Gathermark Terms of Use Agreement

PLEASE READ THIS TERMS OF USE AGREEMENT ("TERMS OF USE") CAREFULLY. THESE TERMS OF USE APPLY TO (A) THE WEBSITE MADE AVAILABLE BY GATHERMARK, INC. ("Gathermark," "WE," OR "US") AVAILABLE AT https://gathermark.com (THE "WEBSITE") AND ANY OTHER DIGITAL PROPERTY OFFERING SIMILAR PRODUCTS OR SERVICES (COLLECTIVELY WITH THE WEBSITE, THE "PLATFORM"), AND (B) THE PRODUCTS, SERVICES, FEATURES, TECHNOLOGIES, AND/OR FUNCTIONALITIES PROVIDED BY GATHERMARK VIA THE PLATFORM (COLLECTIVELY, WITH THE PLATFORM, THE "SERVICES").

BY ACCESSING OR USING OUR SERVICES IN ANY WAY, BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, MAKING INVENTORY AVAILABLE ON THE SERVICES AND/OR USING THE PLATFORM YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH GATHERMARK, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY OR ON BEHALF OF ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS OF USE. THE TERM "YOU" REFERS TO YOU AS AN INDIVIDUAL AND ANY LEGAL ENTITY THAT YOU HAVE NAMED AS A USER AT THE TIME OF REGISTRATION FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.

THESE TERMS OF USE INCLUDE (1) YOUR AGREEMENT THAT GATHERMARK HAS NO LIABILITY REGARDING THE SERVICES; (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY; (3) YOUR CONSENT TO RELEASE GATHERMARK FROM LIABILITY; AND (4) YOUR AGREEMENT TO INDEMNIFY GATHERMARK FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES.

PLEASE BE AWARE THAT SECTION 15 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND GATHERMARK. AMONG OTHER THINGS, SECTION 15 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. IT ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS AGREEMENT CAREFULLY. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS IN ACCORDANCE WITH SECTION 15.8: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

Your use of, and participation in, certain Services may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in these Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. These Terms of Use and any applicable Supplemental Terms are referred to herein as the "Agreement."

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY GATHERMARK IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION Agreement Updates. When changes are made, Gathermark will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Services, and we will also update the "Last Updated" date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Gathermark may require, you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE. (AGREEMENT UPDATES). PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.

To understand how we process your personal information, please refer to the Gathermark Privacy Policy.

1. Marketplace Services

1. Description of Services

Gathermark provides a marketplace that allows Registered Users (defined below) to offer, sell, request, and buy items. As a marketplace, we do not own or sell the items listed on the Services, so the actual contract for sale is directly between the individual or entity seeking to sell items (the "Seller(s)") and individual or entity seeking to buy items ("Buyers"). While we may, in our discretion, help facilitate the resolution of disputes through various programs, Gathermark has no control over and does not guarantee the existence, quality, authenticity, safety or legality of items offered on the Services; the truth or accuracy of content or listings provided by Registered Users; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or return an item.

2. Gathermark Only Provides a Venue

We do not take part in the interaction between Registered Users. We do not have control over the quality, timing, legality, authenticity, failure to provide, or any aspect whatsoever of any items sold by Sellers, or of the integrity, responsibility, or any actions of any Registered Users. Gathermark makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. When interacting with other Registered Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you do not know.

NEITHER GATHERMARK NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. GATHERMARK AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.

3. Marketplace Payments Services

(a) Additional Onboarding Information

Gathermark reserves the right, but has no obligation, to request additional information from Registered Users (including Buyers and Sellers) to verify your identity in order to comply with laws and regulations governing payments, safeguard the integrity of the Platform, and reduce the risk of fraud, money laundering, terrorist financing, and the violation of trade sanctions or other applicable law. Information that Gathermark may request, or seek to confirm, may include your full legal name, mailing address, phone number, date of birth, and a form of government-issued identification. Gathermark reserves the right to require Sellers to submit an application for review and approval by Gathermark before accessing the Services.

(b) Community Fees

Gathermark shall have the right to charge to Buyer a fee equal to five percent (5%) of the total transaction value (exclusive of Sales Tax that Gathermark may charge) of purchases made by Buyer from a Seller that are processed through the Services as a fee for access to the Platform and Services (the "Community Fee" and, together with any other fees charged to Registered Users, the "Fees"). The Community Fee will be collected by the Payment Processor at the time of checkout, in addition to any Sales Tax or other fees that may be required by the Payment Processor. We may change our Fees from time to time by posting the changes on the Platform. Any new Fee(s) will apply to purchases on the Platform after the changes are posted to the Platform.

(c) Buyer Payments

Buyers contract directly with Sellers for the purchase of items on the Platform. Buyer is obligated and agrees to make payment upon purchase of an item on the Platform, including for any applicable shipping fee, taxes, applicable third-party fees, and additional fees listed. Buyer is responsible for all charges incurred under Buyer's Account, whether made by Buyer or another person using Buyer's Account. Gathermark is not a party to any such sales. Gathermark facilitates these sales through hosting the Platform and by providing a method to facilitate payment for the purchase of items as described below. All payments must be made through the Platform. Gathermark's Payment Processor (defined below) will charge the authorized payment method Buyer specifies at the time of purchase or as otherwise specified by Buyer in Buyer's Account. Buyer may make payment for a purchase through the Platform via then-currently accepted payment methods (e.g., ACH, debit card, credit card, PayPal, etc.), which are subject to change from time to time in Gathermark's and Payment Processor's sole discretion. You understand and agree that Gathermark itself does not process the transmission of funds and thus it is not a separate and discrete service that Gathermark provides in addition to the Platform. You further agree to provide accurate and complete information in order for Gathermark or Payment Processor to receive, process, and disburse payments made through the Platform.

(d) Payment Processing Services

All payments for purchases made by the Buyer are processed by Gathermark and its third-party payment services providers ("Payment Processors") on behalf of Seller to facilitate the settlement of proceeds to the Seller, less any amounts owed to Gathermark. Gathermark uses PayPal, Inc. and its affiliates as its Payment Processor for payment services (e.g., card acceptance, Seller settlement, and related services). Gathermark may replace any of its Payment Processors without notice to Seller or Buyer. By making use of some or all of the payment services on the Platform, you agree to be bound by Gathermark's policies and the Payment Processor's policies, user agreements, terms and conditions, including without limitation PayPal's user agreement available at PAYPAL USER AGREEMENT, its acceptable use policy available at Acceptable Use Policy, and its privacy policy available at PayPal Privacy Statement (collectively, the "Payment Processor Terms"). Buyer hereby consents and authorizes Gathermark to share any information and payment instructions provided to Gathermark with the applicable Seller and the Payment Processor(s) to the extent required to provide the payment services to Buyer and complete the applicable transactions. The Payment Processor may also be contacted directly for payment support. Gathermark reserves the right to change Payment Processors at any time, and will notify Sellers in the event of such a change.

(e) Appointment of Gathermark as Limited Payments Agent

To the extent applicable, Seller hereby appoints Gathermark as its limited payments agent for the sole purpose of receiving, holding, and settling payments to Seller for purchases made through the Platform. Gathermark, through its Payment Processor, will settle payments that are actually or constructively received by Gathermark to Seller, less any amounts owed to Gathermark, including fees and other obligations, as set forth in this Agreement. Seller agrees that a payment actually or constructively received by Gathermark, on behalf of Seller, satisfies the Buyer's obligation to make payment to Seller for Buyer's purchase through the Platform, regardless of whether Gathermark or the Payment Processor actually settles such payment to Seller. If Gathermark does not settle any such payments as described in this Agreement to Seller, Seller will have recourse only against Gathermark (or the Payment Processor, as applicable) and not the Buyer, as payment is deemed made by Buyer to Seller upon constructive or actual receipt of funds by Gathermark. In accepting this appointment as the limited payments agent of Seller, Seller agrees that Gathermark assumes no liability for any acts or omissions of Seller, and Seller understands that the obligation of Gathermark or its Payment Processor to settle funds to Seller is subject to and conditional upon the Buyer's actual payment and the terms of this Agreement.

(f) Disbursement to Seller

Gathermark will disburse funds through the Payment Processor to Seller to the Account associated with the payout information designated by the Seller following the applicable transaction. Following the transfer, payment will temporarily be reflected as "on hold" and will be released either when the Buyer confirms receipt of the item or two (2) days after the confirmed delivery date, whichever comes first. Funds may be released earlier if the seller has a track record of successful sales. Initial payment amounts may be inclusive of the Community Fee paid by the Buyer. This fee, along with any applicable charges from the Payment Processor, will be deducted from the final amount disbursed to the Seller. If payment is made to Seller in error, or if Seller receives funds that Seller is not otherwise entitled to receive at the time of disbursement, Gathermark has the right to recoup such amounts from the Seller, including without limitation by initiating a debit or charge to any account (including any credit card) provided by Seller in connection with the Services. Gathermark may also offset against funds pending settlement to Seller any sums due, or reasonably likely to become due, to Gathermark pursuant to this Agreement. In some cases, settlement of the payment processing proceeds could be temporarily delayed by an issue at Gathermark, the Payment Processor, or Buyer's or Seller's designated financial institution. Gathermark is not obligated to refund any Fees or reimburse any expenses due to delayed settlements. In addition, Seller's designated financial institution's settlement and account crediting procedures may at times cause delays in the crediting of funds to Seller's linked bank account and Gathermark does not have control over these delays.

(g) Refunds

Gathermark has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Gathermark or a Seller, in each case in Gathermark's sole discretion. Gathermark reserves the right to, and Sellers expressly acknowledge and agree that Gathermark may, recoup the amount refunded by offsetting it against any amount pending settlement to Seller.

(h) Chargebacks and Holds

In the event that a Buyer submits a chargeback request to its bank or financial institution in connection with a purchase from Seller, Gathermark will use commercially reasonable efforts to promptly inform Seller of the chargeback request. Seller agrees to provide evidence that the items involved in the request were shipped and delivered (e.g., tracking information of the shipping carrier), and that such item(s) were as described in the original listing, as well as any additional information Gathermark may request, within three (3) days of being informed by Gathermark of the chargeback. If a chargeback request is submitted by a Buyer before amounts are settled to Seller as described in this Section, Seller agrees that Gathermark may hold the settlement until the chargeback dispute is determined by the Buyer's card issuer or other payment processor (including the Payment Processor), and if the chargeback dispute is warranted, Gathermark will not settle any such funds for the transaction at issue to the Seller. Seller also agrees that Gathermark reserves the right to manage the risks associated with providing the Platform by placing restrictions on the settlement of funds to Seller when Gathermark deems it is necessary at its sole discretion, including as necessary to comply with law or mitigate fraud or abuse of the Services. For example, a hold may be placed if Gathermark has reason to believe there is an increased risk associated with a certain Platform transaction, such as if a Buyer files a dispute or requests a return, or if you are a new Seller or there have been prior complaints or disputes relating to the Seller's transactions. Further, Gathermark may temporarily withhold all or any portion of funds pending settlement to Seller if Gathermark, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness Seller may have incurred with Gathermark or any Buyer. For the avoidance of doubt, Gathermark will withhold all amounts payable to Seller until the sooner of (i) the date on which such amounts meet or exceed one hundred U.S. Dollars ($100), and (ii) the effective date of termination of this Agreement by or with respect to Seller. If Seller experiences a refund or chargeback rate in excess of two percent (2%), Seller agrees that Gathermark may hold in reserve an amount equal to fifty percent (50%) of Seller's current funds pending settlement for 90 days on a rolling basis to offset the potential cost of future refunds or chargebacks. If Seller experiences a refund or chargeback rate in excess of five percent (5%), Seller's Account may be suspended, terminated, or otherwise subject to additional conditions or fees.

(i) Taxes

(i) Sales taxes

The amounts paid under this Agreement do not include any Sales Tax that may be due in connection with any Services provided under this Agreement. If Gathermark determines it has a legal obligation to collect Sales Tax from a user in connection with this Agreement, Gathermark shall collect such Sales Tax in addition to the amounts required under this Agreement. If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Gathermark, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Gathermark for any liability or expense Gathermark may incur in connection with such Sales Taxes. Upon Gathermark's request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, "Sales Tax" shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

(ii) Other taxes

Payment of any applicable Taxes (as defined below), if any, due to taxing authorities arising from, or in connection with, your receipt of any Program Incentives (as defined below) are your sole responsibility. Gathermark and/or Paypal may automatically deduct or withhold any Taxes that they may be legally obligated to deduct or withhold from any amounts payable to you, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement of the amounts payable under these Program Terms. As used above, "Taxes" means all federal, state and local taxes, including any income, stamp, sales, use, value-added or other taxes, duties, charges, fees, deductions or withholdings.

(j) Revenue Share Program

Our revenue sharing program allows top performing Sellers to share in up to an aggregate of 10% of Gathermark's total revenue earned in connection with sales made through the Platform (the "Revenue Sharing Program").

(i) Eligibility

To participate in the Revenue Sharing Program, you must have an active seller account with a valid and unique linked Paypal account. By accepting these Program Terms, you expressly authorize Gathermark to access data about your Paypal connected account activity and transactions and to conduct other activities in connection with the processing and monitoring of revenue share payments under these Program Terms.

(ii) General Conditions and Restrictions

(A) Participation in the Revenue Sharing Program is subject to selling at least $100.00 USD per calendar quarter if you are a Community Founder in your first year, and $1,000.00 USD for remaining sellers. Achieving this threshold does not guarantee a payout. We reserve the right to reject participants at our sole discretion, including for business, financial, or legal reasons. If you are found to artificially inflate or manipulate the Platform to alter your performance metrics, you will forfeit any amount due to you and you will be terminated from the Program. If at any point Gathermark finds your performance metrics to be manipulated, including, for example, using bots or other automated means to artificially inflate performance metrics, Gathermark reserves the right to adjust any future payments, or to suspend payment.

(B) Your revenue share is not transferable across different Accounts and will be calculated on an individual Account basis.

(iii) Payments

(A) Payments will be made to you in connection with your participation in the Revenue Sharing Program ("RSP Payments") measured on a quarterly basis. Revenue share allocation must reach $20.00 USD ("Minimum Payment Threshold") before being eligible for payment. The total amount of RSP Payments due during the applicable Revenue Period will be calculated based primarily on the number of sales, aggregate amount of sales, quality of items sold, and level of engagement on the platform. Gathermark will exercise discretion in determining the exact formula, and it may vary from quarter to quarter. Payments will be made from your Account and will be paid net of any payment provider processing fees.

(B) Within thirty (30) days of the end of the respective Revenue Period, Gathermark will pay you, through Paypal, the RSP Payment due to you for the preceding Revenue Period, in accordance with the Paypal information provided by you. You must have a valid Paypal account to receive RSP payments and you are solely responsible for keeping such information up to date.

(C) Notwithstanding the foregoing, Gathermark reserves the right to issue payouts to you at any cadence in its sole discretion, including for business, financial, or legal reasons. Gathermark reserves the right at any time to modify how our payment calculation is structured, including, for example, adding or removing revenue types, for any reason, including business, financial, or legal reasons.

4. Seller Terms

When listing an item, you agree to comply with our rules for listing and that:

1. (a) You are responsible for the accuracy, legality, and content of the listing and item offered. Without limiting the foregoing, you are responsible for ensuring that your listings and items comply with the Payment Processor Terms at all times.
2. (b) You are responsible for including with each listing or otherwise on your storefront a detailed policy with respect to your process for accepting returns and issuing refunds, as applicable (your "Refund and Return Policy"). You represent and warrant that you will comply with your Refund and Return Policy as listed at the time any applicable item is offered for sale or purchased by a Buyer.
3. (c) You are responsible for ensuring that your use of the Platform and sale of items complies with applicable law, including without limitation the FTC's Mail, Internet, or Telephone Order Merchandise Rule (16 CFR Part 435). Without limiting the foregoing, you agree to ship all items purchased by a Buyer through the platform within seven (7) calendar days of the order date.
4. (d) You are responsible for the authenticity of the item and that the items offered have not been reproduced, substituted, altered or otherwise knowingly mismarked, misidentified or misrepresented to be an authentic item from the original manufacture.
5. (e) Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances).
6. (f) We strive to create a marketplace where Buyers can find what they are looking for. Therefore, the appearance or placement of listing in search and browse results will depend on a variety of factors, including, but not limited to: (i) Buyer's location, search query, browsing sites, and history; (ii) a listing's location, listing format, price and shipping cost, Terms of Use, end time, history, and relevance to the user query; (iii) Seller's history, Seller rating and feedback; and (iv) Number of listings matching the Buyer's query. To drive a positive experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the Buyer.

5. Buyer Terms

When buying an item or posting a listing to request an item, you agree to the rules for Buyers and that:

1. (a) You are responsible for the accuracy, legality, and content of the listing and item requested. Without limiting the foregoing, you are responsible for ensuring that your listings and items comply with the Payment Processor Terms at all times.
2. (b) Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances).
3. (c) You are responsible for reading the full item listing for any item you plan to purchase, including any applicable Refund and Return Policy, before making a bid or commitment to buy.
4. (d) In the event of a dispute between you and any Seller with respect to any items purchased or received by you, you will initiate such dispute within three (3) days of the delivery of such item(s) to the address provided by you (or, if no item is delivered, promptly upon discovery of the issue(s) giving rise to the dispute).
5. (e) You enter into a legally binding contract to purchase an item when you commit to buy an item.
6. (f) We do not transfer legal ownership of items from the Seller to the Buyer.
7. (g) Uniform Commercial Code §2-401(2) applies to the transfer of ownership between the Buyer and the Seller unless the Buyer and the Seller agree otherwise.

1. Interactions with Other Users

You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, including any purchases or sales made by you in connection with the Platform; provided, however, that Gathermark reserves the right, but has no obligation, to intercede in such disputes. You agree that Gathermark will not be responsible for any liability incurred as the result of such interactions, including any purchases or sales made by you through the Platform. The Services may contain User Content provided by other Registered Users. Gathermark is not responsible for and does not control User Content. Gathermark does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.

2. No Solicitation or Subverting the Platform

The Platform may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Registered Users for employment, contracting, or any other purpose not related to the Services facilitated through the Services. You may not use the Platform to collect usernames and/or email addresses of Registered Users by electronic or other means without the express prior written consent of Gathermark. It is a material breach of this Agreement to arrange for the sale of listed items from, or the payment of fees to, Sellers outside the context of the Platform for the purposes of circumventing the obligation to pay the Gathermark's fee for items purchased through the Platform.

2. Use of the Services

The Services, and the information and content available on the Services are protected by copyright and other intellectual property rights laws throughout the world. Unless otherwise specified by Gathermark in a separate license, your right to use any and all of the Services is subject to the Agreement.

3. Registration

1. Registering Your Account

In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a "Registered User" is a user who has registered an account with us on the Platform ("Account").

2. Registration Data

In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify Gathermark immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Gathermark has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Gathermark has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Gathermark reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use the Services if you have been previously removed by Gathermark, or if you have been previously banned from any of the Services.

3. Your Account

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Gathermark.

4. Necessary Equipment and Software

You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.

4. Responsibility for Content

1. Types of Content

You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, "Content"), is the sole responsibility of the party from whom such Content originated. This means that you, and not Gathermark, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through the Services ("Your Content"), and that you and other Registered Users of the Services, and not Gathermark, are similarly responsible for all Content that you and they Make Available through the Services ("User Content").

2. Storage

Unless expressly agreed to by Gathermark in writing elsewhere, Gathermark has no obligation to store any of Your Content that you Make Available on the Services. Gathermark has no responsibility or liability for the timeliness, deletion, mis-delivery or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Gathermark retains the right to create reasonable limits on Gathermark's use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Platform and as otherwise determined by Gathermark in its sole discretion.

5. Ownership

1. Ownership of the Services

Except with respect to Your Content and User Content, you agree that Gathermark and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, dialogue, concepts, artwork, methods of operation, moral rights, documentation, and Gathermark software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.

2. Trademarks

"Gathermark" and all related graphics, logos, service marks and trade names used on or in connection with the Services or in connection with the Services are the trademarks of Gathermark and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

3. Your Content

Gathermark does not claim ownership of Your Content. However, when you as a Registered User post or publish or otherwise input Your Content on or in the Services (including any artificial intelligence powered tools made available therein ("AI Tools")), you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

4. License to Your Content

Subject to any applicable Account settings that you select, you grant Gathermark a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating, providing, and improving the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Gathermark, are responsible for all of Your Content that you Make Available on or in the Services.

5. AI Tools

(a) Our AI Tools enable you to input Your Content to generate listings or descriptions of items or such other new Content based on Your Content ("Outputs") and may utilize certain publicly available artificial intelligence and deep learning platforms, algorithms, tools and models. You acknowledge and agree that Gathermark may share Your Content submitted to such AI Tools with the third-party provider(s) of any such AI Tools for this purpose and such providers may not be required to maintain the confidentiality of any of Your Content. You assume all risks associated with your use of such AI Tools. Gathermark will have no liability for the unavailability of any AI Tools, or any third party's decision to discontinue, suspend or terminate any AI Tools.

(b) You acknowledge that the Outputs are based on Your Content input through the AI Tools, and that Gathermark has no control over Your Content and accordingly any Outputs resulting therefrom. Accordingly, all Outputs are provided "as is" and with "all faults", and Gathermark makes no representations or warranties of any kind or nature with respect to Your Content or Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. You are solely responsible for your use of your Outputs created through the Services, and you assume all risks associated with your use of any Outputs, including any potential copyright infringement claims from third parties. You are solely responsible for reviewing any Outputs prior to use and exercising your own judgement as to suitability for use.

6. Feedback

You agree that submission of any ideas, suggestions, documents, and/or proposals to Gathermark ("Feedback") is at your own risk and that Gathermark has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Gathermark a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Gathermark's business.

6. User Conduct and Certain Restrictions

As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement, Payment Processor Terms, or applicable law. You shall not (and shall not permit any third party) to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Gathermark; (c) use any metatags or other "hidden text" using Gathermark's name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) remove or destroy any copyright notices or other proprietary markings contained on or in the Services.

Further, you shall not (and shall not permit any third party) to either (A) take any action or (B) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Gathermark's prior written consent; (v) impersonates any person or entity, including any employee or representative of Gathermark; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; (vii) manipulates the price of any listed item or interferes with a user profile or Seller listings; (viii) transfers your Account and username to another party without our consent; (ix) bypasses our robot exclusion hardware, interferes with the working of the Platform, or imposes an unreasonable or disproportionately large load on our infrastructure; (x) uses the Platform to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xi) takes any action that may undermine our feedback or ratings systems; (xii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your Account status; (xiii) contains nudity, violence, sexually explicit, or offensive subject matter, as determined by Gathermark in its sole discretion; or (xiv) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Services.

7. Investigations, Monitoring, Counterfeits & No Obligation to Pre-Screen Content

1. Monitoring; Content

Gathermark may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, including Your Content and User Content, at any time. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Gathermark pre-screens, refuses or removes any Content, you acknowledge that Gathermark will do so for Gathermark's benefit, not yours. Without limiting the foregoing, Gathermark reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Gathermark; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if Gathermark otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of the Agreement, Gathermark, may, at its sole discretion immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.

2. Counterfeits

Gathermark takes counterfeiting, fraud and market manipulation very seriously. If a Seller provides a counterfeit item or attempts to defraud any Buyer or Gathermark, Gathermark reserves the right (but not obligation) to do any or all of the following, in its sole discretion: (i) remove any or all of Seller's listings from the Services; (ii) cancel any or all of Seller's orders pending through the Services; (iii) withhold any payments due to Seller; (iv) place limits on Seller's buying and selling privileges; (v) charge Seller's payment method for costs, expenses and fees incurred by Gathermark as a result of Seller's action or inaction; (vi) have the item shipped back to the Seller at the Seller's cost (including any customs and duties amounts incurred by Gathermark); (vii) provide the counterfeit items to law enforcement (as well as any additional information regarding Seller or the transaction(s) at issue) or destroy the counterfeit items, and (viii) temporarily or permanently suspend Seller's Account. Seller hereby agrees that each of the foregoing remedies are reasonable and justified upon Gathermark discovery of counterfeit items or fraudulent actions, even if those items or actions were not known by the Seller at the time to be counterfeit or fraudulent (e.g., negligent fraud). Seller understands and agrees that if we provide the counterfeit item to law enforcement, Seller's communications and any property claim with respect to that item must be solely with that law enforcement agency and not with us. We may also use fraud protection measures, including algorithms and automated systems to monitor for fraud, which might result in cancellation of listings or sales or Account suspension.

3. Criminal Activity

If Gathermark believes that criminal activity has occurred, Gathermark reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including Your Content, in Gathermark's possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Gathermark, its Registered Users or the public, and all enforcement or other government officials, as Gathermark in its sole discretion believes to be necessary or appropriate.

8. Release

Gathermark expressly disclaims any liability that may arise between Registered Users of its Platform. The Platform is only a venue for connecting Buyers with Sellers. Unless otherwise specified herein, because Gathermark is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more Registered Users, you release Gathermark, its parents, subsidiaries, affiliates, officers, employees, investors, agents, payment processors, partners and licensors, but excluding any Registered Users (each a "Gathermark Party" and collectively, the "Gathermark Parties") from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Gathermark Party or for such party's fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform provided hereunder.

9. Indemnification

You agree to indemnify and hold the Gathermark Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your inability to use any Service; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) disputes with other users of the Services; or (f) your violation of any applicable laws, rules or regulations. Gathermark reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Gathermark in asserting any available defenses. This provision does not require you to indemnify any of the Gathermark Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.

10. Disclaimer of Warranties and Conditions

1. As Is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. GATHERMARK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PLATFORM. THIS SECTION 10 (DISCLAIMER OF WARRANTIES AND CONDITIONS) DOES NOT AFFECT IN ANY WAY ANY SELLER'S REFUND AND RETURN POLICY OR WARRANTY FOR GOODS PURCHASED ON THE PLATFORM.

(a) Gathermark Parties make no warranty, representation or condition that: (I) the Services will meet your requirements; (II) your use of the Services will be uninterrupted, timely, secure or error-free; or (III) the results or any goods that may be obtained from use of the Services will be accurate, reliable or authentic. We cannot guarantee continuous or secure access to the Platform, and operation of the Platform may be interfered with by numerous factors outside of our control.

(b) Any Content downloaded from or otherwise accessed through the Services is accessed at your own risk, and you shall be solely responsible for any damage to your property, including, but not limited to, your computer system and any device you use to access the Services, or any other loss that results from accessing such Content.

(c) The Services may be subject to delays, cancellations and other disruptions. Gathermark makes no warranty, representation or condition with respect to Services, including but not limited to, the quality, effectiveness, reputation and other characteristics of Services.

(d) No advice or information, whether oral or written, obtained from Gathermark or through the Services will create any warranty not expressly made herein.

(e) From time to time, Gathermark may offer new "beta" features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Gathermark's sole discretion. The provisions of this section apply with full force to such features or tools.

2. No Liability for Conduct of Other Registered Users or Third Parties

You acknowledge and agree that Gathermark Parties are not liable, and you agree not to seek to hold Gathermark Parties liable, for the conduct of other users including third parties, and that the risk of injury from such third parties rests entirely with you.

(a) Gathermark makes no warranty that the goods provided by third parties or other users will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Gathermark makes no warranty regarding the quality of any such goods, or the accuracy, timeliness, truthfulness, completeness or reliability of any User Content obtained through the Services.

(b) We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Registered Users' content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for item, or that Buyer or Seller will actually complete a transaction or return all items.

(c) We do not transfer legal ownership of items from the Seller to the Buyer. Uniform Commercial Code § 2-401(2) applies to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. Further, we cannot guarantee continuous or secure access to the Services and operation of the Services may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.

(d) As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Gathermark to monitor such materials and that you access these materials at your own risk.

11. Limitation of Liability

1. Disclaimer of Certain Damages

You understand and agree that, to the fullest extent provided by law, in no event shall Gathermark Parties be liable for any loss of profits, revenue or data, indirect, incidental, special, or consequential damages, or damages or costs due to loss of production or use, business interruption, or procurement of substitute goods or services, in each case whether or not Gathermark has been advised of the possibility of such damages, arising out of or in connection with the Agreement or any communications, interactions or meetings with other users of the Services, on any theory of liability, resulting from: (A) the use or inability to use the Services; (B) the cost of procurement of substitute goods or services resulting from any goods, data, information or services purchased or obtained; or messages received for transactions entered into through the Services; (C) unauthorized access to or alteration of your transmissions or data; (D) statements or conduct of any third-party on the Services; or (E) any other matter related to the Services, whether based on warranty, copyright, contract, tort (including negligence), product liability or any other legal theory. The foregoing limitation of liability shall not apply to liability of a Gathermark Party for (I) death or personal injury caused by a Gathermark Party's negligence; or for (II) any injury caused by a Gathermark Party's fraud or fraudulent misrepresentation.

2. Cap on Liability

To the fullest extent provided by law, Gathermark Parties will not be liable to you for more than the greater of (A) the total amount retained by Gathermark in the transaction or incident giving rise to such liability; or (B) $100. The foregoing cap on liability shall not apply to liability of a Gathermark Party for (I) death or personal injury caused by a Gathermark Party's negligence; or for (II) any injury caused by a Gathermark Party's fraud or fraudulent misrepresentation.

3. Exclusion of Damages

Certain jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.

4. Basis of the Bargain

The limitations of damages set forth above are fundamental elements of the basis of the bargain between Gathermark and you.

16. Procedure for Making Claims of Intellectual Property Right Infringement

It is Gathermark's policy to terminate membership privileges of any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to Gathermark by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes intellectual property rights infringement, please provide our designated intellectual property agent with the following information:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right
• A description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed
• A description of the location on the Service of the material that you claim is infringing
• Your address, telephone number, and email address
• A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner's behalf

Contact information for Gathermark's designated agent for notice of claims of infringement is as follows:

Office of the CEO
c/o Gathermark, Inc.
1111B S Governors Ave STE 34992
Dover, DE 19904

13. Term and Termination

1. Term

The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

2. Prior Use

Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and that the Agreement will remain in full force and effect while you use any the Services, unless earlier terminated in accordance with the Agreement.

3. No Subsequent Registration

If your registration(s) with, or ability to access, the Services or any other Gathermark community, is discontinued by Gathermark due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Gathermark community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Gathermark reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

14. Platform is US-Based

The Services can be accessed from countries around the world and may contain references to products, Services and Content that are not available in your country. These references do not imply that Gathermark intends to announce such products, Services or Content in your country. The Services are controlled and offered by Gathermark from its facilities in the United States of America. Gathermark makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

15. Arbitration Agreement

Please read the following arbitration agreement in this section ("Arbitration Agreement") carefully. It may significantly affect your legal rights, including your right to file a lawsuit in court.

1. Applicability of Arbitration Agreement

Subject to the terms of this Arbitration Agreement, you and Gathermark agree that any dispute, claim, disagreement arising out of or relating in any way to your access to or use of the Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each a "Dispute"), will be resolved by binding arbitration, rather than in court, except that (i) you and Gathermark may assert claims or seek relief in a small claims court if such claims qualify and remain in small claims court; and (ii) you and Gathermark may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

2. Waiver of Jury Trial

You and Gathermark hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and Gathermark are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the paragraph entitled "Applicability of Arbitration Agreement" above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.

3. Class Action Waiver

You and Gathermark agree that, except as specified in the paragraph entitled "Batch Arbitration" below, each of us may bring claims against the other only on an individual basis and not on a class, representative, or collective basis, and the parties hereby waive all rights to have any dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Only individual relief is available, and disputes of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user.

Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. To the extent permissible by law, there shall be no right or authority for any dispute to be arbitrated as a representative action or as a private attorney general action, including but not limited to claims brought pursuant to the Private Attorney General Act of 2004, Cal. Lab. Code § 2698, et seq. This means that you may not seek relief on behalf of any other parties in arbitration.

Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this paragraph, "Class Action Waiver" are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Gathermark agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the courts indicated in Section 21.11 below. All other Disputes shall be arbitrated or litigated in small claims court. This paragraph does not prevent you or Gathermark from participating in a class-wide settlement of claims.

4. Informal Dispute Resolution

You and Gathermark agree to try to resolve any Dispute informally before resorting to arbitration. You and Gathermark therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement ("Informal Dispute Resolution Conference").

If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference ("Notice"), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties.

Notice to Gathermark that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@gathermark.com or regular mail to our offices located at 1111B S Governors Ave STE 34992, Dover, DE 19904. Notice to you will be sent to the address or email address associated with your Account or to your publicly available address or email address if you do not have an Account with us.

The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

5. Arbitration Procedures

You and Gathermark agree that this Arbitration Agreement affects interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., applies. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Gathermark agree that either party shall have the right to finally resolve the Dispute through binding arbitration.

The arbitration will be conducted by JAMS. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other Disputes shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.

Any arbitration of a Dispute relating to your access to or use of the Platform or Services, any products sold or distributed through the Platform primarily for personal, family or household purposes shall also be subject to the allocation of arbitration costs and other requirements of the JAMS' policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Arbitration Rules. If there is a conflict between the JAMS rules and this Arbitration Agreement, this Arbitration Agreement shall control.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the "Request"). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

To initiate arbitration, you must send the Request to Office of the CEO, c/o Gathermark, Inc., 1111B S Governors Ave STE 34992, Dover, DE 19904. If we initiate arbitration, we will send the Request to the address or email address associated with your Account or to your publicly available address or email address if you do not have an Account with us.

The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Unless you and Gathermark otherwise agree, or the Batch Arbitration process discussed below is triggered, the arbitration will be conducted in the county where you reside.

6. Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Gathermark agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Gathermark by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award ("Batch Arbitration").

All parties agree that Requests are of a "substantially similar nature" if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator's fees shall be paid by Gathermark.

You and Gathermark agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

7. Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the paragraph entitled "Class Action Waiver," including any claim that that same paragraph is unenforceable, illegal, void or voidable, or that it has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the paragraph entitled "Batch Arbitration," all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.

The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

8. 30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to us at support@gathermark.com or 1111B S Governors Ave STE 34992, Dover, DE 19904 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. If the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the courts indicated in Section 21.11 below.

9. Invalidity, Expiration

Except as provided in the paragraph entitled "Class Action Waiver", if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Gathermark as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

10. Modification

Notwithstanding any provision in these Terms of Use to the contrary, we agree that if Gathermark makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Gathermark at 1111B S Governors Ave STE 34992, Dover, DE 19904, your continued use of the Platform and/or Services, including the acceptance of products and services offered on the Platform or Apps following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms of Use and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Platform, or these Terms of Use, the provisions of this Arbitration Agreement as of the date you first accepted the Terms of Use (or accepted any subsequent changes to these Terms of Use) remain in full force and effect. Gathermark will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

11. Venue

To the extent that the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the state or federal courts located in New York, NY (except for small claims court actions which may be brought in the county where you reside).

16. Third-Party Services

1. Third-Party Websites, Applications and Ads

The Services may contain links to third-party websites ("Third-Party Websites"), applications ("Third-Party Applications") and advertisements for third parties ("Third-Party Ads"). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Gathermark. Gathermark is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Gathermark provides these Third-Party Websites, Third-Party Applications or Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications or Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

17. General Provisions

1. Electronic Communications

The communications between you and Gathermark may take place via electronic means, whether you visit the Services or send Gathermark e-mails, or whether Gathermark posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Gathermark in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Gathermark provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. ("E-Sign").

2. Assignment

The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Gathermark's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Gathermark may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement.

3. Force Majeure

Gathermark shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

4. Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to the Services, please contact us at:

Office of the CEO
c/o Gathermark, Inc.
1111B S Governors Ave STE 34992
Dover, DE 19904

We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

5. Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Gathermark agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in State of New York.

6. Governing Law

The Terms and any action arising out of, in connection with, or related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

7. Choice of Language

It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.

8. Notice

Where Gathermark requires that you provide an e-mail address, you are responsible for providing Gathermark with your most current e-mail address. In the event that the last e-mail address you provided to Gathermark is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Gathermark's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Gathermark at the following address: 1111B S Governors Ave STE 34992, Dover, DE 19904. Such notice shall be deemed given when received by Gathermark by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

9. Waiver

Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10. Severability

If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

11. Export Control

You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Gathermark are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Gathermark products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

12. Agreement Updates

When changes are made, Gathermark will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Services, and we will also update the "Last Updated" date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Gathermark may require, you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.

13. Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

14. Entire Agreement

The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.