Terms and Conditions

Last Revised April 23, 2025

Welcome! We are Risetex, Inc., a Delaware corporation doing business as Marcella and Marcella NYC and Marcella New York (“us” or “Marcella”). This Terms of Use Agreement (these “Terms”) apply to all online services offered by us (“Services”), including the Marcella website located at marcellanyc.com (“Site”). Our mission is to support women and girls globally through our sales of designer clothing and accessories. We call our core principles the four pillars of “Design That Matters”: democratizing design, social impact, ethical production, and sustainability. To use our Site and the Services, you must be at least 13 years of age. Please read these Terms carefully and save a copy for your records. AN AGREEMENT TO ARBITRATE CLAIMS AND CERTAIN DISCLAIMERS OF WARRANTIES AND LIABILITY ARE ESSENTIAL PARTS OF THESE TERMS. IN BINDING ARBITRATION, YOU GIVE UP THE RIGHT TO GO TO COURT AND TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT BY A JUDGE OR JURY. 

Agreement to Terms

If you access, browse or use the Site without purchasing, your access is on condition that you agree to and do not violate these Terms. The Services are the property of Marcella. Marcella at any time may modify these Terms, but if Marcella alters these Terms in a way that materially diminishes users’ rights, Marcella will provide notice to registered users via email, at the most recently supplied working email address. Your continued use of the Marcella Services after notice of changes means you accept the changes. If you do not agree to these Terms or any change to them, you will (as your sole remedy) stop using the Marcella Services. If applicable law requires us to obtain your consent to the changes by other means, we will follow the applicable law. These Terms cannot be changed except as stated, and any attempt by you to modify these Terms unilaterally is void. Your personally identifiable information will be treated in accordance with our Privacy Policy.

International Users

Marcella operates this website from the United States and offers these Terms in accordance with U.S. law. If you are using the Marcella Services from another country, you are still bound by this Agreement to the full extent of applicable law, and you agree to arbitrate disputes with us as set out below. Customers who access and use the Site from outside the United States warrant that their usage will not violate applicable local laws or regulations. 

Coupons, Promotions and Pricing

All discount codes, coupons and similar promotional offers must be entered prior to payment. Misuse of such codes or coupons violates these Terms. We reserve the right to refuse, suspend, or revoke promotional offers at any time.

Exactness of Product Information

We have tried to accurately display all product information. Because colors are displayed differently on different devices, the actual product’s colors may vary from what you see on your monitor or mobile device. Additionally, the Site may contain typographical errors, inaccuracies, or omissions related to product descriptions, pricing, and/or availability. As a result, we do not guarantee the accuracy or completeness of any information on the Site. Marcella reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your order). Please contact us if you have been inconvenienced by any such error. 

Shipping and Returns

Marcella’s Shipping Policy and Returns Policy apply to all purchases, and are incorporated into these Terms by reference for purchasers of our products. Our Shipping Policy controls the cancelation of orders. After your order is placed, we cannot guarantee that the order can be canceled. For cancelations or changes, contact us.

Limits on Purchases – Personal Use Quantities

We do not authorize the purchase of commercial quantities of our merchandise using the Site, and may place limits on the number of any item available for purchase. For inquiries about purchases in quantity via our wholesale channel, contact us. We may restrict orders placed by or under the same customer account, credit card, or billing/shipping address. We may limit, cancel or prohibit orders that, in our judgment, appear to be placed in violation of this policy. We reserve the right to cease doing business with customers who violate this policy. 

Payments

When you make a purchase through our Services, you authorize our payment processor Shopify to charge your payment method for any such purchases (plus any applicable taxes and other charges) that may be accrued by or in connection with your purchase. You are responsible for the timely payment of all fees and for providing a valid method of payment. All prices, fees and applicable taxes and other charges are payable in your selected currency at checkout. For purchases, you must provide accurate billing information including your name, billing address, and payment source. You may need to provide additional information to verify your identity before completing the transaction. If you use a third-party payment processor, that processor’s terms and conditions apply to your payment transaction. A list of Shopify’s third-party payment service providers is available at shopify.com/payment-gateways.  

License to Use

You may use the Site and Services for their intended purposes as long as you comply with these Terms. You may make private non-commercial use of the Services, but you may not charge a fee to use the Site. 

Prohibited Conduct

You may not use the Site to transmit any content or engage in any conduct which:

• Is unlawful;

• Infringes any intellectual property or proprietary right owned by Marcella or a third party;

• Violates these Terms;

• Contains material that is false, intentionally misleading, or defamatory;

• Harasses or threatens others, including by the unconsented disclosure of personal data; 

• Involves the use or distribution of malware, meaning viruses, trojan horses, trap doors, easter eggs, worms, time bombs, packet bombs, ransomware, cancelbots and any other computer programs or routines that damage, detrimentally interfere with, surreptitiously intercept or expropriate any system data or user information;

• Involves SPAM, or using the Site to send unsolicited communications about any goods or services;

• Involves extracting data from the Site for any improper purpose, including but limited to, marketing to our specialists using any automated means such as bots, harvesters, scrapers, or spiders, except by permission of Marcella;

• Involves creating more than one account for the same person;

• Involves impersonating any person or entity, or misrepresent your affiliation with any person or entity;

• Involves publishing or sharing your login credential or those of another user;

• Involves helping or enabling others to violate these Terms;

• Includes denial of service attacks or other acts that unduly burden the infrastructure of our Site;

• Involves republishing or presenting any part of any of the Site in a “frame” or inline link on any other site; 

• Involves any attempt to copy, decode, reverse-engineer, decompile or disassemble any software used by Marcella to provide the Site; or

• Is otherwise in violation of any applicable law. 

We may withdraw permission to use the Marcella Site or Services at any time, for any reason, including but not limited to your violation of these Terms. If your access is terminated, you may not open a new Marcella account without our express permission.  In addition to terminating your access, Marcella reserves all legal rights and remedies in response to a violation of these Terms.

Your Personally Identifiable Information

Your personally identifiable information will be treated in accordance with our Privacy Policy.

User Accounts and Passwords 

If you are at least 18 years of age, you may set up a user account to access certain features of the Site, such as viewing your previous orders, participating in the Glow Club rewards program, and receiving personalized suggestions ("Account"). You will maintain the security and confidentiality of your Account including its login credentials, and notify Marcella if you believe your Account or login credentials have been compromised. You are solely responsible for all usage or activity on the Site under your Account, including misuse of the Site by any other person who uses your Account, with or without your authorization. Marcella will not be liable for losses incurred as a result of an unauthorized use of a password or account. 

Referral Program

When you refer a friend to Marcella by providing their email address, we will send them an offer for a discount off a qualifying purchase. If the referred person uses the offer and completes a qualifying purchase, we will also send you a coupon for a discount off a qualifying purchase. Their information will be treated according to our Privacy Policy. These discount offers may not be used together with Glow Club Rewards Points or other discounts. 

Glow Club Rewards Program

Marcella Services include a rewards program (the “Glow Club”) provided by Yotpo. Creating an Account opts you in to the Glow Club. Glow Club rewards points (“Glow Points”) are void if registration or licensure of the Glow Club as a promotional giveaway would be required in your jurisdiction under applicable law. To earn Glow Points, you must be a current resident of the United States or its territories, and a natural person at least 18 years of age (or the age of majority in your jurisdiction of residence, whichever is older). Glow Points may not be assigned, transferred, or shared. 

Glow Club Rewards Points:

*points earned on purchases will be canceled if the purchased item is returned

You may redeem your Glow Points on purchases of at least one hundred dollars ($100), after any discount or markdown (“Qualifying Purchases”). The maximum number of Glow Points you may use for any Qualifying Purchase is seven hundred fifty (750) points for a total discount of twenty-five (25) dollars. 

Tier statuses are computed by aggregating all of your purchases on an twelve-month rolling basis. Spark Tier is available to any individual that creates an Account. The Shine Tier requires a purchase amount of at least four hundred dollars ($400) over the preceding 12-month period. The Sun Tier requires a purchase amount of at least nine hundred dollars ($900) over the preceding 12-month period. 

Promotional Giveaways

If you participate in any of our promotional giveaways at marcellanyc.com, then the following rules apply. Promotional giveaways are void where prohibited by applicable law. 

Eligibility & Entry:  No purchase is necessary. Prizes offered by Risetex, Inc. (Marcella). Place an order during the specified time period and you will be automatically entered to win a Marcella outfit. One entry per person. To enter without placing a purchase through our site, email us during the entry period with a request to enter including your name, email address, postal address, and telephone number. Any US resident over the age of 18 is eligible. 

Duration:  Entries will be created during a limited period as stated in connection with the specific promotion.  

 

Prize & Chance of Winning:  One (1) winner will receive the prize as described in the specific promotion, typically consisting of Marcella apparel. No substitution, transfer, or cash equivalent of prize is permitted. Winner will be responsible for paying any income taxes associated with the prize. Winner will be selected at random. Employees and agents of Marcella are not eligible to win. The chance of winning will depend on the number of valid entries received. Limit one entry per person. If the selected winner does not timely respond to notice and claim the prize, another winner will be selected as needed until the prize has been awarded. 

Release as Condition of Participation: Entrants to win release, discharge and hold harmless us, our affiliates and their respective officers, directors, employees, agents and representatives (“Released Parties”) from and against any and all losses resulting from entrant’s participation in the giveaway, or the acceptance, possession, use or misuse of the prize (including travel).  Released Parties are not responsible for malicious interference with the awards process by unauthorized parties, or for late, lost, damaged, inaccurate, misdirected, incomplete, illegible, undeliverable, destroyed or stolen entries. Released Parties are not responsible for entries that are processed, reported, or transmitted late or incorrectly or are lost or misdirected for any reason including computer, telephone, paper transfer, human or other error. Marcella may disqualify anyone from participating in the giveaway or winning the prize if, in its sole discretion, it determines that such person is attempting or has attempted to undermine the legitimate operation of the giveaway by cheating, deception or other unfair practices. Marcella reserves the right to cancel, modify, terminate or suspend the giveaway should causes beyond the control of Marcella corrupt the administration of the giveaway.

Marcella’s Intellectual Property

The Site, Services and related content are protected by copyright, trademark, trade dress and other intellectual property rights. You may only use the Site, Services and the related intellectual property consistently with our rights.  The Marcella logos, and other trademarks, service marks, labels, product names and service names (“Marks”) are owned or licensed by Marcella. MARCELLA claims trademark protection for all of its Marks. Marcella owns, has applied, or may apply for federal trademark registration of the following marks: 

MARCELLA ®

MARCELLAMODA ®

DESIGN THAT MATTERS ®

MINIMALISM WITH AN EDGE ®

MARCELLA NEW YORK

MARCELLA NYC

You may not copy, display or use the Marks without our prior written permission, or as permitted by law. You will not use the Marks in any way likely to cause confusion, or as an indicator of source to promote any product or service not authorized or sponsored by Marcella. The Service, and all the content including without limitation look-and-feel, text, graphics, multimedia content, images, illustrations, audio and video clips, content in html and other markup languages, and all associated scripts are property of or licensed to Marcella. Reproduction of the entire Site is strictly prohibited. Any content copied, downloaded or printed from the Site must retain all copyright, trademark and other notices of proprietary rights. The device of a registered user, who is using the Marcella Services as intended, may store and display certain content from the Marcella Services. You will not create a derivative work from, distribute, publicly perform, or publicly display any of the content from the Site. 

Terminating Your Account

You may terminate your use of the Marcella Services and close your Account at any time.  These Terms will cease to apply, but your responsibility for your past use of the Marcella Services under these Terms will survive.

Required Notices

You agree to receive exclusively via email, to the address last provided by you to Marcella, any notice that we are required to send to you.  You will keep your contact information current and promptly notify Marcella if you discover any unauthorized use of your information.

Our Compliance With U.S. Copyright Law (DMCA)

If you believe your copyright in a work has been infringed on our Site, please contact our agent for notice of claims of copyright violation at support@marcellanyc.com.

You must provide our agent with all of the following information in writing:

• a description of the copyrighted work you believe has been infringed;

• information sufficient to identify the location of the allegedly infringing material on the Site;

• your address, telephone number, and email address;

• a statement to the effect that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

• a declaration, under penalty of perjury, that the information you have provided is accurate and that you are the owner of the copyright involved or you are authorized to act on behalf of that owner; and

• your physical or electronic signature. Upon receiving your complaint, we may remove content that you believe infringes your copyright. In addition, we may terminate the account of the registered user responsible for posting or transmitting the infringing material.

Third Party Content and Services

Marcella is not responsible for your use of third-party services. Third-party services not operated by Marcella are not under the control of Marcella, and Marcella is not responsible for the accuracy or content of such services. Marcella makes no representation concerning these sites or services to you except as stated in our Privacy Policy. Your use of third-party services is at your own risk.

User Generated Content

The Marcella Services allow you to upload user-generated content (such as product reviews) and the following applies to all such Content (as defined) generated by you on our Site or Services. 

“Content” means anything subject to copyright protection (a work of authorship), such as a photo, video, song or text comment and all other forms of data or communication. Content includes (i) works you create and own that you submit or transmit through the Site (“Your Content”); (ii) works created and owned by someone else that you submit or transmit through the Site (“Third Party Content”); and (iii) Content posted or uploaded to your social media accounts and tagged with #MARCELLANYC or any other Marcella-promoted tag (collectively “User Content”). “Tag” means and includes all tags, hashtags and similar unique phrases or symbols (however called) that are created by and associated with Marcella on any social media platform.

You retain ownership rights to your Content and, for Third Party Content, any ownership rights to which you are entitled by law. We do not claim any ownership rights to any Content posted to or transmitted by you through the Marcella Services. You alone are responsible for your Content. You assume all risks associated with your Content, including anyone’s reliance on its quality or accuracy, and your choice to disclose personal information on the Site. We discourage you from disclosing in your Content your direct contact information. You represent that you own or have the necessary permissions to use and authorize the use of the Content you post.

For your Content, you grant to Marcella a perpetual, royalty-free, irrevocable right and license to display, perform, reproduce, adapt, and distribute such Content, and to incorporate such Content into any form, medium, or technology now known or later developed. Other users may copy and then alter your Content. For this reason, you waive any claims against Marcella, and hold Marcella harmless, for any unauthorized alteration of your Content, including without limitation claims arising under the laws of countries other than the United States for derogation of moral rights or similar post-publication rights of authorial control.

For Third-Party Content, you grant to Marcella, and you represent and warrant that you have the right to grant to Marcella, or that the owner of the rights has granted to Marcella, a license either on the same terms as set out here for your own Content, or on terms expressly permitted by the owner of the Third Party Content and conferring similar freedom to use on Marcella.

Representations and Indemnification

You represent that all the user and account information you provide is true, current, and complete, and warrant that your Original Content will not violate these Terms. You agree to defend, indemnify and hold harmless Marcella and its officers, directors, employees, and affiliates from and against any and all claims, damages, costs, and expenses (collectively “Claims”) arising from or related in any way to your misuse of the Marcella Services, or your breach of your representations or warranties, or your breach of any material provision of these Terms. 

Disclaimer of Warranties

Marcella strives to provide the Marcella Services in accordance with the highest industry standards for accuracy, reliability, and security. However, due to the nature of online services:

• Your use of the Marcella Services is at your sole risk. The Marcella Services are provided on an “as is” and “as available” basis. Marcella expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to implied warranties of fitness for a particular purpose, merchantability, non-infringement, quality, performance, non-interference with information, and accuracy of informational content. There is no warranty that information provided by Marcella will fulfill any of your particular purposes or needs.

• Marcella will not be responsible for any damages or losses resulting from your reliance on any lessons or advice gained from the Marcella Services. You agree to hold Marcella harmless from any loss, harm, injury, or damage resulting from or arising out of your use of the Marcella Services.

• Marcella does not guarantee or warrant that your use of the Service will be uninterrupted, timely, secure, or error-free; that the results that may be obtained from the use of the Service will be accurate or reliable; that any errors in the technology will be corrected; or that the quality of any products, services, information, or other material purchased or obtained by you through or at the suggestion of the Service will meet your expectations.

• No information, whether oral or written, obtained by you from Marcella or through a Marcella Service will create any warranty not expressly stated in these Terms.

Limitations and Exclusions of Liability

To the extent permitted by applicable law, Marcella will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, or the cost of getting substitute goods or services, or the use, inability to use, unauthorized use, performance or non-performance of any third-party account (even if Marcella has been advised of the possibility of such damages), whether based on contract, tort or any other legal theory, resulting from your use of or inability to use the Site. If you are dissatisfied with the Marcella Site, or any of the information contained therein, or if you refuse to abide by these Terms, your sole and exclusive remedy is to discontinue your use.  If you are a California resident, you waive the provisions of Section 1542 of the California Civil Code, which states as follows: ”A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, and any other municipal, local, state, or federal law, common or statutory, which may have arisen, or which may arise, prior to, or at the time of, the execution of this Agreement.”

Disputes and Arbitration

Binding Individual Arbitration 

Any Dispute arising out of or relating to your purchases from us or this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through binding individual arbitration as set forth in this Section, except (a) either you or Marcella may initiate a Dispute that is within the jurisdictional limits in, or take such a Dispute to, small claims court, and (b) as stated below. 

“Dispute” means any claim or controversy arising out of or relating to this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and also includes: (a) any related Dispute that arose before the existence of this Agreement; (b) any related Dispute that is currently the subject of a purported class action litigation in which you are not a member of a certified class; and (c) any related Dispute that may arise after termination of this Agreement and our relationship with you. The term “Dispute” excludes disagreements or claims concerning patents, copyrights, trademarks, trade secrets, or other intellectual property, and claims of piracy or unauthorized use of intellectual property.

The arbitrator will decide all issues except the following (which are for a court of competent jurisdiction): (a) issues expressly reserved for the court by this Agreement; (b) issues that relate to the scope, validity, and enforceability of this arbitration agreement, the class action waiver, or any of the provisions of this Section; and (c) issues that relate to the arbitrability of any Dispute. Such court will also have the limited and non-exclusive authority to decide if a Dispute is time-barred. This Agreement does not prevent you from bringing a Dispute to the attention of any government agency. This Agreement to arbitrate concerns transactions in interstate commerce and will be interpreted and enforced in accordance with the Federal Arbitration Act and U.S. federal arbitration law, and not state arbitration law.

Mandatory Informal Dispute Resolution Process.

A good faith effort to informally resolve any Dispute is required. The party initiating the Dispute must send a written notice to the other party that describes the Dispute, with sufficient information to enable the other party to identify any transactions and accounts at issue, and a description of the Dispute, addressing the nature and basis of the claims and of the relief sought. The party initiating the Dispute will send this notice, including all of the information referenced above, to the other party in writing. 

For a period of thirty (30) days from receipt of a completed notice, the parties will negotiate in good faith in an effort to informally resolve the Dispute. If the Dispute is not resolved within thirty (30) days after receipt of notice, you or Marcella may commence formal resolution of the Dispute. Completion of the informal Dispute resolution process is a condition precedent to you or Marcella commencing any formal Dispute resolution proceeding in arbitration or small claims court, and any applicable limitations periods will be tolled from the date of receipt of notice through the conclusion of the process. A court of competent jurisdiction will have the authority to enforce this condition precedent to arbitration. Nothing in this section limits the right of a party to raise the sufficiency of a notice or compliance with this process or to seek damages for non-compliance with this process in arbitration. 

Arbitration Procedures

The arbitration will be administered by the American Arbitration Association ("AAA") and conducted in accordance with the applicable AAA rules ("AAA Rules") as modified by this arbitration agreement. If the AAA is unavailable or unwilling to administer arbitrations consistent with this arbitration agreement, another arbitration provider will be selected by the parties that will administer arbitrations consistent with this arbitration agreement. If the parties cannot agree on a provider, they will petition a court of competent jurisdiction to appoint an arbitration provider that will do so.

Initiating Arbitration

The party seeking to initiate arbitration will provide the other party with the demand for arbitration as specified in the AAA Rules and this arbitration agreement. The party initiating arbitration will personally certify to the AAA that they are a party to this arbitration provision, and provide a copy or link to it. To begin an arbitration proceeding, you or Marcella must send a personally signed demand for arbitration that describes (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for such relief. The demand for arbitration must be personally signed by the party initiating arbitration (and their counsel, if represented). By signing the demand for arbitration, a party (and their counsel, if represented) certifies that they have complied with all of the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to award any relief or impose any sanctions available under the Federal Rule of Civil Procedure, or applicable federal or state law, against all represented parties and counsel. The party initiating arbitration must follow the appropriate procedures with the AAA to commence the arbitration, which are available at www.adr.org or by contacting the AAA.

Conduct of Arbitration 

The arbitration will be heard by a single, neutral arbitrator. The party initiating arbitration may choose to have the arbitration conducted by phone, video-conference, or in-person hearing, or solely through written submissions, except that the respondent in any arbitration where the claimant is seeking $10,000 or more, or injunctive relief, may elect an in-person hearing. You and a Marcella representative will personally appear at any hearing (with counsel, if represented). Any in-person hearing will be held in the county or parish in which you reside or at another mutually convenient location. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief, but only in favor of the individual party seeking relief, and only to the extent necessary to provide relief warranted by that party's individual claim. To the fullest extent permitted by applicable law, you and we agree that each may bring claims against the other only in an individual capacity and not as a member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding.

The arbitrator is empowered to follow and enforce this Agreement. If, after exhaustion of all appeals, any of the prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are held unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such a claim or request for relief will be decided by a court of competent jurisdiction, after all other claims and requests for relief are arbitrated.

The arbitrator will issue a written decision sufficient to explain the essential findings and conclusions. After entry of an award, the arbitrator will apply the cost-shifting provisions of Federal Rule of Civil Procedure 68. Judgment on any arbitration award may be entered in a court of competent jurisdiction, except an award that has been fully satisfied may not be entered. 

Arbitration Costs

Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. The parties have a shared interest in reducing the costs associated with arbitration. The parties will work together in good faith to ensure that arbitration remains cost-effective. The parties will be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose.

Procedures for Mass Arbitrations 

These Procedures for Mass Arbitrations (in addition to the other provisions of this arbitration agreement and the applicable AAA Rules) will apply if twenty-five (25) or more similar Disputes (including yours) are asserted against Marcella by the same or coordinated counsel or are otherwise coordinated ("Mass Arbitration"). They are designed to lead to the streamlined and cost-effective resolution of claims, ensure that large volume filings do not impose unnecessary burdens or impediments to the resolution and cost-effective adjudication of similar claims, and preserve the integrity of the arbitration process. If you bring your Dispute as a part of a Mass Arbitration, the resolution of your Dispute might be delayed and it might ultimately proceed in court and not in arbitration. The parties will meet and confer in good faith in an effort to resolve any Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties' and the AAA's resources.

If you choose to bring your Dispute as part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) will be tolled for your Dispute from the time that your Dispute is first submitted to the AAA until your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

STAGE ONE: If at least one hundred (100) Disputes are submitted as part of the Mass Arbitration, counsel for the claimants and counsel for Marcella will each select 50 Disputes to be filed and to proceed as cases in individual arbitrations as part of this initial staged process.

The number of Disputes to be selected to proceed in Stage One may be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all will proceed individually in Stage One). Each of the 100 (or fewer) cases will be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim will be selected to proceed as part of Stage One. The remaining Disputes will not be filed or deemed filed in arbitration, and no arbitration fees will be assessed or collected in connection with those claims. After this initial set of proceedings, counsel for the parties will participate in a global mediation session with a professional neutral mediator, jointly selected by the parties, in an effort to resolve the remaining Disputes, and Marcella will pay the mediator's fee.

STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for Marcella will each select 100 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process.

The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 200 Disputes, all will proceed individually in Stage Two). No more than five cases may be assigned to a single arbitrator to proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim will be selected to proceed as part of Stage Two. The remaining Disputes will not be filed or deemed filed in arbitration, and no arbitration fees will be assessed or collected in connection with those claims. After this second set of staged proceedings, the parties will engage in a global mediation session of all remaining Disputes with a professional neutral mediator, jointly selected by the parties, in an effort to resolve the remaining Disputes, and Marcella will pay the mediator's fee.

Upon the completion of the mediation set forth in Stage Two (and assuming the parties do not jointly agree to continue engagement through further mediation or otherwise), each remaining Dispute (if any) that is not settled or not withdrawn will be opted out of arbitration and may proceed in a court of competent jurisdiction, consistent with the remainder of the Terms. However, the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except that Disputes will be randomly selected and mediation will be elective by agreement) or through another mutually agreeable process. A court of competent jurisdiction will have the authority to enforce the Procedures for Mass Arbitrations, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. The Procedures for Mass Arbitrations and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Procedures for Mass Arbitrations apply to your Dispute and are not enforceable, then your Dispute will not proceed in arbitration and will only proceed in a court of competent jurisdiction consistent with the remainder of the Terms.

Class Action & Jury Trial Waivers

Any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, collective, consolidated, private attorney general, or representative action. You waive any right to bring or to participate in such an action in arbitration or in court to the fullest extent permitted by applicable law. To the fullest extent permitted by applicable law, you and Marcella waive the right to a jury trial.

General Terms

Entire Agreement  

These Terms constitute the entire agreement between you and us with respect to their subject matter.  Marcella or its affiliates may offer other sites and services with different terms.  In the event of any conflict between these Terms and another written agreement between you and Marcella, these Terms will be controlling as to your use of the Marcella Services.

Severability

If any provision of these Terms is deemed unlawful, void, voidable or unenforceable for any reason, then that provision will be deemed severable from these Terms and will not affect the validity or enforceability of any remaining provisions.

Governing Law and Venue

These Terms will be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to its rules respecting the conflicts of laws. This contract is deemed made and fully performable in Hampshire County, Massachusetts.