Last updated: April 1, 2022
These Terms of Service constitute a legally binding agreement (“Agreement”) between you, a government agency, 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:
1) ROLLKALL PLATFORM CONNECTS OFFICERS AND CLIENTS
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 employed by you or one or more of your affiliates seeking to perform Jobs for Clients. Clients, Officers and you 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. YOU 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 YOU DESIRE TO HAVE THIS COVERAGE IN PLACE FOR OFFICERS PERFORMING JOBS FOR CLIENTS AND PAID THROUGH THE ROLLKALL PLATFORM. YOU 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 the event that you suspect or otherwise become aware that any unauthorized party may be using the RollKall Platform in a manner not authorized hereunder, you shall immediately notify RollKall thereof.
2) USER VETTING AND REPRESENTATION AND WARRANTIES
In Company’s sole discretion, you and Users associated with you 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 you, and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. You are solely responsible for obtaining User consent to Company’s conduct of 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.
NEITHER COMPANY NOR ANY OF 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 YOUR USE OF THE ROLLKALL PLATFORM.
As used in this Agreement, an “Affiliate” of Company means any member, manager, officer, employee, agent, 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.
Your Representations and Warranties
3) CONTRACT BETWEEN CLIENTS AND OFFICERS
You acknowledge and agree that “Service Agreement” is formed when a Client and an Officer agree on the terms of a Job. The terms of the Service Agreement include 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 or create any obligation on the part of the Company to the Client or you.
You may elect for the Clients to pay the Officer directly for completed services through the “RKPay” platform developed by Company to facilitate payments between Users, 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 RKPay, transferring such payments from Clients to Officers, and holding Client balances through RKPay. You agree to comply with this Agreement throughout the term of this Agreement. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally for at least thirty (30) days before initiating any proceeding between the parties.
You covenant that any Jobs entered by you into the RollKall Platform will only be between a Client, an Officer and/or you. Company is not responsible for managing any agreement between Clients, Officers or you. Neither is Company responsible for collecting funds owed to an Officer under the terms of any such agreement.
You may incorporate into the RollKall Platform your agency’s rules and policies governing Officers. RollKall shall not be responsible for enforcing any such rules or policies.
You acknowledge and agree that your Officers that are authorized by you to provide services in connection with Jobs (“Authorized Officers”), Clients, staff, and designees (collectively, the “Authorized Users”) may act as your agent in connection with your relationships with (a) RollKall and (b) any other Authorized Users.
4) BILLING AND PAYMENT
You acknowledge that you are aware that RollKall does not charge for use of the RollKall Platform solely for scheduling purposes; provided, however, that, in the event you elect not to utilize RKPay, RollKall may charge you a monthly licensing fee per Authorized User
Users contract for Jobs directly with other Users through you 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. At your election, Clients must make such payments to Officers or other Users using RKPay 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. Company does not guarantee payments of amounts owed by Clients to Officers or you, and 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 RKPay will be required to provide their credit card and/or bank account details to Company via its 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) (iv) “payment processing fees equal to an amount agreed to in writing by the applicable parties”., (v) if applicable a service charge Company assesses for the RollKall Platform, based upon the Job Payment amount based on fee schedules maintained by Company that will be provided to you and Users at their request, (vi) all applicable 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 hereunder, and (vii) 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, you or Company.
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 government agency 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.
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 you receive confirmation through the RollKall Platform or via email that a Job has been completed, you automatically authorize 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 RKPay (if applicable). 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.
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, 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 WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6) PUBLIC AREAS; ACCEPTABLE USE
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.
7) TERMINATION AND SUSPENSION
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.
8) ACCOUNT, PASSWORD, SECURITY, AND MOBILE PHONE USE, TEXTS AND CALLS
You must register with Company and create an account to use the RollKall Platform. 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.
9) YOUR INFORMATION AND LIKENESS
“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.
Additionally, you acknowledge that you will be required to provide to RollKall sensitive information related to the identity, residence, compensation and other personally identifiable information of Authorized Officers (any such information, the “Officer Information”). You further acknowledge that the Officer Information may be accessible by your Authorized Users. You and RollKall agree: (i) to use the Officer Information only in connection with Jobs, (ii) not to disclose the Officer Information to any other person or entity and (iii) to use commercially reasonable efforts to maintain the confidentiality of the Officer Information. You shall be responsible for maintaining the current status of Authorized Officers on the RollKall Platform and shall restrict access to the RollKall Platform solely to its active Authorized Users.
10) LINKS TO OTHER WEBSITES
The RollKall Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the RollKall Platform to such websites (including without limitation external websites that are framed by the RollKall Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the RollKall Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the RollKall Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the RollKall Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the RollKall Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the RollKall Platform. You will have the ability to disable the connection between your account on the RollKall Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the RollKall Platform. At your request made via e-mail to privacy@RollKall.com, Company will deactivate the connection between the RollKall Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the Username and profile picture that become associated with your account.
11) WORKER CLASSIFICATION AND WITHHOLDINGS
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.
12) INTELLECTUAL PROPERTY RIGHTS
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.
13) COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
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:
14) CONFIDENTIAL INFORMATION
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.
15) Disclaimer of Warranties
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.
16) No Liability
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 YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE ROLLKALL PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING 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 TO COMPANY UNDER THESE TERMS OF SERVICE 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.
18) Dispute Resolution - Arbitration
(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.
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) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Company agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“California PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Company agree that any such Claim will be resolved in arbitration on an individual basis only (that is, to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties to this Agreement agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) 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 and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. 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). 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, Clients or government agencies, but is bound by rulings in prior arbitrations involving the same Officer, Client or government agencies 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 you, however, file 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 you will take place in the county of your billing address. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis; A representative action brought on behalf of others under California PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 18(d) is deemed unenforceable by a court of competent jurisdiction; Claims that may not be subject to arbitration as a matter of law; and Claims related to a breach by you of Section 14 of this Agreement, it being specifically acknowledged that Company may seek injunctive relief in a court without posting a bond to enforce Section 14 of this Agreement, and that Company is not obligated to engage in any informal negotiations before bringing any such action.
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.
(h) 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 E. Las Colinas Blvd. 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.
19) Governing Law
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.
20) No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
21) General Provisions
22) Changes to this Agreement and the RollKall Platform
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.