PLEASE READ THESE PRODUCT AND SERVICES TERMS OF USE CAREFULLY (this “Agreement”). This Agreement has been prepared as a legally binding agreement between you (“you” or “your”) and Rooster, LLC and its subsidiaries and affiliates (collectively, “Rooster,” “us,” “our,” or “we”). Rooster and you may be identified as a “Party” or the “Parties.”
This Agreement applies conditions to your use of any Rooster-provided products or services that you access, license, use or buy (collectively, the “Services”). By accessing and using the Services, you agree to be bound by this Agreement.
DO NOT ACCESS OR USE ANY SERVICES IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT.
IMPORTANT NOTICE: Your use of the Services is subject to an arbitration provision in Section 10, requiring most claims to be resolved by binding arbitration.
1. Preliminary Provisions.
1.1 Revisions to the Agreement. We may revise and update this Agreement from time to time, and will post the updated Agreement to our website and any portal or interface that you access (our “Sites”). ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services after an update constitutes your agreement to the revised Agreement.
2. Ownership.
2.1 Services. Rooster, its affiliates or third-party licensors own and hold all rights, title and interest in and to the Services, including without limitation, all intellectual property contained therein, all materials related to the Services, and all intellectual property derived from the Services. You acknowledge that the Software is the property of Rooster and/ or its third-party providers and is protected under the United States of America copyright laws and international copyright treaties. You further acknowledge that the structure, organization, and code of the Software, for which source code is not provided, are valuable trade secrets of Rooster and/or its third-party providers and that the Software in source code form remains a valuable trade secret of Rooster and/or its third-party providers. You agree not to decompile, disassemble, modify, copy, reverse assemble, reverse engineer, reduce to human readable form or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; or create any derivative works based on the Software or Hardware. You agree not to export or re-export the Software to any country in violation of the export control laws of the United States of America or the export control laws of any other applicable country. No part of the Services may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without our prior express written consent. For the avoidance of doubt, you have no property right in any cellular number assigned to any SIM card within a device and each Party understands that such number may be changed from time to time. THE SERVICES ARE FOR YOUR USE ONLY. YOU AND END USERS MAY NOT RESELL THE SERVICES, IN ANY PART, TO ANY OTHER PERSON WHETHER A NATURAL PERSON, ENTITY OR OTHERWISE.
2.2 Software License Agreement. BY USING THE DEVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE FOLLOWING SOFTWARE LICENSE AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY.
On the condition that you comply with all your obligations under this Agreement, Rooster, LLC and its subsidiaries (“Rooster”) grant you a limited license to use the software embedded in this device (the “Software”) in binary executable form in the normal operation of the product. Title, ownership rights, and intellectual property rights in and to the Software remain in Rooster and/or its third-party providers. You acknowledge that the Software is the property of Rooster and/ or its third-party providers and is protected under the United States of America copyright laws and international copyright treaties. You further acknowledge that the structure, organization, and code of the Software, for which source code is not provided, are valuable trade secrets of Rooster and/or its third-party providers and that the Software in source code form remains a valuable trade secret of Rooster and/or its third-party providers. You agree not to decompile, disassemble, modify, copy, reverse assemble, reverse engineer, reduce to human readable form or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; or create any derivative works based on the Software or Hardware. You agree not to export or re-export the Software to any country in violation of the export control laws of the United States of America or the export control laws of any other applicable country.
2.3 Trademarks. The Rooster name, the Rooster logo, and ASSET IQ are registered trademarks, and all Rooster product names are trademarks or service marks of Rooster LLC or its affiliates in the USA and other countries (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that you shall have the limited right to use the Marks solely as they appear in the Services. You shall not use the Marks in any advertising or promotional material nor disclose Rooster as a data source to any third party, except for such disclosures required by federal, state, or local government regulations, or as otherwise may be prior authorized in writing by Rooster. You shall not remove, alter, or obscure any Marks or proprietary notices contained in the Services or other materials provided by Rooster.
3. Fees.
3.1 Subscription. Your subscription to the Services will be on a monthly basis and will automatically renew until terminated. You must provide us with one or more Payment Methods. "Payment Method" means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party.
3.2 Billing Cycle. The subscription fee for the Services and any other charges you may incur in connection with your use of the Service (such as Hardware purchases, taxes and possible transaction fees), will be charged to your Payment Method on the specific billing date indicated on your "Billing" page. In some cases your payment date may change, for example if your Payment Method has not successfully settled or if your paid monthly membership began on a day not contained in a given month. You may visit your Account page to see your next payment date. We may authorize your Payment Method in anticipation of Service-related charges through various methods, including authorizing it up to approximately one month of Service fees as soon as you create an Account.
3.3 Payment Methods. You authorize us to charge any Payment Method associated to your Account in case your primary Payment Method is declined or no longer available to us. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your Account, we may suspend your access to the Services until we have successfully charged a valid Payment Method. You can update your Payment Methods by going to the "Billing" page. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s).
3.4 Cancellation. You can cancel the Services at any time, and you will continue to have access to the Services through the end of your billing period. To cancel, go to the "Account" page on our Site and follow the instructions for cancellation. If you cancel your subscription, your Account will automatically close at the end of your current billing period. Fees are nonrefundable and there are no refunds or credits for partial periods due to cancellation.
3.5 Fee Changes. We reserve the right to change the fees charged for our Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided in this Agreement, any fee changes will take effect no earlier than the start of your next billing cycle following notice to you (including by email to the address associated with your Account, by notice on your Account page, or by a notice within the Services), provided that we will use commercially reasonable efforts to provide at least thirty (30) days’ advance notice.
3.6 Taxes. Fees are exclusive of sales, use, excise, ad valorem, personal property, and other taxes. When Rooster has the legal obligation to collect such taxes, the appropriate amount shall be added to the fees due and paid by you, unless you provide Rooster with a valid tax exemption certificate prior to issuance of the invoice. Such certificate must be in a form authorized by the appropriate taxing authority.
4. Restrictions on Your Use of the Services. You agree that when accessing and using the Services, you will not: (i) delete, modify, or attempt to change or alter any of the Services or their content; (ii) introduce into the Services any virus, rogue program, time bomb, drop dead device, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Services, or to otherwise harm other users, or any third parties, or perform any such actions; (iii) use the Services to commit fraud or conduct other unlawful activities, including using stolen payment information to make a purchase; (iv) access or attempt to access any other person’s account, information, or content without permission; (v) decompile, disassemble, modify, copy, reverse assemble, reverse engineer, reduce to human readable form or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based or create any derivative works based on the Software or Hardware; (vi) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information from the Services for any reason; (vii) use any content or information made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (viii) decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Services; (ix) connect to or access any Rooster computer system or network without authorization; or (x) use information from the Services to create or sell a similar service.
We may suspend or terminate, in whole or in part, your access to the Services if you violate the terms and conditions set forth in this Section.
5. Hardware. Rooster hereby agrees to sell, and you agree to purchase, any Hardware you have selected in your Account Shopping Cart. All Hardware will be shipped FOB to the delivery location you have selected. Title to the Hardware shall pass to you upon Rooster’s provision of such Hardware to a common carrier. If Rooster fails to deliver the Hardware by the delivery date, you may, as your sole and exclusive remedy, either: (i) request Rooster to resend the Hardware, or (ii) cancel all or part of the Rooster Hardware delivery.
5.1 Inspection. You have the right to inspect the Hardware and to reject any Hardware, which you can demonstrate is defective within thirty (30) business days of delivery. In the event the Hardware is defective, you will be provided a return shipping label and must ship the defective Hardware back within ten (10) business days. Rooster will then have twenty (20) business days in which to replace such defective Hardware at Rooster’s sole cost. Failure to correct such defect will allow you to cancel your purchase of the Hardware and Rooster agrees to immediately refund all sums previously paid to it by you.
5.2 Returns. You may elect to return your order within thirty (30) calendar days of purchase for a full refund. To receive the refund, Hardware must be received by Rooster c/o Constellation Service Company at 4119 SW Southgate Drive in Topeka, KS 66609 in its original, unopened package within thirty (30) calendar days of the completed order. Upon receipt of the Hardware in its original unopened packaging, Rooster will cancel your purchase of the Hardware and immediately refund the hardware purchase previously paid to it by you.
5.3 Limited Hardware Warranty.
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE (OR BY COUNTRY OR PROVINCE). ROOSTER DOES NOT EXCLUDE, LIMIT OR SUSPEND OTHER LEGAL RIGHTS YOU MAY HAVE UNDER THE LAWS OF YOUR STATE (OR COUNTRY OR PROVINCE). FOR A FULL UNDERSTANDING OF YOUR RIGHTS, YOU SHOULD CONSULT THE LAWS OF YOUR STATE, COUNTRY, OR PROVINCE.
Hardware products are warranted to be free from defects in materials or workmanship for one year from the date of purchase. Within this period, Rooster will, at its sole discretion, repair or replace any components that fail in normal use. Such repairs or replacement will be made at no charge to you for parts or labor, provided that you shall be responsible for any transportation cost. This Limited Warranty does not apply to: (i) cosmetic damage, such as scratches, nicks and dents; (ii) consumable parts, such as batteries, unless product damage has occurred due to a defect in materials or workmanship; (iii) damage caused by accident, abuse, misuse, water, flood, fire, or other acts of nature or external causes; (iv) damage caused by service performed by anyone who is not an authorized service provider of Rooster; (v) damage to a product that has been modified or altered without the written permission of Rooster, or (vi) damage to a product that has been connected to power cables that are not supplied by Rooster. In addition, Rooster reserves the right to refuse warranty claims against products or services that are obtained and/or used in contravention of the laws of any country. Rooster products are intended to be used only as an aid and must not be used for any purpose requiring precise measurement of direction, distance, location, or topography. Rooster makes no warranty as to the accuracy or completeness of the map data.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES CONTAINED IN THIS LIMITED WARRANTY ARE EXCLUSIVE AND IN LIEU OF, AND ROOSTER EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND REMEDIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, STATUTORY REMEDY OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE AND FROM COUNTRY TO COUNTRY. IF IMPLIED WARRANTIES CANNOT BE DISCLAIMED UNDER THE LAWS OF YOUR STATE OR COUNTRY, THEN SUCH WARRANTIES ARE LIMITED IN DURATION TO THE DURATION OF THIS LIMITED WARRANTY. SOME STATES (AND COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL ROOSTER BE LIABLE IN A CLAIM FOR BREACH OF WARRANTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER RESULTING FROM THE USE, MISUSE, OR INABILITY TO USE THIS PRODUCT OR FROM DEFECTS IN THE PRODUCT. SOME STATES (AND COUNTRIES AND PROVINCES) DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Repaired or replaced devices have a 90-day warranty. If the unit sent in is still under its original warranty, then the new warranty is 90 days or to the end of the original 1-year warranty, whichever is longer.
Before seeking warranty service, please access and review the online help resources available on https://rooster-asset-tracking-help-center.scrollhelp.site/roosterhelp/. If your device is still not functioning properly after making use of these resources, please call 1-844-476-6787.
If during the warranty period you submit a claim for warranty service in accordance with this Limited Warranty, then Rooster will, at its option: (i) repair the device using new parts or previously used parts that satisfy Rooster’s quality standards, (ii) replace the device with a new device or a refurbished device that meets Rooster’s quality standards, or (iii) exchange the device for a full refund of your purchase price. SUCH REMEDY SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
6. Service Level Agreement.
BY USING THE DEVICE, YOU AGREE TO BE BOUND BY THE SERVICE LEVEL AGREEMENT IN THIS SECTION 6. PLEASE READ IT CAREFULLY.
Rooster will use commercially reasonable efforts to provide the services associated with the device (the “Device Services”) in accordance with the service levels described below. The service levels set forth herein are targets only and do not constitute a warranty or guarantee of performance.
6.1 Software Platform Uptime.
Rooster will use commercially reasonable efforts to make the software platform available with a target uptime of 99.5% during each calendar month. For purposes of this section, “uptime” refers to the availability of the hosted software platform, excluding scheduled maintenance and any unavailability caused by factors outside of Rooster’s reasonable control. Rooster may perform scheduled maintenance for up to four (4) hours per calendar month. Where reasonably practical, Rooster will provide advance notice of scheduled maintenance. Scheduled maintenance shall not be considered downtime for purposes of calculating uptime.
6.2 Hardware Performance.
Rooster is committed to delivering reliable hardware performance. Rooster will use commercially reasonable efforts to enable the following device performance targets under normal operating conditions, including adequate power source, cellular and GPS coverage on devices that meet current hardware and firmware requirements, with proper configuration settings:
- Rooster Hub devices transmitting data to the platform within a 24-hour interval approximately ninety percent (90%) of the time.
- Rooster Tracker devices transmitting data to the platform within a 120-hour interval approximately eighty percent (80%) of the time.
Actual performance may vary based on environmental conditions, installation quality, network availability, device configuration, and other factors outside of Rooster’s control. These performance levels are targets only and do not constitute a warranty or guarantee. ROOSTER SHALL NOT BE RESPONSIBLE FOR ANY FAILURE TO MEET THE ABOVE SERVICE LEVELS TO THE EXTENT CAUSED BY THIRD-PARTY SERVICES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, WIRELESS CARRIERS, GPS OR GNSS SYSTEMS, NETWORK AVAILABILITY, INTERFERENCE, ENVIRONMENTAL CONDITIONS, ACTS OF GOD, WAR, FLOOD, OR OTHER EVENTS BEYOND ROOSTER’S REASONABLE CONTROL.
7. Disclaimer of Warranties. EXCEPT AS WE OTHERWISE EXPRESSLY PROVIDE, THE SERVICES ARE PROVIDED “AS IS.” WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (I) YOUR USE OR THE RESULTS OF YOUR USE OF THE SERVICES; (II) ANY ADVICE YOU GLEAN FROM THE SERVICES WHETHER PROVIDED BY US OR A THIRD PARTY; OR (III) ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. WE DO NOT PROMISE THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT.
NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS CONTAINED IN THESE TERMS OF USE SHALL BE DETERMINED BY A COURT TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO 90 DAYS FROM THE DATE OF PURCHASE OR ACCESS, AS APPLICABLE.
8. Limitation of Liability. We are not responsible for any damages to you or anyone filing suit on your behalf for any reason. NONE OF ROOSTER AND ITS SUPPLIERS, LICENSORS, PARENT, AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, AND SUCCESSORS-IN- INTEREST, WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SERVICES, OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SERVICES, AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF ROOSTER. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES WILL BE TO STOP USING THE SERVICES.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF ROOSTER, ITS SUPPLIERS, LICENSORS, AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES, OR SUCCESSORS-IN-INTEREST, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1,000.00 USD) OR THE AMOUNT THAT YOU HAVE SPENT ON SERVICES OVER THE PAST 12 MONTHS.
8.1 Wireless Service Carrier Liability Limitation.
YOU HAVE NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND YOU ARE NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US AND THE UNDERLYING WIRELESS CARRIER. YOU UNDERSTAND AND AGREE THAT THE UNDERLYING WIRELESS CARRIER HAS NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU. IN ANY EVENT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OF OTHERWISE, YOUR REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY YOU FOR THE UNDERLYING WIRELESS SERVICE CARRIER’S SERVICES DURING THE TWO MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
YOU UNDERSTAND THAT ROOSTER OR ITS SUPPLIERS AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
YOU UNDERSTAND THAT THE UNDERLYING CARRIER DOES NOT GUARANTEE ANY UNINTERRUPTED SERVICE OR UBIQUITOUS COVERAGE. YOU ACKNOWLEDGE THAT SERVICE IS SUBJECT TO RISKS INCLUDING BUT NOT LIMITED TO, LACK OF COVERAGE, DISRUPTION, BREAKDOWN, DATA LOSS, HARM TO DATA INTEGRITY, DELAYED TRANSMISSION, LATENCY AND OTHER PERFORMANCE LIMITATIONS (THE “SERVICE LIMITATIONS”). THE UNDERLYING CARRIER DOES NOT WARRANT THAT YOU CAN OR WILL BE LOCATED USING THE SERVICE. THE UNDERLYING CARRIER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR PERFORMANCE REGARDING ANY SERVICES OR GOODS, AND IN NO EVENT SHALL ROOSTER, ITS SUPPLIERS OR PRIMARY CARRIER PARTNERS BE LIABLE, WHETHER OR NOT DUE TO THEIR OWN NEGLIGENCE, FOR ANY: (I) ACT OR OMISSION OF A THIRD PARTY INCLUDING, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; (II) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS, OR DEFECTS IN THE SERVICE PROVIDED BY OR THROUGH THE UNDERLYING CARRIER; (III) DAMAGE OR INJURY CAUSED BY SUSPENSION OR TERMINATION BY THE UNDERLYING CARRIER; OR (IV) DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 911 OR ANY OTHER EMERGENCY SERVICE. TO THE FULL EXTENT ALLOWED BY LAW, YOU RELEASE, INDEMNIFY AND HOLD THE UNDERLYING CARRIER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS OF ANY PERSON OR ENTITY FOR DAMAGES OF ANY NATURE ARISING IN ANY WAY FROM OR RELATING TO, DIRECTLY OR INDIRECTLY, SERVICES PROVIDED BY THE UNDERLYING CARRIER OR ANY PERSON’S USE THEREOF, INCLUDING CLAIMS ARISING IN WHOLE OR IN PART FROM THE ALLEGED NEGLIGENCE OF THE UNDERLYING CARRIER.
9. Indemnification. YOU SHALL HOLD HARMLESS, INDEMNIFY, AND DEFEND ROOSTER, ITS SUBSIDIARIES, ITS AFFILIATES, ITS SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES (COLLECTIVELY, THE “ROOSTER PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES ARISING THEREFROM) ARISING OUT OF OR RELATING TO ANY ACTION OR PROCEEDING BROUGHT BY A THIRD PARTY AGAINST ANY ONE OR MORE OF THE ROOSTER PARTIES: (I) ALLEGING INJURY, DAMAGE, OR LOSS RESULTING FROM YOUR USE OF THE SERVICES; (II) ALLEGING THAT YOUR DATA INFRINGES A COPYRIGHT, PATENT, OR TRADEMARK OR MISAPPROPRIATES A TRADE SECRET OF A THIRD-PARTY; (III) RELATED TO ANY ACT OR OMISSION BY YOU WHICH IS A BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (IV) YOUR USE OF INFORMATION OBTAINED THROUGH THE SERVICES.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE SERVICES OR PRODUCTS EXCEPT WHERE CLAIMS RESULT FROM THE UNDERLYING CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT.
You will have the right to defend and compromise such claim at your expense for the benefit of the Rooster Parties; provided, however, you will not have the right to obligate the Rooster Parties in any respect in connection with any such settlement without the written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend, the Rooster Parties may do so to protect their interests, and you will reimburse all costs incurred by the Rooster Parties in connection with such defense.
10. Agreement to Arbitrate. All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement) or our provision of Services shall be resolved by final and binding arbitration to be held in the English language in Johnson County, Kansas pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part, of this Agreement is void or voidable. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either Party to this Agreement may obtain preliminary injunctive relief in a court of competent jurisdiction, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.
11. General Provisions.
11.1 Relationship of Parties. The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement.
11.2 Assignment. You shall not assign or transfer this Agreement or any rights or obligations under this Agreement without Rooster’s prior written consent. A change in control constitutes an assignment under this Agreement. Any unauthorized assignment or transfer shall be void and constitutes ground for immediate termination of this Agreement by Rooster. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
11.3 Severability. If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal, or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
11.4 No Waiver. Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under this Agreement shall constitute a subsequent or continuing waiver of such right or any other rights under this Agreement.
11.5 Injunction. You acknowledge that the Services are a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of Rooster’s intellectual property rights shall be deemed a material breach of the Agreement, for which Rooster may not have adequate remedy in money or damages, and Rooster shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
11.6 Force Majeure. Except for your obligation to pay the fees for Services provided, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components, equipment or hardware); provided that the affected Party notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
11.7 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Kansas, without giving effect to its principles of conflicts of law. Any litigation arising out of this Agreement shall be brought by either Party in a court of competent jurisdiction located in Johnson County, Kansas, and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each Party hereby expressly and irrevocably waives the right to a jury trial. The prevailing Party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to this Agreement.
11.8 Survival. The following sections shall survive the expiration or termination of this Agreement: 2 (Ownership); 3 (Fees); 4 (Restrictions on Your Use of the Services); 6 (Service Level Agreement); 7 (Disclaimer of Warranties); 8 (Limitation of Liability) 9 (Indemnification); 10 (Agreement to Arbitrate); and 11 (General Provisions).
11.9 Compliance with Applicable Data Privacy Laws. You agree to use the Services and use, disclose, access, process or transmit Data in accordance with applicable data privacy laws and regulations. You acknowledge and understand that the regulatory landscape surrounding the collection or generation of Data through use of the Services and new technologies is constantly changing, and you shall comply with any such changes in the law to the extent they apply to you. You also will defend, hold harmless and indemnify Rooster and its employees, agents, officers, directors, shareholders, members, contractors, parents, and subsidiary and affiliate entities, from and against any claims, losses, damages, liabilities, costs, expenses, penalties or obligations (including attorneys’ fees), which we may incur due to a breach or violation of applicable law caused by you, or your subcontractors or agents.
