Terms of Use — Made By Gather

Last Updated: August 23, 2023

These terms and conditions and all other legal documents incorporated by reference (collectively, the “Terms”) are a legal contract between “you” and Sensio Inc dba Made by Gather and our brands, affiliates, and subsidiaries, including Bella Brands LLC, Beautiful Brands LLC, and CRUX Brands LLC, (collectively “Company,” “we,” “our,” or “us”) with respect to access to and use of our associated internet properties (including without limitation https://madebygather.com/, https://cruxgg.com/, https://cruxkitchen.com/, https://beautifulbydrew.com/, https://bellahousewares.com/) as linked and offered by us, our subsidiaries and/or affiliated companies, and govern your use of all the text, data, information, software, graphics, photographs, audio, video, content, materials, brochures, identifying marks, and more contained therein (all of which we refer to as our “Content”) that we and our affiliates may make available to you, as well as any services (“Services”) we may provide through any of our websites (all of which are referred to in these Terms, collectively, as the “Site”)

IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS GOVERN YOUR USE OF THIS SITE. BY AGREEING TO THESE TERMS OR ACCESSING, VIEWING, BROWSING, VISITING, REGISTERING IN, OR USING THIS SITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, PLEASE DO NOT USE THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.

These Terms contain a dispute resolution and arbitration provision, including a class action waiver that affects your rights under these Terms and with respect to disputes you may have with the Company. You may opt out of the binding individual arbitration and class action waiver as provided below.

1. Changes

The Company may make changes to the content and Services offered on the Site at any time. The Company can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site. We will ask for your express consent to the updated terms when and where we are legally required to do so. By using this Site after the Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.

2. Privacy Policy

Please review the Privacy Policy for this Site, which is available at https://madebygather.com/privacy-policy (the “Privacy Policy”) which explains how we use information that you submit to the Company. The Privacy Policy is hereby incorporated by reference.

3. General Use

By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 16 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless the Company if the Minor breaches any of these Terms. If you are not at least 16 years old, you may not use the Site at any time or in any manner or submit any information to the Company or the Site.

Subject to these Terms, we authorize you to view and use the information and other Content provided at or through this Site only for your personal, non-commercial use, provided that you retain all copyright, trademark and other proprietary notices contained in the original Content and on any copies of our Content. You are not authorized to modify and/or create derivative works of our Content. You may not, without the prior written permission of Company, “mirror” any material or Content contained on this Site on any other server.

We reserve the right to terminate or modify the Site in whole or in part, in any manner in our sole discretion, without notice. To the extent permitted by law, we will not be liable if, for any reason, all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to all or part of the Site to a subset of permitted users. You are solely responsible for making all arrangements necessary for you to access the Site.

4. Access to the Site

You can visit, view and access our Site without creating an account or logging in. Some features (like ratings and reviews) may require you providing certain information (such as your name and email).

We may offer certain Content, services or features on a restricted basis (our password-restricted areas of the Site). In the event we require you to register with the Company for an account and receive a password, we will require certain information from you. Please refer to our Privacy Policy for the information we may require from you.

Once you have submitted your account registration information, the Company administrator shall have the right to approve or reject the requested registration, in the Company administrator’s sole discretion. If your account is approved by the Company administrator, you will be sent an e-mail that contains a password that will allow you to log-on to the Site using that password for the first time you log into your account on the Site to complete the account registration process.

You are responsible for maintaining the confidentiality of your “Password”, and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify the Company if your Password on this Site is lost, stolen, if you are aware of any unauthorized use of your Password on this Site or if you know of any other breach of security in relation to this Site.

All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date.

5. Purchases

We do not charge for access to the Site or sell products or services through the Site. Nevertheless, in the event we offer any payable products, services or features, if applicable, you agree to pay all fees or charges to your account based on the Company’s fees, charges, and billing terms in effect as shown on the payment page available on the Site at the moment of purchase. If you do not pay on time or if the Company cannot charge your credit card, PayPal or other payment method for any reason, the Company reserves the right to either suspend or terminate your access to the payable features of the Site and terminate these Terms. You are expressly agreeing that, if applicable, the Company is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that the Company may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

6. Our Ownership and our IP

You acknowledge and agree that the content and materials displayed on or through this Site, including without limitation all our Content (such as information, data, text, software, photographs, graphics, video, audio, content, product information, news and press releases, brochures, spec sheets, and/or other materials) is copyrighted by us or our licensors under United States of America and international copyright laws. Our Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission. You must abide by all copyright notices, information, or restrictions contained in or attached to any Content, including the Site itself. Our Copyrights: ‘©Sensio Inc dba Made by Gather. All rights reserved’. ©CRUX Brands LLC. All rights reserved. ‘©Bella Brands LLC. All rights reserved’. ‘©Beautiful Brands LLC. All rights reserved’.

The Company logos, brands, and certain other words and logos displayed on this Site and which may or may not be designated on this Site by “^TM” “®” “^SM” or other similar designations, constitute trademarks, trade names, or service marks (collectively, “Marks”) of Company or other entities. You are not authorized to use any such Marks without our prior written consent. Ownership of all such Marks and the goodwill associated therewith remains with us or our respective licensors.

All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material or any trademark is strictly prohibited without the express written consent of the copyright owner or license. Nothing contained on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use this Site or any information displayed on this Site, through the use of framing, deep linking or otherwise, except: (a) as expressly permitted by these Terms; or (b) with prior written permission from us.

7. Feedback.

If you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site or to our Content, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that the Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

8. USER SUBMISSIONS.

If and to the extent that we elect to accept user generated material, you may have the opportunity to publish, transmit, submit or otherwise post reviews, ratings, comments, feedback or other materials on the Service, and including any information you submit to us, collectively “User Submissions”, some of which may be accessible and viewable by the public.

With respect to User Submissions provided by you, you represent that (i) you created and own the rights to the content or you have the owner’s express permission to post such content, and (ii) the content does not infringe any other person’s or entity’s rights (including, without limitation, copyrights, trademarks or privacy rights) or violate any applicable laws, rules or regulations, these Terms or any of our other posted policies.

We do not claim ownership to User Submissions. However, by providing or posting User Submissions, you irrevocably grant us and our assigns, agents and licensees and other users a worldwide, non-exclusive, irrevocable, royalty-free, fully paid license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, modify, index, adapt, publish, translate, create derivative works from, distribute, display and otherwise exploit such content throughout the world in any media, whether now known or hereafter invented, including for any and all purposes, including commercial or marketing purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or any other person or entity, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. You agree to pay all royalties, fees and other monies owing to any person or entity by reason of the User Submissions that you post on the Service.

We may refuse, alter, or remove a User Submissions without notice for any reason at Company’s sole discretion, including our belief that a User Submissions may violate these Terms or be otherwise objectionable. If and to the extent that we elect to accept User Submissions, we have the right, but not the obligation, to monitor, review, screen, post, remove, reject, modify and store all User Submissions posted on the Service, at any time and for any reason, without notice, including to ensure that all such User Submissions complies with these Terms. We do not endorse any User Submissions and the User Submissions posted does not reflect our opinions, views or advice. You are solely responsible for your User Submissions and the consequences of posting and publishing it and you agree that we are acting only as a passive conduit for your online distribution and publication of your User Submissions. We take no responsibility and assume no liability for any User Submissions that you or any other user or third-party posts or sends on or through the Service, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. Company shall have no obligation to maintain any User Submission after termination of the Service.

Notwithstanding our rules with regard to User Submissions, you may be exposed to content on the Service that is inaccurate, objectionable, inappropriate for children or otherwise unsuited to your purpose or in violation of our Terms. We take no responsibility and expressly disclaim any liability related in any way to your exposure to User Submissions on the Service, whether or not it violates our Terms.

If and to the extent that we elect to accept User Submissions, please choose carefully the information you post on the Service and that you give to other users. You are discouraged from publicly posting your full name, telephone number, street address, e-mail address or other information that identifies you or allows strangers to find you or to steal your identity. You assume all risks associated with dealing with other users with whom you come in contact through the Service, and to the extent that the law permits, you release us from any claims or liability related to any User Submissions posted on the Service and from any claims related to the conduct of any other users.

If you are a California resident, you waive California Civil Code § 1542, 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 SETTLEMENT WITH THE DEBTOR.”

9. Infringement

We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing any content that violates intellectual property rights of others, suspending access to the Site (or any portion thereof) to any user who uses this Site in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances, if applicable, the account of any user who uses the Site in violation of someone’s intellectual property rights.

10. Unauthorized Activities

When using this Site and/or the services, you agree not to:

Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Use racially, ethnically, or otherwise offensive language.
Discuss or incite illegal activity.
Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
Post anything that exploits children or minors or that depicts cruelty to animals.
Post any copyrighted or trademarked materials without the express permission from the owner.
Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
Use any robot, spider, scraper or other automated means to access the Site.
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
Alter the opinions or comments posted by others on this Site.
Post anything clearly false or misleading.
Post anything unrelated to our business, products or services.
Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.

This list of prohibitions provides examples and is not complete or exclusive. the Company reserves the right to with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site or to any other user of this Site. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.

You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.

11. Links to Other Sites

This Site may provide links to third-party websites or resources and contain third-party advertisements. We may also offer certain services provided by our business partners through this Site. You agree and understand that such third-party websites or resources are subject to their own privacy policies and terms of use, that you are subject to those legal terms, and that we have no control over such websites and resources. You acknowledge and agree that we are not responsible for the availability of such websites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or inability to use (i) any sites or resources that this Site provides links to or that provide links to this Site, or (ii) any content, goods, or services available on or through any such sites or resources. To the extent permitted by applicable law, we take no responsibility for third party advertisements which are posted on this Site, nor do we take any responsibility for the goods or services provided by its advertisers. Your dealings with, or participation in promotions of, any third-party advertisers or providers of goods or services found on or through this Site and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third-party advertiser or provider.

In no event shall any reference to any third party or third-party product or service be construed as our approval or endorsement of that third party or of any product or service provided by a third party.

12. Disclaimer of Warranties.

Your use of this Site is at your own risk. The Content has not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors. The Company does not warrant the accuracy of timeliness of the Content contained on this Site. The Company has no liability for any errors or omissions in the Content, whether provided by the Company, our licensors or suppliers or other users.

THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY CONTENT RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE CONTENT. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, OUR CONTENT AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.

13. Limitation of Liability.

THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY CONTENT TO OR FROM THIS SITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COMPANY’S LIABILITY EXCEED THE GREATER OF $100 OR THE AMOUNTS YOU PAY THE COMPANY FOR USE OF, OR IN CONNECTION WITH, THE SITE.

14. Dispute Resolution and Arbitration; Class Action Waiver.

Please read the following (this “Provision”) carefully. It affects your rights.

14.1 Disputes - General

Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us as provided for each internet property in the Contact Us section below (Section 18). This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and the Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Provision carefully. It provides that all Disputes between you and the Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).

For the purpose of this Provision, “the Company” means the Company and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding, arising out of or relating to any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

14.2 Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to the Company, at Made by Gather: info@madebygather.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.

14.3 Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to the Company at info@madebygather.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

14.4 Arbitration Procedures

If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.

Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or the Company may initiate arbitration in either New York County, New York or the federal judicial district that includes your billing address.

Payment of Arbitration Fees and Costs – the Company will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

14.5 Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and the Company specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

14.6 No Judge or Jury in Arbitration

Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms You and the Company are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.

14.7 Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.

14.8 Continuation

This Provision shall survive the termination of your service with the Company or its affiliates. Notwithstanding any provision in these Terms to the contrary, we agree that if the Company makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Company to adhere to the present language in this Provision if a dispute between us arises.

15. California Consumer Notice

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site is provided by Sensio Inc. dba Made by Gather, 261 Madison Ave 25th Floor, New York, NY 10016, USA. If You have a question or complaint regarding the Site, please contact our general Customer Service at info@madebygather.com or +1 866 832 4843, or in the alternative, for each of our brands as set forth in the Contact Us section below (Section 18). California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

16. Local Laws; Export Control.

The Company controls and operates this Site from its headquarters in the United States of America and our Content may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.

17. General.

The Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, New York state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in New York County in the State of New York. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. The Company’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms. If you have purchased or ordered anything from the Site or through the Service, a description of what you have purchased or ordered and relevant pricing or refund information are posted as part of the ordering process for this Site (please consult your individual purchase or order confirmation e-mail for the charges you incurred or related information).