Last updated: August 21, 2023
You represent to GatherUp that you are lawfully able to enter into contracts in your residence jurisdiction. If you are entering into these Terms for an entity, such as the company you work for, you represent that you have authority to bind that entity and you agree that “you” as used in these Terms includes both you personally and the entity you represent. You and GatherUp are collectively referred to as the “Parties” and each is a “Party”.
You are responsible for violations of these Terms by anyone using the Website with your permission or using your account on an unauthorized basis. Your use of the Website to assist another person in an activity that would violate these Terms if performed by you is a violation of these Terms.
Users of our Website may include the following:
ATTENTION!—ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. YOU WILL NOT BE ABLE TO BRING OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AGAINST US. CAREFULLY REVIEW THE SECTION ENTITLED “DISPUTE RESOLUTION – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER” BEFORE YOU AGREE TO THESE TERMS OR ACCESS THE WEBSITE AND/OR SERVICES.
To access or use the Website, you must be 18 years of age or older, not be a competitor of ours (as we may determine in our sole discretion), and not have been previously banned from the Website or had your account closed by us. If you use the Website on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
We grant you permission to use the Website subject to the restrictions in these Terms. Your use of the Website is at your own risk, including the risk that you might be exposed to Content (defined below) that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
The Website and the Services may contain HTML, applications, messages, texts, files, images, photos, videos, sounds, software, code, scripts, data, FAQs and other content of GatherUp or its licensors (“Content”). The Website is protected by copyright, trademark, trade secret and other laws; and as between you and GatherUp, GatherUp owns and retains all rights in the Website, the Services, and all Content that GatherUp creates and makes available in connection with the Website and Services. GatherUp hereby grants to you a limited, revocable, non-sublicensable license to use the Website and the Services subject to these Terms. Except as expressly permitted by GatherUp, you shall not copy, download, stream, capture, reproduce, duplicate, archive, upload, modify, translate, create derivative works based upon, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, or otherwise use or transfer any Content.
When you upload, post, publish, or make available any Content on the Website or through the Services, you agree to grant to GatherUp a non-exclusive, royalty-free license, to use or disclose to third parties any such Content subject to the terms of the Privacy Notice. You acknowledge and understand that GatherUp may, at its sole discretion, delete or remove any of your Content from the Website. All Content must comply with our Review and Mobile Marketing Policy. You hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable right to use, copy, modify, adapt, publish, reproduce, translate, create derivative works from, distribute, publicly perform and display, analyze and commercialize your Content to provide the Services.
Your failure to comply with the provisions of this section may result in the termination or suspension of your access to the Website and/or Services in GatherUp’s sole discretion and may also expose you to civil and/or criminal liability. You agree not to, whether by yourself or anyone on your behalf,: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble the Website; (ii) use the Website in connection with any spam, unsolicited mail, harassment, wire fraud or similar conduct; (iii) interfere with or violate any other user or other third party’s right to privacy or other rights including intellectual property rights, or harvest or collect personally identifiable information about any users of the Website without their express consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine; (iv) transmit or otherwise make available in connection with the Website any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (v) interfere with or disrupt the operation of the Website, or the servers or networks that host the Website, or disobey any requirements, procedures, policies, or regulations of such servers or networks; (vi) sell, license, or exploit for any commercial purposes any use of or access to the Website; (vii) frame or mirror any parts of the Website without GatherUp’s prior express written authorization; (viii) create a database by systematically downloading and storing all or any of the content from the Website; (ix) impersonate any person or entity or provide false or misleading personal information; and (x) use the Website for any illegal, immoral or unauthorized purpose; (xi) use the Website in violation of any governmental laws, rules, regulations or orders that are applicable to your use of the Website.
Upon creation of a Customer account, you will be prompted to provide accurate information about your business, including the category of goods and/or services offered by your business. You agree to provide accurate and thorough information, including an accurate categorization, of your business. You are responsible for maintaining the confidentiality of your account password and providing complete and accurate information. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account, user name or password. GatherUp shall not be liable for any losses you incur as a result of someone else’s use of your account or password, either with or without your knowledge. You may be held liable for any losses incurred by GatherUp, our affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account or password. In order to comply with applicable laws and restrictions enforced by our third-party partners, certain functionality of our Services is unavailable to businesses in certain categories. For more information, please see “SMS AND/OR MMS MARKETING THROUGH OUR WEBSITE” below.
Customer’s Services may include functionality whereby Customer engages with End Users through by utilizing SMS/MMS/text messages, email, or other methods of communication. Through an application provided by GatherUp, or through the Services, a Customer can enable features whereby Customer can send marketing and other messages via SMS/MMS/text message regarding the Customer’s products or services (the “Messaging Services”). “Messages” refers to both SMS/MMS/text messages and email messages. If Customer utilizes the Messaging Services, Customer represents, warrants, and covenants to the following:
The Messaging Services offered by us through our third-party partner, Twilio, 101 Spear Street, First Floor, San Francisco, California 94105, USA. The Messaging Services use Twilio to power backend infrastructure which enable sending of SMS/MMS/text messages. You may not use our Messaging Services if your business operates in one of the following forbidden message categories: high-risk financial services, third-party lead generation services, debt collection or forgiveness, “get rich quick” schemes, illegal substances (including Cannabis and CBD in the United States), gambling, or “S.H.A.F.T.” use cases (sex, hate, alcohol, firearms, tobacco) (the “Forbidden Message Categories”). A complete list of the Forbidden Message Categories and additional information is available here. All use of Twilio services we offer are subject to Twilio’s Acceptable Use Policy and the Twilio Messaging Policy and if you utilize our Messaging Services, you must adhere to all of the requirements set forth in the aforementioned policies and the guidance relating to Forbidden Message Categories, including but not limited to ensuring proper age gating procedures are in place prior to sending SMS/MMS/text messages.
When creating an account, you may sign up to receive certain communications in connection with the Website and/or Services. You can opt-out of non-essential email communications by using the unsubscribe link or instructions in each communication GatherUp sends or by contacting us at [email protected].
If you provided your phone number to GatherUp and gave your express written consent to receive marketing communications via such phone number from GatherUp, you agree to receive automated promotional and personalized marketing text (e.g., SMS, MMS, text) messages from or on behalf of GatherUp—including text messages that may be sent using an automatic telephone dialing system or an automated system for the selection and/or dialing of numbers —to the mobile telephone number you provided when signing up or any other number that you expressly designate. Your consent to receive our automated marketing text messages is not required to make a purchase from us. You will receive these communications even if your mobile number is registered on any state or federal do-not-call list. The message frequency may vary from time to time. If you wish to unsubscribe from receiving text marketing messages and notifications, reply with STOP to any mobile message sent from us or use the unsubscribe link we provided you within any of our messages. Please be aware that the method for unsubscribing (either replying STOP or using the unsubscribe link) may be different depending on the users’ geographic location. You are requested to follow the instructions detailed in your subscription message if you wish to unsubscribe from receiving text marketing messages and notifications. You understand and agree that alternative methods of opting out, such as using alternative words or requests, will not be considered a reasonable means of opting out. We do not charge for the service, but you are responsible for all charges and fees associated with text messaging imposed by your telecommunication provider. For any questions, please text HELP to the number you received the messages from. You can also contact us at [email protected] for more information.
We have the right to modify any telephone number or short code we use to operate the service at any time. You will be notified on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages. To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the service, any errors in such information, and/or any action you may or may not take in reliance on the information or service.
When using the Services, Customer agrees to adhere to the applicable Third Party Terms, specifically for all major review sites, as well as the following:
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about GatherUp or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in GatherUp’s sole discretion. You understand that GatherUp may treat Feedback as nonconfidential.
The trademarks, logos, and service marks, whether registered or not, displayed on the Website and the name “GatherUp” (collectively, the “Marks”) are the property of GatherUp or other third parties. You are not permitted to use these Marks without the prior written consent of GatherUp or such other third party.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless GatherUp, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the “GatherUp Entities”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (i) your access to or use of the Website and/or the Services, (ii) your violation of the Terms or the Privacy Notice, (iii) any products or services (including the Services) purchased or obtained by you in connection with the Website, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. GatherUp reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of GatherUp. You agree to promptly notify the GatherUp Entities or any such third-party claims. GatherUp will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE GATHERUP ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SITE.
THE SITE IS MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE GATHERUP ENTITIES MAY NOT MONITOR, CONTROL, OR VET USER CONTENT. AS SUCH, YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND SOLE RISK. THE GATHERUP ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, THE GATHERUP ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS (INCLUDING THEIR CONTENT, ORDER, AND DISPLAY), OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SITE.
THE GATHERUP ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS, LISTED ON THE SITE OR THE SITE’S USERS. YOU ACKNOWLEDGE THAT THE GATHERUP ENTITIES DO NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THIS SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, THE GATHERUP ENTITIES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THIS SITE. ACCORDINGLY, THE GATHERUP ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM SUCH THIRD PARTY’S ACTIONS OR OMISSIONS. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND SOLE RISK.
THE GATHERUP ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES OR PERSONS LISTED ON THE SITE, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY THE GATHERUP ENTITIES OR AN OFFICER, DIRECTOR, EMPLOYEE, AGENT, PROVIDERS, MERCHANTS, SPONSORS OR LICENSORS SHALL CREATE A REPRESENTATION OR WARRANTY OF ANY KIND, NOR SHALL YOU RELY ON SUCH INFORMATION OR ADVICE.
CUSTOMER ACKNOWLEDGES THAT EMAIL AND TEXT/SMS/MMS MESSAGES ARE INSECURE MEDIUMS THAT ARE GENERALLY NOT ENCRYPTED IN TRANSIT AND SECURITY OF INFORMATION TRANSMITTED THROUGH THE INTERNET CAN NEVER BE GUARANTEED AND, ACCORDINGLY, GATHERUP IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET OR FOR CHANGES TO OR LOSS OF CUSTOMER CONTENT IN CONNECTION WITH THE SERVICES.
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY AGAINST THE GATHERUP ENTITIES IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
THE GATHERUP ENTITIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SITE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE GATHERUP ENTITIES IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100. THE GATHERUP ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
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 Grade Us, LLC, d/b/a GatherUp, 7345 164th Ave NE, Ste 145 PMB 2257, Redmond, Washington 98052, 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:
Grade Us, LLC, d/b/a GatherUp, 7345 164th Ave NE, Ste 145 PMB 2257, Redmond, Washington 98052, USA, Attention: Legal
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.
You may terminate these Terms as applicable to you at any time by closing your account, discontinuing your use of the Website and/or Services, and, if you are a Customer, canceling the method of payment here. Please review our Privacy Notice for information about what we do with your account and information upon termination.
We may terminate the right to use of the Website and/or Services, suspend your ability to use certain or all portions of the Website and/or Services, and prohibit you altogether from using the Website and/or Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Website, the Services, your Content, or any other related information.
If you believe that any Website Content violates your copyright, please see our Copyright Policy available at https://www.grade.us/home/dmca/ for instructions on sending us a notice of copyright infringement. It is the policy of GatherUp to terminate the user accounts of repeat infringers.
We reserve the right to modify, update, or discontinue the Website and/or our Services at our sole discretion, at any time, for any or no reason, and without notice or liability. We may provide you with notices, including those regarding changes to the Terms by email, regular mail or communications through the Website. The Terms contain the entire agreement between you and us regarding the use of the Website unless otherwise set forth in a separate written agreement with GatherUp and supersede any prior agreement between you and us on such subject matter. Any failure on GatherUp’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of the Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with GatherUp’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void. The section titles in the Terms are for convenience only and have no legal or contractual effect. If you have any question regarding the use of the Website, please contact us at [email protected].
We may modify the Terms from time to time. The most current version of these Terms will be located here. You understand and agree that your access to or use of the Website is governed by the Terms effective at the time of your access to or use of the Website. If we make material changes to these Terms, we will notify you by email, by posting a notice on the Website prior to the effective date of the changes, or by updating the “Last updated” date below. Any such modification will be effective upon our posting of new Terms. You understand and agree that your continued access to or use of the Website after the effective date of modifications to the Terms indicates your acceptance of the modifications.
If you have a question about these Terms, or you would like to contact us about any of your rights mentioned herein, please contact us at [email protected]. You may reach us by mail at Grade Us, LLC, d/b/a GatherUp, 7345 164th Ave NE, Ste 145 PMB 2257, Redmond, Washington 98052, USA.