Terms of Use

DISPUTE RESOLUTION – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY ACCESSING OR USING THE WEBSITE AND/OR SERVICES, OR BY OTHERWISE AGREEING TO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE ACTION OR PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. YOU AND WE AGREE THAT CLASS ARBITRATIONS, CLASS ACTIONS, OR OTHER COMBINED PROCEEDINGS ARE NOT PERMITTED.

Scope and Nature of Arbitration and Class Action Waiver. You and we agree that any and all claims and disputes arising from or relating in any way to the subject matter of these Terms, your use of the Website and/or Services, or your and GatherUp’s dealings with one another (including, but not limited to, your receipt of marketing or informational telephone calls, text messages, emails, or other communications from or on behalf of GatherUp whether through the Messaging Services or not) shall be finally settled and resolved through BINDING INDIVIDUAL ARBITRATION as described in this section. You and we also agree that the arbitration provision and class action waiver apply to claims made regarding past, present, or future conduct, and also apply to claims made independently or with other claims. 

This agreement to arbitrate is intended to be interpreted broadly. YOU AND WE AGREE THAT “CLAIMS” AND “DISPUTES” SUBJECT TO THIS ARBITRATION PROVISION THEREFORE ARE TO BE GIVEN THE BROADEST POSSIBLE MEANING AND INCLUDE CLAIMS OF EVERY KIND AND NATURE, INCLUDING, BUT NOT LIMITED TO, INITIAL CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD-PARTY CLAIMS, AND CLAIMS BASED ON ANY FEDERAL, STATE, OR LOCAL CONSTITUTION, STATUTE, REGULATION, ORDINANCE, WARRANTY, COMMON LAW RULE (INCLUDING RULES RELATING TO CONTRACTS, TORTS, NEGLIGENCE, FRAUD, OR ANY OTHER INTENTIONAL WRONGS), AND EQUITY. THEY INCLUDE CLAIMS AND DISPUTES THAT SEEK RELIEF OF ANY TYPE—INCLUDING ACTUAL, STATUTORY, OR PUNITIVE DAMAGES AND/OR INJUNCTIVE, DECLARATORY, OR OTHER EQUITABLE OR PROSPECTIVE RELIEF.

There is no judge or jury in arbitration. Generally, arbitration procedures are simpler and more limited than rules applicable in court, and review by a court is limited. Neither you nor we will be able to have a court or jury trial or participate in a class action or class arbitration. You and GatherUp each understand and agree that by agreeing to resolve any dispute through individual arbitration, YOU AND GATHERUP ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR ANY SIMILAR PROCEEDING. The arbitrator may not consolidate or combine the claims or arbitrations of multiple parties.

Notwithstanding the foregoing, nothing in these Terms or arbitration provision will be deemed to waive, preclude, or otherwise limit the right of you or GatherUp to file suit in a court of law to address an intellectual property infringement claim on a non-class or non-collective basis.

Pre-arbitration Dispute Process. In the event of a dispute, and before initiating an arbitration proceeding under this section, you and we agree that the party alleging a dispute must send to the other party a notice of dispute, which is a written statement that sets forth the name, address, and contact information of the party giving the notice; a brief summary the facts giving rise to the dispute; and the relief requested. 

You must send any notice of dispute to Traject Reviews, LLC, d/b/a GatherUp, 1499 W 120th Ave #110, Westminster, CO 80234, USA, Attention: Legal or you can email us the notice of dispute at [email protected]. We will send any notice of dispute to you at the contact information we have for you. You and we agree to attempt to resolve a dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After that sixty (60) day period and not before, you or we may commence an arbitration proceeding in accordance with this section.

Arbitration Procedures and Rules. If you and we do not resolve a dispute by informal negotiation, the dispute shall be resolved by binding individual arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. The arbitration will be governed by the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”), as modified by this section. The arbitration will be conducted by JAMS using one arbitrator with substantial experience in resolving commercial contract or consumer disputes (as appropriate), who shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Rules. If JAMS is unable or unwilling to arbitrate a dispute, then the dispute may be referred to any other arbitration organization or arbitrator that you and we both agree upon in writing or that is appointed pursuant to section 5 of the Federal Arbitration Act.

For any claim where the total amount of the award sought is $10,000 or less, the arbitrator, you, and we must abide by the following rules: (a) the arbitration shall be conducted solely based on telephone or online remote appearances and/or written submissions (or some combination thereof); and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the JAMS Rules and the hearing (if any) will be conducted under the JAMS Rules in person (at a mutually agreeable location) or virtually by conference call, videoconference, or using other communications technology with participants in one or more geographical places, or in a combined form. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.

Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

You and GatherUp empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of these Terms or the arbitration provision—including the formation of the agreement to arbitrate, the arbitrability of any dispute, and any claim that all or any part of these Terms are void or voidable (such as, but not limited to, whether the arbitration provision is unconscionable).

The JAMS Rules and instructions about how to initiate an arbitration are available at www.jamsadr.com or 1-800-352-5267.

Arbitration Fees and Costs. In accordance with the JAMS Rules, the party initiating the arbitration (either you or GatherUp) is responsible for paying a filing fee. However, if the arbitrator issues you an award of damages and: (a) that award is greater than the amount of our last written settlement offer; or (b) if we did not make a settlement offer, then in addition to paying for any JAMS Case Management Fees and all professional fees for the arbitrator’s services, we will reimburse you for the filing fees you incurred. (During the arbitration, the amount of any settlement offer made by you or GatherUp shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.) Further, if you demonstrate that paying the arbitrator’s costs and fees would be prohibitively expensive for you, we shall pay those costs and fees regardless of whether you prevail in the arbitration—unless the arbitrator determines that your claim was frivolous or brought for an improper purpose.

Governing Law. This arbitration agreement involves interstate commerce and, therefore, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), and not by state law. THE ARBITRATOR WILL FOLLOW APPLICABLE SUBSTANTIVE LAW TO THE EXTENT CONSISTENT WITH THE FAA, APPLICABLE STATUTES OF LIMITATION, AND APPLICABLE PRIVILEGE RULES, AND SHALL BE AUTHORIZED TO AWARD ALL REMEDIES AVAILABLE IN AN INDIVIDUAL LAWSUIT UNDER APPLICABLE SUBSTANTIVE LAW, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, STATUTORY, AND PUNITIVE DAMAGES, AS WELL AS, DECLARATORY, INJUNCTIVE, AND OTHER EQUITABLE RELIEF—INCLUDING PUBLIC INJUNCTIVE RELIEF AND ATTORNEYS’ FEES AND COSTS.

Enforceability. Notwithstanding any provision in these Terms to the contrary, you and we agree that if the class action waiver above is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and any proceeding shall be brought and proceed exclusively in the state courts of competent jurisdiction located in Seattle, Washington, or the United States District Court for the Western District of Washington, and you and we agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes.

If the arbitration provision in this section is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in the state courts of competent jurisdiction located in Seattle, Washington, or the United States District Court for the Western District of Washington, and you and we agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes, and you still waive your right to a jury trial and waive any right to initiate or proceed in a class or collective action. You also remain bound by any and all limitations on liability and damages included in these Terms.

Survival. This arbitration agreement and class action waiver shall survive termination of your use of or access to the Website and/or Services or termination of our dealings with you.

Intended Beneficiaries. AN INTENDED BENEFICIARY OF THIS ARBITRATION PROVISION AND CLASS ACTION WAIVER MAY ENFORCE THE PROVISIONS IN FULL WITH RESPECT TO ANY CLAIMS BETWEEN THEM ON THE ONE HAND AND YOU ON THE OTHER ARISING FROM OR IN ANY WAY RELATING TO THESE TERMS, OUR DEALINGS WITH YOU, OR THIS ARBITRATION PROVISION.

INTENDED BENEFICIARIES ARE OUR AGENTS, PRINCIPALS, REPRESENTATIVES, DIRECTORS, OFFICERS, SHAREHOLDERS, GOVERNORS, MANAGERS, AND MEMBERS. INTENDED BENEFICIARIES ALSO ARE OUR PARENTS, SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSEES, ATTORNEYS, PREDECESSORS, SUCCESSORS, JOINT VENTURERS, CONTRACTORS, ASSIGNS, DESIGNEES, VENDORS, SERVICERS, AND SERVICE PROVIDERS. A SERVICE PROVIDER IS ANY THIRD-PARTY PROVIDING US OR ANY INTENDED BENEFICIARY ANY GOODS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OUR DEALINGS WITH YOU OR THIS ARBITRATION PROVISION, INCLUDING WITHOUT LIMITATION ANY PROVIDER THAT SENDS GATHERUP’S TEXT MESSAGES. INTENDED BENEFICIARIES INCLUDE PAST, PRESENT, AND FUTURE PERSONS LISTED IN THIS PARAGRAPH.

THIS ARBITRATION PROVISION AND CLASS ACTION WAIVER MAY BE ENFORCED BY OR AGAINST ANY PERSON OR ENTITY PURPORTING TO BRING CLAIMS ON YOUR BEHALF, INCLUDING ANY AGENT, REPRESENTATIVE, GUARDIAN, OR TRUSTEE. THIS ARBITRATION PROVISION AND CLASS ACTION WAIVER MAY ALSO BE ENFORCED BY OR AGAINST ANY PERSON OR ENTITY WHO ACQUIRES ANY RIGHT OR INTEREST THAT, BUT FOR THE TRANSFER OF THE RIGHT OR INTEREST, WOULD HAVE BELONGED TO US OR AN INTENDED BENEFICIARY OF THIS ARBITRATION PROVISION. YOU ALSO ACKNOWLEDGE THAT YOU SHALL BE ESTOPPED FROM DENYING AN OBLIGATION TO ARBITRATE COVERED DISPUTES WITH AN INTENDED BENEFICIARY. 

Time Limitations on Bringing Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR USE OF OR ACCESS TO THE WEBSITE AND/OR SERVICES, OR YOUR AND GATHERUP’S DEALINGS WITH ONE ANOTHER IN CONNECTION WITH THE WEBSITE AND/OR SERVICES MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO-YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.

Opting Out of Arbitration. If you wish to opt-out of this agreement to arbitrate, within 45 (forty-five) days of when you initially use or access the Website and/or Services or otherwise agree to these Terms (whichever occurs first), you must send us a letter or email stating “Request to Opt-Out of Agreement to Arbitrate” at the following physical address or email address AND MUST INCLUDE YOUR FULL NAME, MAILING ADDRESS, AND TELEPHONE NUMBER:

Traject Reviews, LLC, d/b/a GatherUp, 1499 W 120th Ave #110, Westminster, CO 80234, USA, Attention: Legal

[email protected] 

If you do not opt-out within 45 (forty-five) days of when you initially use or access the Website and/or the Services or otherwise agree to these Terms (whichever occurs first), then you are not eligible to opt-out of this arbitration agreement.

In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state courts of competent jurisdiction located in Seattle, Washington, or the United States District Court for the Western District of Washington, and you agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes, and you still waive your right to a jury trial, waive your right to initiate or proceed in a class or collective action, and remain bound by any and all limitations on liability and damages included in these Terms.