquires no right, title or interest in Customer Data, Non-Rosterem Applications or program code. (b) Customer grants Rosterem and Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into services: (i) feedback provided by Customer or Authorized Users relating to Rosterem's services; and (ii) information about Customer's or Affiliate's use of Services, including Customer Data in aggregate or statistical form that doesn't identify Customer, Affiliates, employees, agents, contractors, clients or Authorized Users. These rights continue after termination of this Agreement.
7. Confidentiality
7.1 Definition of Confidential Information. Confidential Information means information disclosed by a party (Disclosing Party) to the other party (Receiving Party), orally or in writing, designated as confidential or that reasonably should be understood as confidential given the nature of the information and disclosure circumstances. Customer's Confidential Information includes Customer Data. Rosterem's Confidential Information includes the Services and the terms of this Agreement and Orders (including pricing). Both parties' Confidential Information includes business plans, technology, technical information, product plans, designs, and business processes. Confidential Information excludes information that: (a) becomes generally known to the public without breach of obligation to the Disclosing Party, (b) was known to the Receiving Party prior to disclosure without breach of obligation to the Disclosing Party, (c) is received from a third party without breach of obligation to the Disclosing Party, or (d) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. Each party retains ownership rights to its Confidential Information. The Receiving Party will use the same care to protect Confidential Information as it uses for its own similar information (but no less than reasonable care) to (a) not use, disclose, copy or reproduce Confidential Information except as permitted under this Agreement and (b) limit access to Confidential Information to those with a legitimate need to know who are bound by similar confidentiality obligations. Neither party will disclose Agreement terms to third parties other than Affiliates, legal counsel and accountants without prior written consent, though the disclosing party remains responsible for compliance. Rosterem may disclose Agreement terms to subcontractors or Non-Rosterem Application providers as necessary under similar confidentiality terms.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information if legally compelled, but only to the minimum extent required, provided the Receiving Party gives prior notice (if legally permitted) and reasonable assistance at the Disclosing Party's cost if the Disclosing Party wishes to contest the disclosure. If the Receiving Party must disclose Confidential Information in a civil proceeding where the Disclosing Party is a party and not contesting disclosure, the Disclosing Party will reimburse reasonable costs of compiling and providing secure access to that information.
7.4 Promotion and marketing. Rosterem may identify Customer as a customer in promotional advertising, marketing or other commercial activities.
8. Warranties and disclaimers
8.1 Mutual Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power and authority to do so.
8.2 Customer Warranties. Customer warrants it has not relied on any representation by Rosterem not expressly stated in this Agreement or Order. Customer further represents and warrants it has all necessary permissions, consents, or authorizations required to legally use the Services for processing Personal Data.
8.3 Rosterem Warranties. Rosterem represents, warrants and covenants that: (a) Rosterem has and will have all rights, titles, licenses, permissions and approvals necessary to perform its obligations and grant Customer rights under this Agreement; and (b) Rosterem has taken reasonable steps to test the Services for viruses, worms, time bombs, time locks, drop dead devices, traps or trap door devices.
For any warranty breach, Customer's exclusive remedies are those described in sections 11.3 (Termination for Cause) and 11.4 (Refund or Payment on Termination).
8.4 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ROSTEREM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ROSTEREM DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DATA TRANSMISSION OVER THE INTERNET WILL ALWAYS BE SECURE, OR THAT ROSTEREM WILL PRESERVE CUSTOMER DATA WITHOUT LOSS OR DAMAGE. WHERE WARRANTIES ARE IMPLIED BY CONSUMER LAWS AND CANNOT BE EXCLUDED, ROSTEREM'S LIABILITY IS LIMITED (AT ROSTEREM'S OPTION) TO RESUPPLYING THE SERVICES OR PAYING THE REASONABLE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
9. Mutual indemnification
9.1 Indemnification by Rosterem. Rosterem will defend Customer against third-party claims alleging that Purchased Services when used as authorized infringe or misappropriate third-party intellectual property rights ("Claim Against Customer"), and will indemnify Customer from resulting damages, attorney fees and costs awarded or settlement amounts approved by Rosterem, provided Customer (a) promptly notifies Rosterem in writing, (b) gives Rosterem sole control of defense and settlement (except Rosterem may not settle unless it unconditionally releases Customer from liability), and (c) provides reasonable assistance at Rosterem's expense. If Rosterem receives information about an infringement claim, Rosterem may at its discretion and at no cost to Customer (i) modify the Services to be non-infringing without breaching warranties, (ii) obtain a license for Customer's continued use, or (iii) terminate subscriptions for that Service with 30 days' notice and refund prepaid fees for the remainder of the terminated subscriptions. Rosterem's obligations do not apply if: (1) the claim arises from combining Services with non-Rosterem software, hardware, data, or processes where Services would not infringe alone; (2) the claim relates to Services under a no-charge Order; (3) the claim arises from a Non-Rosterem Application or Customer's breach; or (4) Customer settles or makes admissions without Rosterem's prior written consent.
9.2 Indemnification by Customer. Customer will defend Rosterem and Affiliates against third-party claims alleging (a) Customer Data or Customer's use of Customer Data with Services, (b) a Non-Rosterem Application provided by Customer, or (c) the combination of a Customer-provided Non-Rosterem Application with Services, infringes or misappropriates third-party intellectual property rights; or arising from Customer's unlawful use of Services or violation of this Agreement, Documentation, or Orders (each a "Claim Against Rosterem"). Customer will indemnify Rosterem from resulting damages, attorney fees and costs awarded or settlement amounts approved by Customer, provided Rosterem (i) promptly notifies Customer in writing, (ii) gives Customer sole control of defense and settlement (except Customer may not settle unless it unconditionally releases Rosterem from liability), and (iii) provides reasonable assistance at Customer's expense. Customer's obligations don't apply to claims arising from Rosterem's breach of this Agreement, Documentation or applicable Orders.
9.3 Exclusive Remedy. This section 9 comprises the indemnifying party's sole liability and the indemnified party's exclusive remedy for third-party claims described herein.
10. Limitation of liability
10.1 Limitation of Liability. ROSTEREM'S AND ITS AFFILIATES' AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND AFFILIATES UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST CAUSE OF ACTION. FOR FREE SERVICES, ROSTEREM'S LIABILITY IS LIMITED TO US$100 IN AGGREGATE. THIS LIMITATION APPLIES WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.2 Exclusion of Consequential and Related Damages. NEITHER ROSTEREM NOR ITS AFFILIATES WILL BE LIABLE FOR LOST PROFITS, REVENUES OR GOODWILL OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES RELATED TO THIS AGREEMENT OR USER TERMS, WHETHER IN CONTRACT OR TORT AND REGARDLESS OF THEORY OF LIABILITY, EVEN IF ADVISED OF SUCH DAMAGES' POSSIBILITY IN ADVANCE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3 Multiple Claims & Time Limits. MULTIPLE CLAIMS WILL NOT EXPAND THE LIMITATIONS IN THIS SECTION 10. ANY CAUSE OF ACTION RELATED TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES OR IT WILL BE PERMANENTLY BARRED.
10.4 Jurisdiction Limitations. SOME JURISDICTIONS MAY NOT ALLOW EXCLUSION/LIMITATION OF CERTAIN DAMAGES, SO THESE LIMITATIONS MAY NOT FULLY APPLY TO YOU. IN SUCH CASES, ROSTEREM'S AND ITS AFFILIATES' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS SECTION 10 WILL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
11. Term and termination
11.1 Term of Agreement. This Agreement starts when Customer first accepts it and continues until all subscriptions have expired or been terminated.
11.2 Term of Purchased Subscriptions. Each subscription term is specified in the applicable Order. Subscriptions automatically renew for periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives written notice at least 30 days before the end of the relevant Subscription Term. Renewal pricing will be at Rosterem's then-current rates per the Pricing Policy.
11.3 Termination for Cause. Either party may terminate this Agreement (a) with 30 days written notice of a material breach if the breach remains uncured after that period, or (b) if the other party becomes subject to bankruptcy, insolvency, receivership, liquidation or assignment for creditors' benefit.
11.4 Refund or Payment upon Termination. If Customer terminates this Agreement under section 11.3 (Termination for Cause) or section 12.3 (Purchased Services), Rosterem will refund prepaid fees covering the remainder of all Orders after the termination effective date. For termination for any other reason, Customer will not receive refunds and must pay any unpaid fees covering the remainder of all Orders to the extent permitted by law. Termination will not relieve Customer of obligation to pay fees for the period prior to termination.
11.5 Effect of Termination. Upon expiration or termination, Customer must cease using all Services and delete (or at Rosterem's request return) all Confidential Information in Customer's possession or control, certifying deletion upon Rosterem's request. Rosterem will, upon request made according to section 2.3, return Customer Data stored on the Services in a format Rosterem deems appropriate.
11.6 Surviving Provisions. Sections 2.5 (Free Services), 3.7 (Removal of Non-Rosterem Applications), 5 (Fees and Payment), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.4 (Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.6 (Surviving Provisions) and 12 (General Provisions) survive termination or expiration, and section 2.3 (Protection of Customer Data) survives as long as Rosterem retains Customer Data.
12. Changes to terms
12.1 Changes to Terms. Rosterem may modify this Agreement (including policies) at any time. For material changes, Rosterem will provide reasonable notice before the change takes effect, either by direct notification or messaging through the Services. The current version of this Agreement is always available on Rosterem's website. The revised Agreement becomes effective on the date specified in Rosterem's notice, and other changes become effective upon posting to Rosterem's website.
12.2 Free Services. Customer must accept modifications to continue using Free Services. If Customer objects, its exclusive remedy is to stop using the Free Services.
12.3 Purchased Services. If Customer does not accept modifications, Customer must stop using Services and terminate this Agreement by notice to Rosterem. Continued access and use of Services after the effective date constitutes acceptance of the modified terms.