Last Updated: March 12, 2021
All references to “you”, “your,” or “user”, as applicable, mean the person who accesses, uses, and/or participates in the Website in any manner, and each of your heirs, assigns, and successors.
If you use the Website on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.
OUR PLATFORM AND SERVICES
Rockoly Inc. provides a web based freelance platform whereby users can connect with private chefs for in-person or virtual cooking workshops (“Service”). We also organize the delivery of all necessary workshop food ingredients, wine, and special equipment to customers. This service requires voluntary participation. This service is not to be used by any individuals under 18 years old.
Rockoly offers information about professional services and a platform for to connect to them. We do not provide such professional services. As such we expressly disclaim any responsibility or liability for any professional services and/or merchandise provided to the user, including, but not limited to, a warranty or condition of good and workmanlike services, warranty of fitness for a particular purpose or compliance with any law, regulation, or code. Rockoly is not affiliated with, endorsed or sponsored by any third party merchandise provider or retailer. Rockoly does not do backgrounds checks on professionals.
Users should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person whom you do not know. Certain states may require state-level licensing for projects above specified dollar amounts. We recommend you confirm these licensing requirements with the business and the applicable state and local licensing authorities. In some states, licensing may be required by the county or local authority in which the work is being performed. We recommend you confirm these licensing requirements before proceeding with your project. We always recommend that you ask the Professional to provide you with a copy of their license.
FOOD HAZARDS, PREPERATION, AND DELIVERY
Company is a third-party delivery service. All Customer orders are filled by non-company distributors. As such Company is not liable or responsible for distributers, merchants, or wholesales compliance with applicable federal, state, or local laws, rules, regulations or standards pertaining to product liability, food preparation, and delivery. Upon request, Company will provide any distributer information on any order.
Customers also must take due diligence before placing orders. Customer agrees to Indemnify Company against any claims related to allergic reactions, incorrect deliveries or damaged deliveries. These claims must be filed against distributors.
IN ORDER FOR US TO COMPLETE THE ABOVE SERVICES WE MUST SHARE THE CLIENT’S ADDRESS AND NUMBER WITH A THIRD PARTY FOOD DELIVERY SERVICE.
TRANSACTIONS INVOLVING ALCOHOL
Alcoholic beverages may only be purchased by consumers who are of legal age. If you are a consumer, you expressly represent and warrant that: (i) you are of Legal Age; and (ii) you will provide a valid government-issued photo identification to your Courier upon delivery to you. Deliveries of Alcoholic Beverages may not be made to anyone who is intoxicated, regardless of his or her age. You further understand and acknowledge that neither Company nor the Courier can accept your order of Alcoholic Beverages, and the order will only be delivered if the third-party Merchant accepts your order.
Company does not employ any professional. Professionals are not agents or employees of the company. We provide a software platform which allows you to obtain certain home services that Company fulfills using independent Professionals.
ACCOUNTS AND SECURITY
To access the Services, you must have an account. You must maintain and are responsible for, the confidentiality of your login and password. If requested, you must provide us with a form of identification to verify your identity. The Services are open to everyone – subject to approval of a Website by the Company according to these Terms & Conditions.
You may not use our Services if:
- You are under the age of 18 (Child)
- You do not have the Consent.
- We do not conduct criminal background screenings of our Users, nor are we able to personally identify each User. The Company cannot be held liable for false declarations made by a User. It is thus important to take certain common-sense precautions when meeting with another User. For example, consider informing a close friend or relative of any meeting and plan your first meeting in a public place.
- You have previously been banned from using our Services or similar services.
- The Company cannot be held liable for actions of any nature committed by any User, including any such actions in the course of any events which are organized by the Company or by others using the Services.
CONDITIONS OF ADMISSION
CONDITIONS OF ACCESS
- You shall select a username and a password when signing up to our Services.
- When you sign up, you will become a User of the particular brand of the Services for which you have registered. Although the Company in its discretion may make your profile visible to the Users of one or more of its other Services if you meet requirements, you will not be a User without specific registration.
- Your username and the password shall be personal and confidential. Each User shall keep them confidential and undertakes not to notify or disclose them to third parties or other Users to prevent fraud or phishing.
- All Users undertake not to use another User’s username or password, or any other personal information of another User.
- Any breach of these provisions may lead to cancellation, without prejudice to the liability incurred by the relevant User due to the use of the username and/or password by another User or third party.
- Each User shall take care not to disclose strictly personal information.
- We will take any necessary measures to halt fraudulent behavior, including to prevent the prohibited sharing of usernames or passwords.
- We reserve the option of removing:
- Information published or present on the Websites for more than 6 months;
- The account of a User which has not been used for more than 6 months.
- Each User undertakes not to carry out any action likely to hinder the operation of the Services and undertakes not to disseminate or arrange for the dissemination of viruses, spam, logic bombs, software Websites, etc.
The company shall be compensated [%] per completed service transaction. All prices stated include all relevant local taxes. We reserve the right to change the cost of any of our Services. To the extent permitted by applicable laws and regulations, no refunds will be offered (except in exceptional circumstances such as major service failures). There will be no refund of any payment made by you for a paid service if you haven’t cancelled your contract according to these Terms & Conditions.
The rate for a Professional Service (“Job Rate”) as determined by Rockoly depends on factors, such as location and how frequently a Recurrent Service is ordered, and payment terms may increase. Therefore, the same Professional Service may cost more in a different location or if the Professional Service is ordered less frequently. However, you will be notified prior to any such payment increase with sufficient notice to enable you to cancel the Recurrent Service as set forth herein.
We do not offer Background checks. We advise users to use a third party service to administer background checks.
You may cancel your order at any time. You may still be liable for all costs. You can cancel services by logging into your account on the Websites and following the links, or by writing to Customer Care at email@example.com or by notifying the third party service provider directly.
CANCELLATION BY THE COMPANY
If we cancel services based on the breach of these Terms & Conditions, the User shall not be entitled to a refund for the period remaining to elapse until the expiration of the account, without prejudice to any damages sought by us as compensation for the loss suffered.
If we cancel an order in its sole discretion for reasons other than that User’s breach of these Terms & Conditions, the User shall be entitled to a refund for the period remaining to elapse until the expiry of the account.
Rockoly may publicly display advertisements, paid content, and other sponsored information. The manner, mode, and extent of such advertising are subject to change without specific notice to you. Service Users may compensate Rockoly to “Promote” themselves in search results and therefore rank higher. Any such Service Users will be clearly designated in applicable search results as “Promoted” or with a similar designation. Rockoly may impose certain quality-related standards for Service Users to qualify as “Promoted”, which standards may be enforced and/or changed at any time.
COLLECTION AND RETENTION OF PERSONAL INFORMATION
CHANGES & MOBILE APPLICATION INFORMATION
The Company may update and amend these Terms & Conditions at any time and the Company will make the updated Terms & Conditions available through the Services. You understand and agree that you will be deemed to have accepted the updated Terms & Conditions if you use the Services after the updated Terms & Conditions are made available to you. If at any point you do not agree to any part of the Terms & Conditions in operation, you should immediately stop using the Services.
- You acknowledge and agree that the Company may make changes to, or stop providing, the Apps, the Websites and/or the Services, or restrict your use of the Apps, the Websites and/or the Services, at any time without notifying you in advance.
- You are solely responsible for all data, SMS, mobile carrier, Internet and telecommunications fees and charges incurred in connection with your use of the Apps, the Websites and/or the Services.
- You acknowledge and agree that the Company can disable or deny you access to the Apps, the Websites and/or the Services, without notifying you in advance, for any reason or no reason including, without limitation, for any violation of these Terms & Conditions and/or if the Company suspects that you have used any aspect of the Services to conduct any fraudulent or illegal activity. If the Company disables your access to your account, you may be prevented from accessing the Services, your account details or any materials contained in your account.
LICENSE, RESTRICTIONS AND CONDITIONS OF USE
Subject to the terms and conditions of this Agreement and for the sole purpose of using the Services, the Company hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to:
- Install any or all of the Mobile Apps on one or more mobile devices which are owned by you, are under your control and which meet the Company’s minimum specifications;
- Install any or all of the Desktop Apps on one or more computers which are owned by you, are under your control and which meet the Company’s minimum specifications; and
- View, review and utilize the Apps and any related information provided to you by the Company.
You agree not to access, or attempt to access, the Services by any means other than through the Websites or the Apps. You specifically agree not to access, or attempt to access, the Services through any automated means (including, without limitation, through the use of scripts, bots, unauthorized third party apps, spiders or web crawlers).
You agree that you will not, in connection with your use of the Apps, the Websites and/or the Services, violate any applicable law, ordinance, rule, regulation or treaty.
You shall not connect to or use the Apps, the Websites and/or the Services in any way that is not expressly permitted by these Terms & Conditions.
You may not:
- Remove any proprietary notices from the Services or any copy of software provided to you by the Company (“Software”);
- Cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Apps, the Services or any Software;
- Sell, assign, rent, lease, act as a service bureau, or grant rights in the Apps, the Services or any Software, including, without limitation, through sublicense, to any other person or entity without the prior written consent of the Company; or
- Make any false, misleading or deceptive statement or representation regarding the Company and/or the Apps, the Websites or the Services.
- Promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- Is defamatory, obscene, pornographic, vulgar or offensive;
- Is violent or threatening or promotes violence or actions that are threatening to any other person;
- Infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- Violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- Constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or is otherwise contrary to applicable laws and regulations;
- Disseminate any personal information of any other User, including any contact details or similar, without that User’s consent;
- Institute, assist, or become involved in any type of attack, including, without limitation, denial of service attacks, upon the Apps, the Websites and/or the Services (or any servers, systems or networks connected to the Apps, the Websites and/or the Services);
- Attempt to obstruct, disrupt or interfere with the operation of the Apps, the Websites and/or the Services or any other person’s or entity’s use of the Apps, the Websites and/or the Services (or any servers, systems or networks connected to the Apps, the Websites and/or the Services);
- Attempt to gain unauthorized access to the Apps, the Websites, the Services, accounts registered to other Users, or any servers, systems or networks connected to the Apps, the Websites and/or the Services;
- Use the Apps, the Websites and/or the Services to
- Develop, generate, transmit or store information that is unlawful or illegal, defamatory, harmful, abusive, hateful, racially or ethnically offensive that encourages conduct that would be considered a criminal offence; or
- Perform any unsolicited commercial communication not permitted by applicable law.
- Each User undertakes to report any abuses to the Company, as well as any improper comments or conduct by other Users.
We conduct regular of the use of our Services from time to time, including for safety and fraud protection purposes. We reserve the right to remove all or part of any content created, used or circulated publically or privately by Users which is not compliant with applicable laws or regulations, or which violates these Terms & Conditions.
We may contact any User to request that you remedy any non-compliance with applicable laws or regulations, or these Terms & Conditions.
The Company may at its option, terminate its relationship with you, or may disable your account immediately if it determines you are using the Services contrary to the restrictions found in this Section 18 or any other terms of these Terms & Conditions.
We may exclude any User from, or terminate any User’s access to, our Services in our sole discretion for any reason, including, but not limited to, any non-compliance with applicable laws or regulations or these Terms & Conditions. You acknowledge and agree that you are solely responsible, and the Company has no responsibility or liability to you or any other person or entity, for any breach by you of these Terms & Conditions or for the consequences of any such breach.
LICENSE OF LIKENESS AND APPEARANCE. All users hereby consent to Rockoly Inc. using users voice, likeness, appearance and image on video, audio, photographic, digital, electronic, online format or on any and all other media, or use a pre-recorded format of Your voice, likeness, appearance and image on video, audio, photographic, digital, electronic, online format or on any and all other media (collectively, the “Recording” or “Recordings”). Users agree that the Rockoly Inc. may edit, modify, add to, subtract from, or delete any of the Recordings and may use any of them in whole or in part and exhibit, transmit, broadcast, display, telecast, copy, distribute or disseminate them in any media (including any digital or electronic or other mode of communication or transmission) in perpetuity. Further, users acknowledge and agree that the Rockoly Inc. has no obligation to use the Recording.
The Platform may contain blogs, message boards, applications, opportunities to provide reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users and with Company (collectively, “Forum Areas”).
You hereby grant us a non-exclusive, transferable, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all Information that is posted to Forum Areas from or through your account on the Company Platform, including but not limited to all images, videos, musical works and text included in such postings and to such other persons and/or entities as Company may designate. The rights you grant in this license are for the limited purpose of operating, advertising, marketing, promoting, and improving the Company Platform. We reserve the right to remove postings from Forum Areas in our sole discretion.
LINKS TO OTHER WEBSITES
INTELLECTUAL PROPERTY OWNERSHIP
The Website, and the media and materials contained in the Website, including all intellectual property rights in the Website, are the sole and exclusive property of Rockoly Inc. and its licensors. Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Rockoly Inc. in these Terms are expressly reserved.
In accordance with the DMCA, we will review all submissions or claims of copyright infringement. Please email us below. In appropriate circumstances we will terminate the Account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders.
DISCLAIMER OF WARRANTIES
You understand and agree that your use of the Apps, the Websites and/or the Services is at your sole risk. The Apps, the Websites and the Services are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied (to the maximum extent permitted by applicable law).
To the maximum extent permitted by applicable law, the Company expressly disclaims all warranties and conditions including, without limitation, warranties and conditions of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and those arising from course of dealing or usage of trade.
The Company makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through, or the performance of, the Apps, the Websites and/or the Services.
You acknowledge and agree that any material downloaded or otherwise obtained through the use of the Apps, the Websites and/or the Services is at your own risk and that you will be solely responsible for any damage to your computer, mobile phone or other device or any loss of data resulting from downloading or obtaining such material.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the Company expressly disclaims all warranties and conditions to the maximum extent permitted by applicable law.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL , THE COMPANY, ITS SUBSIDIARIES OR HOLDING COMPANY, ANY SUBSIDIARY OF ANY SUCH HOLDING COMPANY, AFFILIATES, SUCCESSORS, ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, WHETHER INDIVIDUALLY OR COLLECTIVELY (THE “RELATED PARTIES”), BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE DO NOT PREPARE FOOD OR ALCOHOL. WE ARE NOT RESPONSIBLE FOR ANY ALLERGIC REACTIOONS, IMPROPER FOOD PREPARATION, OR ILLEGAL INTOXICATION.
WE DO NOT CONDUCT BACKGROUND CHECKS ON USERS REGISTERING FOR THE SERVICES IN ANY WAY. ANY ATTEMPT BY US TO SCREEN USERS IS NOT A GUARANTEE OF SAFETY ON THE WEBSITE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE WEBSITE AND WHEN MEETING OTHER USERS IN PERSON.
THE RELATED PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL ARISING OUT OF THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER USER OF THE SERVICES, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OR TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS IN THIS CLAUSE, THE RELATED PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES DURING THE TERM OF YOUR SERVICE.
IN ALL CASES, THE RELATED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
You further understand and expressly agree that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing release are hereby expressly and forever waived. You acknowledge that Section 1542 provides that: “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.” The releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
For the purposes of this clause, “Force Majeure Event” means any act or event beyond the reasonable control of the Company, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks. In the event of a Force Majeure Event that results in Services being unable to be provided for 14 days or more, either party may terminate this Agreement with immediate effect upon written notice to the other and neither party will have the right to claim compensation from the other. The Company will not be liable for any failure to perform or any delay in performance of, any of its obligations under these Terms & Conditions caused by a Force Majeure Event.
You agree to, and you hereby, defend, indemnify, and hold the Related Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Related Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter:
- Any of your data posted or otherwise provided on the Services
- Your use of the Services and your activities in connection with the Services, including your communications and meetings with Users you meet through the Services
- Any claims related to allergic reactions, incorrect deliveries or damaged deliveries. These claims must be filed against distributors.
- Your breach or alleged breach of this Agreement or any additional terms
- Your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services
- Information or material transmitted through your computer or other devices, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity
- Any misrepresentation made by you; and the Related Parties’ use of the information that you submit to us (including your Material) (all of the foregoing, “Claims and Losses”).
- Any claim which is brought against a third party servicer for any reason.
You will cooperate as fully required by Related Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, Related Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Related Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Related Party.
DISPUTE RESOLUTION; ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ROCKOLY INC. AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Rockoly Inc. agree (a) to waive your and Rockoly Inc’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Services (including, without limitation, Third Party Purchases), resolved in a court, and (b) to waive your and Rockoly Inc’s respective rights to a jury trial. Instead, you and Rockoly Inc. agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS
You and Rockoly Inc. agree that any Dispute arising out of or related to these Terms or the Sites, Content or Services is personal to you and Rockoly Inc. and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Rockoly Inc. agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Rockoly Inc. agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
FEDERAL ARBITRATION ACT
You and Rockoly Inc. agree that these Terms affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
NOTICE; INFORMAL DISPUTE RESOLUTION
You and Rockoly Inc. agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Rockoly Inc. shall be sent by certified mail or courier to:
54 Merion Road, Po 723,
Dover, De 19904
Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Rockoly Inc. account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Rockoly Inc. cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Rockoly Inc. may, as appropriate and in accordance with this Section, commence an arbitration proceeding or, to the extent specifically provided for or, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND ROCKOLY INC AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR ROCKOLY INC WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND ROCKOLY INC WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Rockoly Inc. agree that (a) any arbitration will occur in the State of Delaware, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Delaware and the United States, respectively, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
AUTHORITY OF ARBITRATOR
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
RULES OF JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge or agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section by writing to: Rockoly Inc. 54 MERION ROAD, PO 723, DOVER, DE 19904. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration.
WAIVER OF JURY TRIAL
With the exception of your agreement to waive any right to a jury trial or to participate in a class action, if any other provision in this Section is held to be illegal, invalid or unenforceable, such provision shall be fully severable, this Section shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this section, and the remaining provisions of this section shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Section a legal, valid and enforceable provision as similar as possible to the former provision.
The Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
No waiver by the Company of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
The Company may assign its rights under these Terms & Conditions to any person or entity without your consent. The rights granted to you under these Terms & Conditions may not be assigned without the Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
GOVERNING LAW AND VENUE
These Terms, your access to and use of the Sites and your order, receipt and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the Website of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Delaware and the United States, respectively, sitting in the State of Delaware.