Last updated: November 30, 2021
These Terms of Service constitute a legally binding agreement (“Agreement”) between you and RollKall Technologies, LLC. (“Company” or “RollKall”) governing your use of the RollKall Platform (defined below), Company’s website (RollKall.com or the “Site”) or mobile applications. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “RollKall Platform.”
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 18). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 18) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE ROLLKALL PLATFORM.
A few highlights of this Agreement include:
The RollKall Platform is a web-based communications platform which enables the connection between Clients and Officers. “Clients” are individuals and/or businesses seeking to obtain services (“Jobs”) from Officers and are therefore clients of Officers, and “Officers” are individuals and/or businesses seeking to perform Jobs for Clients. Clients and Officers together are hereinafter referred to as “Users.” If you agree on the terms of a Job with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
OFFICERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM JOBS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM JOBS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR AN OFFICER’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE JOBS IN ANY MANNER.
OFFICERS ARE INDEPENDENT CONTRACTORS FOR ROLLKALL AND ARE NOT COVERED UNDER A WORKERS COMPENSATION POLICY. AN ADDITIONAL CHARGE WILL BE ADDED TO THE OFFICERS’ HOURLY RATE IF A CLIENT DESIRES TO HAVE THIS COVERAGE IN PLACE FOR OFFICERS PERFORMING JOBS FOR THEM AND PAID THROUGH THE ROLLKALL PLATFORM. CLIENTS MAY REQUEST SUCH WORKERS COMPENSATION COVERAGE BY SUBMITTING A WRITTEN REQUEST TO ROLLKALL.
The RollKall Platform only enables connections between Users for the fulfillment of Jobs. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Jobs, Officers, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Jobs requested and services provided by Users identified through the RollKall Platform whether in public, private, or offline interactions.
In Company’s sole discretion, Users may be subject to a vetting process before they can register for and during their use of the RollKall Platform, including but not limited to a verification of identity, Officer standing with their respective departments, and a comprehensive criminal background check, at the country, state and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks (i) as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act and (ii) additionally, as often as Company deems advisable at Company’s sole discretion.
Although Company may perform background checks of Users and subject Users to other forms of vetting, as outlined above, Company is not required to do so and cannot confirm that each User is who the User claims to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the RollKall Platform. The vetting processes that Company applies to Users at any given time can be found at https://support.rollkall.com/hc/en-us/articles/360004837472-Officer-Verification-Process. Users are advised that Company may change or eliminate those vetting processes from time to time in Company’s sole discretion.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSEES IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSEES FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSEES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH OR RELATED TO YOUR USE OF THE ROLLKALL PLATFORM.
As used in this Agreement, an “Affiliate” of Company means any member, manager, parent, subsidiary, affiliate, officer, director, employee, agent, principal, attorney, financial advisor or contractor of Company, any entity in which Company owns an equity interest or any entity that owns an equity in interest in Company.
As used in this Agreement, an “Affiliate” of Company means any member, manager, parent, subsidiary, affiliate, officer, director, employee, agent, principal, attorney, financial advisor or contractor of Company, any entity in which Company owns an equity interest or any entity that owns an equity in interest in Company.
User Representations and Warranties
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Job with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the RollKall Platform, and any other contractual terms accepted by both the Officer and their Client to the extent such terms do not conflict with the terms in this Agreement including this Section 3 and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Officer.
The Client will pay the Officer directly for completed services through the “RK Pay” platform, or as otherwise agreed to between the Officer and Client, at the rates agreed to by the parties in the Service Agreement. RollKall partners with the PSP for purposes of collecting all payments from Clients who elect to utilize RK Pay, transferring such payments from Clients to Officers, and holding funds in connection with RollKall Balances (defined below) through RK Pay. All payments services in connection with the collection of funds on the RollKall Platform are performed by RollKall’s PSP. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Job. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties. For purposes of this Agreement, the term “RollKall Balances” means the funds deposited in a Client’s RK Pay account, that have not yet been: (i) have not yet been disbursed to Officers in connection with completed Jobs, or (ii) have not yet been withdrawn by Client in accordance with Section 4 below.
Users contract for Jobs directly with other Users using the RollKall Platform. Company will not be a party to any contracts for Jobs or other services. Clients are solely responsible for payments owed to Officers and other Users for services rendered pursuant to Service Agreements. Clients must make such payments to Officers or other Users using RK Pay via RollKall’s PSP, or as otherwise agreed between Client and Officer.
Payment for services through the RollKall Platform is made by the Client to the User and not by Company or its PSP. Except as otherwise specifically provided in this Agreement, under no circumstances shall Company be obligated to pay an Officer or any other User for services rendered under a Services Agreement.
Users of the RollKall Platform who utilize RK Pay will be required to provide their credit card and/or bank account details to Company and the PSP. Clients will be responsible for paying the invoice for each Job (the “Invoice”), which will include (i) the pricing terms of the Job agreed with and provided by an Officer (“Job Payment”), (ii) any out of pocket expenses agreed with and submitted by an Officer in connection with the Job, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses for the RollKall Platform, variable based on the Job Payment amount based on fee schedules maintained by Company that Company will provide to Users at their request, and (v) cancellation fees, if applicable. Officers will be responsible for paying (i) registration fees (applicable to Officer registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments. Each Invoice will initially be developed by an Officer to reflect charges for his services and then edited by Company to add line items for fees payable to other Users or Company.
When Clients utilize RK Pay, RollKall adds a service charge on top of the officer or department hourly rate, which includes the following benefits:
Payment processing services for Users on the RollKall Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”) which can be found at https://stripe.com/us/legal. By agreeing to the terms of this Agreement or continuing to operate as a User on the RollKall Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of RollKall enabling payment processing services through Stripe, you agree to provide RollKall accurate and complete information about you and your business, and you authorize RollKall to share with Stripe that information, as well as transaction information related to your use of the payment processing services provided by Stripe.
RollKall serves as the Officer’s limited authorized payment collection agent solely for the purpose of accepting payments (via its PSP) from Client, and remitting those payments to the Officer. Client’s payment obligation to Officer will be satisfied upon receipt of payment by RollKall (via its PSP), and RollKall (via its PSP) is responsible for remitting the funds to the Officer in the manner described in this Agreement. In the event that RollKall (via its PSP) does not remit any such amounts to Officer, the Officer will have recourse only against RollKall and not the Client directly.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a temporary charge is placed on account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 US to $5000.00 US depending on the estimated value of the Job and reimbursements.
When Client receives confirmation through the RollKall Platform or via email that a Job has been completed, Client automatically authorizes Company to provide Client's payment details to the PSP for processing of Job Payment, out of pocket expenses owed to Officer, and the service charge owed to Company for the use of the RollKall Platform. You may be charged a cancellation fee through the PSP if you book a Job, but cancel it before it is completed, as set forth in the Job pricing terms or if you agree to perform a Job but fail to complete it, as may be set forth in the Job pricing terms.
To withdraw your RollKall Balance, you must have an account with RollKall’s PSP. All funds eligible for withdrawal will be held on your behalf at an account with RollKall’s PSP. All payment services, including withdrawal services will be provided by RollKall’s PSP.
Once a Job is marked complete, Clients utilizing “RKPay” will receive an invoice for the Job. Following receipt of such invoice, the Client will have 3 days to dispute such invoice (the “Clearance Period”). If the invoice is not disputed within the Clearance Period, the invoiced amount will be debited from the Client’s RollKall Balance. If the invoice is disputed within the Clearance Period, any undisputed amounts will be debited from the Client’s RollKall Balance. Any disputed amounts will not be debited from the Client’s RollKall Balance until the PSP receives written instructions to do so from the Client. The Company encourages Clients and Officers to try and settle any invoice disputes amongst themselves.
RollKall Balances are only made available for withdrawal to the extent such amounts are not subject to the Clearance Period.
Company reserves the right, in its sole discretion (but not the obligation), upon request from Client or Officer or upon notice of any potential fraud, unauthorized charges or other misuse of the RollKall Platform, to arrange for the PSP to (i) place on hold any Job Payment and out of pocket expenses, or (ii) refund or provide credits.
Users of the RollKall Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Job services provided under this Agreement (other than taxes on Company’s income).
The RollKall Platform is only a venue for connecting Users. Because Company is not involved in the actual contract between Users or in the completion of the Job, in the event that you have a dispute with one or more Users, you release Company and its Affiliates from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS ROLLKALL PLATFORM.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
The RollKall Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, Job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the RollKall Platform, you may not share your personal contact information with other Users.
Without limitation, while using the RollKall Platform, you may not:
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
Company may terminate, limit or suspend this Agreement as it relates to you and your right to use the RollKall Platform in the event that Company, in its sole discretion, determines that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If Company terminates, limits, or suspends this Agreement as it relates to you and your right to use the RollKall Platform, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress in accordance with Section 20.
Notwithstanding anything to the contrary in this Section 7, Company has the right to restrict anyone from completing registration as an Officer if Company believes such person may threaten the safety and integrity of the RollKall Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time as it relates to you by (i) delivery to Company of written or email notice of termination and (ii) by ceasing all use of the RollKall Platform.
All sections of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
You must register with Company and create an account to use the RollKall Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the RollKall Platform. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Company immediately.
By providing to Company your mobile phone number and using the RollKall Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the RollKall Platform, (b) facilitate the carrying out of Jobs through the RollKall Platform, or (c) provide you with information and reminders regarding your registration, orientation, upcoming Jobs, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Jobs and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Company’s mobile application, texting “STOP” in response to any texts, or by emailing opt-out-texts@RollKall.com and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing opt-out-texts@RollKall.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the RollKall Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The RollKall Platform hosts User Generated Content relating to reviews and ratings of specific Officers (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake his, her or its own research to be satisfied that a specific Officer is the right person for a Job. You agree that Company is not liable or otherwise responsible for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the RollKall Platform.
Each Officer who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the RollKall Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
Each Officer hereby waives all rights and releases Company and its Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Officer’s identity, likeness or voice in connection with the RollKall Platform.
Each Officer acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Officer, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Officer’s recordings or participation in any recordings, including any loss of such recording data.
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM JOBS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM JOBS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor an Officer’s work or Jobs performed in any manner. Company does not set an Officer’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Job. Company does not provide any supervision to Users.
The RollKall Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use or delivery of Users’ Job services.
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the RollKall Platform is owned by Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the RollKall Platform without Company's express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the RollKall Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the RollKall Platform infringe upon your copyright or other intellectual property right, please send the following information to Company's Copyright Agent at: RollKall, LLC. 600 E. Las Colinas Blvd. Suite 550, Irving, TX 75039 or copyright@RollKall.com:
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who need to know the Confidential Information in order to fulfill their job functions and who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
USE OF THE ROLLKALL PLATFORM IS ENTIRELY AT YOUR OWN RISK.
THE ROLLKALL PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE ROLLKALL PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE ROLLKALL PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE ROLLKALL PLATFORM, OR (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE ROLLKALL PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSEES WARRANT THAT ACCESS TO THE ROLLKALL PLATFORM WILL BE UNINTERRUPTED OR THAT THE ROLLKALL PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ROLLKALL PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY JOB, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE ROLLKALL PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSEES IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSEES WARRANT THAT THE ROLLKALL PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSEES CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE ROLLKALL SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE JOB AND SELECTING AN OFFICER, AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR OFFICER. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY OFFICER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE ROLLKALL PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF COMPANY’S LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, OR ITS LICENSEES LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO OR IN CONNECTION WITH YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE ROLLKALL PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSEES AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES OR LICENSEES, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE ROLLKALL PLATFORM OR THE JOB SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE ROLLKALL PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY, ITS AFFILIATES OR LICENSEES IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Company and its Affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and other costs incurred, in connection with (i) your use or inability to use the RollKall Platform or Job services, (ii) your breach or violation of this Agreement, (iii) your violation of any law the rights of any User or third party, or (iv) any content submitted by you or using your account to the RollKall Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
(a) Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company agree to first attempt to negotiate to resolve any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice by Company to a User, or a User to Company. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. Company’s address for such notices is RollKall, LLC., 600 E. Las Colinas Blvd. Suite 900, Irving, TX 75039. Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN. The mutual agreement to arbitrate contained herein constitutes consideration for this Arbitration Agreement. You and Company acknowledge the sufficiency of such consideration.
This agreement to arbitrate, contained in Section 18, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the RollKall Platform, services, Jobs, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and Company agree that any arbitration will be limited to a Claim between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company which are addressed separately in Section 18(d) below. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), and as follows: (a) all claims shall be resolved by a single AAA arbitrator; (b) the arbitration, including but not limited to: all documents exchanged in the arbitration proceedings by the parties, written discovery, deposition transcripts, hearing transcripts and orders, motions and briefs shall be confidential and shall not be disclosed to anyone other than the parties and the arbitrator for use the arbitration proceeding between the parties; (c) the arbitrator cannot hear any action as a class, collective or representative action or multi-claimant/party action (the AAA’s Supplementary Rules for Class Arbitrations and/or Collective Action Arbitrations shall not apply because you and Company agree not to arbitrate class or collective action claims) but instead agree to arbitrate the single claimant dispute; (d) the arbitrator will allow appropriate discovery, including, but not limited to, production of documents, information requests, depositions and subpoenas; (e) the Federal Rules of Evidence and the Federal Rules of Civil Procedure (except as modified in this Section 18) shall apply; (f) all statutes of limitations that would otherwise apply to an action at law shall apply to all arbitrations between you and Company; (g) the award shall be in writing, signed and dated by the arbitrator, and shall contain findings of fact and the basis for the reasoned award; and (h) confirmation and judgment on the award may be entered in any court having jurisdiction; (i) Company and you agree that there shall be no appeal from any arbitration award hereunder. The AAA Rules may be amended from time to time and are available online at http://www.adr.org. You can also call the AAA at (800) 778-7879 if there are questions about the arbitration process. If the AAA Rules are inconsistent with the terms of this Agreement, the terms of this Agreement shall in all respects govern and control the arbitration.
Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s) and as set forth above. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Officers or Clients, but is bound by rulings in prior arbitrations involving the same Officer or Client to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees. If a Client or Officer, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 10,000, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); (ii) For Claims that (A) are based on an alleged employment relationship between Company and the Officer; (B) arise out of, or relate to, Company’s actual or threatened deactivation of an Officer’s User account; (C) arise out of, or relate to Company’s actual or threatened termination of an Officer’s Agreement with Company; or (D) arise out of, or relate to, monies earned or paid for Job services (as defined above, including the service charge or Trust and Support Fee), tips, bonuses or monies owed by Clients or Company to an Officer, other than disputes relating to referral bonuses, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Officer Claims”), Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Company pursuant to the fee provisions above). However, if you are the party initiating the Officer Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 18(e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator; (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claims(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.); (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Company agree otherwise, any arbitration hearings between Company and an Officer will take place in the county of your billing address, and any arbitration hearings between Company and a Client will take place in the county in which you received Job services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(e) Exceptions to Arbitration
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 18(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(g) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Company in writing within thirty (30) days of the date you first registered for the RollKall Platform or thirty (30) days from the date this Agreement was last updated. To opt out, you must send a written notification to Company at RollKall, LLC., 600 Las Colinas Blvd. E., Suite 900, Irving, TX 75039 Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Except as provided in Section 18 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of Texas, without regard to choice of law principles, principles of such state or other jurisdictions to the contrary, and without the aid of any canon, custom or rule of law requiring construction against the draftsman.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, provided, that, in no event shall you pay or be responsible for any taxes imposed on RollKall’s income. If such tax for which you have responsibility is imposed directly on RollKall, you shall either pay the tax on behalf of RollKall or promptly reimburse RollKall for payments it makes directly. You shall indemnify, defend, and hold harmless RollKall for any failure by you to timely remit any taxes for which you have responsibility.