FABKIDS TERMS OF SERVICE, USE AND PURCHASE
Welcome to FabKids! This website located at www.fabkids.com (this "Site") is owned and operated by Personal Retailing, Inc. a subsidiary of Just Fabulous, Inc., (the “Company”), and JFGC, LLC (“JFGC” and, collectively with the Company, “FabKids”). FabKids provides website features and other products and services to you when you visit, shop or purchase items from this Site, use FabKids services, access this Site from your mobile devices, or use software provided by FabKids in connection with any of the foregoing (collectively, “FabKids Services”). FabKids provides its products and services subject to these Terms of Service.
By using FabKids Services, you agree to these conditions. Please read them carefully.
You must be 18 years old to purchase FabKids products from this Site or use the FabKids Services. By accessing or using this Site, mobile application or other FabKids product or service on any computer, mobile phone, tablet, console or other device (collectively, “Device”), you acknowledge and agree that you have read, understand and agree to be bound by these Terms of Service and any other applicable law, whether or not you are a registered member of FabKids. FabKids may change these Terms of Service at any time without notice. When we make changes, we will post them here. Your continued use of the FabKids Services or enrollment as a FabKids VIP Member shall be considered your acceptance to the revised Terms of Service. If you do not agree to these Terms of Service, please do not use this Site or any FabKids Services and immediately cancel your FabKids VIP Membership by calling one of our customer service representatives at 1-855-322-5437.
ELECTRONIC COMMUNICATIONSWhen you use any FabKids Service, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site or through the other FabKids Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
FabKids offers members the opportunity to participate in its membership rewards program (the “VIP Membership Program”). To become a FabKids VIP Member, simply purchase any FabKids item on this Site or through an applicable FabKids Service and you will be automatically enrolled in the FabKids VIP Membership Program (including the monthly, automatic purchase feature). As a FabKids VIP Member, our experts will send you a customized selection of FabKids items on the 1st day of every month. You will also receive emails, newsletters, special offers and other updates to maximize your shopping experience. As a valued FabKids VIP Member, you will enjoy exclusive VIP Member-only pricing and dedicated promotions. You may cancel your FabKids VIP Membership at any time by calling one of our customer service representatives at 1-855-322-5437.
HOW VIP MEMBERSHIP PROGRAM WORKS
Upon enrollment in the VIP Membership Program, you will receive new monthly customized selections of merchandise on the first (1st) day of every month. You must make a purchase or log into your account and select the 'Skip the Month' option between the 1st and 5th day of the month. If you do not make a purchase and do not ‘Skip the Month’ your credit card will be charged an automatic monthly membership fee of $39.95 for a member credit on the 6th until you cancel. You may cancel your FabKids VIP Membership at any time by calling one of our customer service representatives at 1-855-322-5437. Each FabKids credit will be applied to your Account and can be redeemed toward the purchase of FabKids items (totaling $39.95 or higher) during your purchase checkout in any future month. You may ‘Skip’ as many months as you like, there is no obligation to buy. Even if you decide to ‘Skip’ any month, you may return to your Account at any time to make a purchase. As discussed below, any unused membership credits will be automatically converted into an electronic FabKids gift card twelve (12) months following issuance. The electronic gift cards never expire and work the same as membership credits, except that they are transferrable and can be used to purchase FabKids items of any price.
You may cancel your FabKids VIP Membership Account at any time. If you wish to cancel your Account, simply call our Fashion Consultants at 1-855-322-5437 anytime, 24 hours a day, 7 days a week. There is no cancellation fee. Please be advised that your Account may only be canceled by the registered FabKids VIP Member or the holder of the valid credit card on file related to your Account.
VIP MEMBER PERKS
As a FabKids VIP Member, you will be able to purchase FabKids branded items including, but not limited to, apparel, shoes, and other fashion items at exclusive member-only discounted prices. You will also receive free shipping on all orders over $59. In order to bring you this fabulous pricing, we must charge a $6.95 shipping fee for all orders under $59, after applicable discounts. Exchanges are also free and returns are easy!
In addition, FabKids will occasionally collaborate with premier trendsetting partners to offer specialty items at exclusive members-only prices. As a FabKids VIP Member you will also have access to exclusive member-only sales and discounts, and special collections. FabKids is always striving to create the best shopping experience to its VIP Members so additional benefits and perks may be added.
MEMBERSHIP CREDITS AND GIFT CARDS
Any membership credits issued to you will be automatically converted into electronic gift cards (“JF Gift Cards”) if they are unused following the twelve (12) month anniversary of issuance. As described below, JF Gift Cards function almost identically to membership credits, and both constitute prepaid promotional certificates that are provided to VIP Members in connection with the VIP Membership Program. JF Gift Cards can be used by you to purchase identified merchandise at a price below the regular retail price if you are a VIP Member at the time of redemption. Non VIP Members can also use JF Gift Cards to purchase FabKids merchandise at the regular retail price. Additionally, JF Gift Cards are freely transferrable and can be broken and applied across multiple purchases on this Site or the FabKids Services.
As of May 1, 2015, JFGC shall be the sole issuer and legal obligor with respect to all gift cards, including any membership credits issued prior to such date and converted into gift cards. JFGC is responsible for the management and operation of the membership credit conversion and gift card program. A converted membership credit or gift card constitutes a contract between you and JFGC. By agreeing to be bound by these Terms of Service, you expressly release the Company and its parent company and affiliated companies from any liability with respect to your converted membership credits and gift cards. You acknowledge that any such liability is the sole responsibility of JFGC.
Membership credits and gift cards are not refundable or redeemable for cash. Membership credits and gift cards can only be used toward purchasing FabKids items on the Site or through the FabKids Services. Membership credits may only be redeemed in one transaction and are non-transferrable. FabKids gift cards may be redeemed in multiple transactions and are transferrable. Once you use the FabKids gift card any remaining value from the gift card will be automatically credited back to your Account under the “store credit” section. You may transfer FabKids gift cards to family members or friends who may want to try the FabKids Service.
Your Account reflects the balance of VIP Membership credits. The Account balance will be adjusted as VIP Membership credits are converted to JF Gift Cards. Membership credits and gift cards do not expire. However, JFGC expressly reserves the right to impose inactivity or dormancy fees on membership credits and gift cards in some or all states, and may begin imposing such fees at any time by providing at least thirty (30) days’ advance notice, which notice shall be given by posting revised Terms of Service on this Site. The risk of loss and title to such gift cards passes to the purchaser upon JFGC’s electronic transmission to the recipient.
JFCG LIMITATION OF LIABILITY
JFGC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO MEMBERSHIP CREDITS OR GIFT CARDS INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT A MEMBERSHIP CREDIT OR GIFT CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH MEMBERSHIP CREDIT OR GIFT CARD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
If you have any questions regarding our gift card policies please send all inquiries to JFGC, LLC, 1590 Rosecrans Avenue, Suite D-337, Manhattan Beach, CA 90266, Attention: Customer Service, or contact our representatives at 855-202-3566 or email us at [email protected]
Shipping and handling charges are based on your subtotal order amount, calculated after applicable discounts and before sales tax. Rates are calculated as follows:
|Subtotal Amount||48 Contiguous
Puerto Rico, APO
|$59 and over||FREE
5-9 Business Days
7-10 Business Days
|Under $59||$6.95 Flat Rate
5-9 Business Days
7-10 Business Days
|Subtotal Amount||48 Contiguous
Puerto Rico, APO
2-3 Business Days
*All delivery times above are based on average in-transit time.
As soon as your order ships, you will be provided with a tracking number via email. You can also find your order details and tracking information on the Order History tab within the My Account section. We do not guarantee any specific delivery dates or times.
RETURNS AND EXCHANGES
If for any reason you are not happy with your selection, you can exchange an item for another item, or return it for a credit or refund, subject to the following terms and limitations.
You can exchange your VIP monthly selection for another item, or return it for a credit or a refund. You can exchange any additional items purchased in a given month, or return it (them) for a credit or a refund, unless you acquired it (them) with a FabKids credit. Any items acquired with a FabKids credit can only be exchanged or returned for a credit.
Return instructions for US and APO/FPO: FabKids offers 3 easy and free return options: (1) return for FabKids membership or store credit; (2) exchange for another item; (3) return for full a refund*. Return shipping and handling for non-contiguous U.S. territories, including Alaska, Hawaii, Puerto Rico and APOs, is $9.
Return instructions for Canada: In order to offer the highest level of service and mitigate any issues related to out of stock items, exchanges are not offered in Canada at this time. If you would like to exchange an item, please return the item and place a new order. Please note: new orders are subject to standard shipping rates.
For returns from Canada, please call Member Services anytime at 1-855-FAB-KIDS, 24 hours a day, 7 days a week. Member Services will create a Return Merchandize Authorization (RMA) number that you can write down for your records. After speaking with Member Services, go to your Order History in your FabKids account and find the order you'd like to return. Click on "Print your return details” and print the form. This form should have the Order number and RMA number already filled in for you. Please prepare a package and include the completed form. Ship the package using a local shipping carrier to the following address:
FabKids 8161 National Turnpike Louisville, KY 40214
Please note that any membership or store credit used to pay for an order will be returned in the same format and will not be eligible for a refund to a credit card.
*Rewards points associated with the purchase will be deducted from your account if you do choose a refund.
RISK OF LOSS/TITLE
The risk of loss and title for products purchased on the Site or through the FabKids Services passes to the purchaser upon our delivery to the carrier. Replacement of products and credits to your account for shipped merchandise claimed as not received are subject to our investigation. We will adjust your account at our discretion. FabKids does not take title to returned items until the item arrives at our fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, FabKids does not take title to the refunded item.
FabKids is not required by law to collect sales and/or use taxes in all states, nor does it actually collect such taxes in all states. However, FabKids reserves the right to collect sales tax in any other jurisdictions if it believes that such collection is required by law.
For states imposing sales or use taxes, your purchase may be subject to use tax unless it is specifically exempt from taxation. Your purchase is not exempt merely because it is made over the Internet or by other remote means. Many states require purchasers to file a sales/use tax return at the end of the year reporting all of the taxable purchases that were not taxed and to pay tax on those purchases. You may have a tax obligation in states where FabKids does not collect sales tax. Details of how to report these taxes may be found at the websites of your respective taxing authorities.
To make purchases through the FabKids Services or to become a FabKids VIP you must submit credit card information. You represent and warrant to FabKids that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You authorize FabKids to use and store any credit card information submitted by you or updated credit card information submitted by your credit card company directly to FabKids. If you dispute any charges, you must inform FabKids within thirty (30) days upon receipt of FabKids’ invoice. We reserve the right to change FabKids prices, fees or the number of Member Credits required to purchase items. Your continued use of the FabKids Services after the price change becomes effective constitutes your agreement to pay the changed amount.
FabKids may, from time to time, partner with certain third-party payment services (e.g., Masterpass, Visa Checkout or PayPal)(each, a “Payment Service”) to make the payment process more efficient and streamlined. If you choose to use a Payment Service on this Site, you authorize FabKids to receive and store the payment information associated with your use of such Payment Service and to use such payment information in connection with your purchase of FabKids Services and, for VIP Members, your automatic monthly membership fee (This paragraph was updated on October 12, 2017).
ACCOUNT CONFIDENTIALITY AND ACCESS
You are solely responsible for maintaining the confidentiality of your Account, all activities occurring under your Account and all access to and use of the FabKids Services by anyone using your Account, whether or not such activities and access are actually authorized by you, including but not limited to all communications, transactions and obligations. You agree to accept responsibility for all activities that occur under your account and password. FabKids shall not be liable or responsible for any loss or damage arising from any unauthorized use, access or any other breach of security of your Account, including but not limited to your member sign-in password and email address. You acknowledge and accept that your use of the FabKids Services is in compliance with these Terms of Service. You further acknowledge and accept that FabKids shall have no obligation to investigate the authorization or source of any Account activity, including purchase activity following a proper log-in to this Site or any FabKids Services, which is defined as a matching and current member sign-in and user password. You shall notify FabKids immediately of any unauthorized access to your Account or any other unauthorized use of any FabKids Services.
You agree that FabKids may, without prior notice, immediately terminate, limit your access to or suspend your Account based on any of the following: (a) breach or violation of these Terms of Service; (b) upon request by law enforcement; (c) unforeseeable technical or security issues or problems; (d) extended periods of inactivity; or (e) fraudulent, deceptive or illegal activity, or any other activity which FabKids believes is harmful to its business interests: or (f) for no reason. You agree that any termination, limitation of access and/or suspension shall be made in the FabKids’ sole discretion and that FabKids shall not be liable to you or any third party for the termination, limitation of access and/or suspension of your Account.
Any and all FabKids Services may be used only for lawful purposes and are available only for your personal, noncommercial use, which shall be limited to viewing this Site, purchasing products, providing information to FabKids, and downloading product information for your personal review. You are responsible for your own communications, including the transmission, posting, and uploading of information and are responsible for the consequences of such communications. FabKids specifically prohibits any use of the FabKids Service, and requires all users to agree not to use the FabKids Services, for any of the following:
- Posting any information which is incomplete, false, inaccurate or not your own;
- Creating multiple accounts for the same user;
- Accessing data not intended for you or logging on to a FabKids server or account, which you are not authorized to access;
- Engaging in conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation that would fail to comply with accepted Internet protocol;
- Communicating, transmitting, or posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
- Communicating, transmitting, or posting material that reveals trade secrets, unless you own them or have the permission of the owner;
- Communicating, transmitting, or posting material that infringes on any other intellectual property, privacy or publicity right of another;
- Communicating, transmitting, or transferring (by any means) information or software derived from the site to foreign countries or certain foreign nations in violation of any applicable export control laws;
- Attempting to interfere in any way with this Site’s network security, or attempting to use this Site’s service to gain unauthorized access to any other computer system;
- Communicating, transmitting, or posting material that is in violation of applicable laws or regulations;
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization (or succeeding in such an attempt);
- Attempting to interfere or interfering with the operation of this Site, FabKids’ provision of services to any other visitors to this Site, FabKids hosting provider or FabKids networks, including, without limitation, via means of submitting a virus to this Site, overloading, "flooding", "mailbombing" or "crashing" this Site;
- Forging any TCP/IP packet header or any part of the header information in any e-mail or transmission or posting to this Site.
Any and all content, comments, feedback, suggestions, ideas, concepts, photos, questions or other communications (collectively, “User Content”) that you submit or post through any FabKids Services shall be deemed non-confidential and non-proprietary. By submitting or posting any User Content, you grant to FabKids and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, create derivative works from, distribute, reproduce, display, or use the User Content in any commercial or non-commercial manner whatsoever. FabKids will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. FabKids shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content, or respond to any User Content. FabKids retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason.
If you utilize your Facebook account to access and use the social features available through the FabKids Services, you can choose whether or not you wish to share content or information related to your Account on Facebook. You agree that FabKids is not responsible for any content or information related to your Account once it is shared and posted on Facebook. If you use the FabKids Services and its social features, you agree to respect other users of the FabKids Services in your interactions with them. FabKids reserves the right, in its absolute discretion, to disable your account if it believes that you are violating any term or condition set forth herein.
By submitting User Content, you represent and warrant that the User Content does not (i) contain false or misleading information, (ii) infringe on the intellectual property rights of any third party, (iii) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing content, (iv) contain any addresses, email addresses, phone numbers or any contact information, or (v) contain computer viruses, worms or other harmful files. You are solely responsible for the User Content and you hereby agree to indemnify and hold FabKids and its employees, agents and affiliates harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Prices, descriptions and availability of products are subject to change without notice. Errors may be corrected when discovered, and FabKids reserves the right to revoke any stated offer in order to correct any errors or inaccuracies. Although FabKids has made every effort to display our products and their colors as accurately as possible, the displayed colors of the products depend upon the monitor of the user, and FabKids cannot guarantee that the user’s monitor will accurately portray the actual colors of the products. Products displayed may be out-of-stock or discontinued, and prices are subject to change. FabKids is not responsible for typographical errors regarding price or any other matter.
All orders placed through any FabKids Services are subject to FabKids’ acceptance. This means that FabKids may refuse to accept or may cancel any order, whether or not the order has been confirmed, for any or no reason, and without liability to you or anyone else. If your credit card has already been charged for an order that is later cancelled, FabKids will issue you a refund.
INTELLECTUAL PROPERTY RIGHTS
All content, graphics, text, code and software used on or incorporated into this Site and/or any FabKids Service, and the arrangement or integration of all such content, graphics, code and software, are subject to copyrights held by or licensed to FabKids and all rights thereto are specifically reserved. As between you and FabKids, (or any other company whose marks appear on any of the FabKids Services), FabKids (or the respective company) is the owner and/or authorized user of any registered or unregistered trademark, trade name and/or service mark appearing on any of the FabKids Services, and is the copyright owner or licensee of the materials and content contained therein, unless otherwise indicated. The FabKids logos, designs, titles, phrases, product names, photographs, images, videos and content and the copyrights, trademarks, service marks, trade dress and/or other intellectual property in such materials (collectively, “FabKids Intellectual Property”) are owned by FabKids and may be registered in the United States and internationally. You agree not to display or use the FabKids Intellectual Property in any manner without FabKids’ prior written permission. Nothing contained on this Site or in any of the FabKids Services should be construed to grant any license or right to use any FabKids Intellectual Property without the prior written consent of FabKids.
Except as otherwise provided herein, use of the FabKids Services does not grant you a license to any materials, content or features you may access on this Site or via the FabKids Services and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such materials and content, features or materials, in whole or in part. Any commercial use of the FabKids Services is strictly prohibited, except as otherwise approved by us. You may not download or save a copy of any of the materials and content or screens for any purpose except as otherwise provided by FabKids. If you make use of the FabKids Services, other than as provided herein, in doing so you may violate copyright and other laws of the United States and/or other countries, as well as applicable state laws, and you may be subject to liability for such unauthorized use. The information contained in the FabKids Services including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including, but not limited to, copyright law.
DISCLAIMERS AND LIMITATION OF LIABILITY
FabKids publishes information within the FabKids Services as a convenience to its visitors. While FabKids attempts to provide accurate and timely information, there may be inadvertent technical or factual inaccuracies and typographical errors. We reserve the right to make corrections and changes to the FabKids Services at any time without notice. The FabKids products described in the FabKids Services may not be available in your region. FabKids does not claim that the information on this Site is appropriate to your jurisdiction or that the products described in the FabKids Services will be available for purchase in all jurisdictions.
YOUR USE OF THE FABKIDS SERVICES ARE AT YOUR SOLE RISK. THE FABKIDS SERVICES AND THE PRODUCTS OFFERED THROUGH THE FABKIDS SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FABKIDS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
FABKIDS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT THE OPERATION OF THIS SITE OR ANY OF THE FABKIDS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR AS TO THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, OR ANY OF THE FABKIDS SERVICES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE, UNLESS OTHERWISE SPECIFIED IN WRITING.
FABKIDS SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF, OR THE INABILITY TO USE, THIS SITE OR THE FABKIDS SERVICES OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH FABKIDS, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF FABKIDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FABKIDS SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE FABKIDS SERVICES ISSUED AGAINST YOU BY THIRD PARTY FINANICAL INSTITUTIONS SUCH AS BANKS OR CREDIT CARD COMPANIES. FABKIDS SHALL NOT BE LIABLE FOR ANY OVERDRAFT, LATE OR ANY OTHER CHARGES ISSUED AGAINST YOU BY A BANK OR CREDIT CARD FABKIDS.
CERTAIN STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE FABKIDS SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE FABKIDS SERVICES. IF A PRODUCT OFFERED THROUGH THE FABKIDS SERVICES IS NOT AS DESCRIBED, YOUR SOLE REMEDY IS TO RETURN IT IN ACCORDANCE WITH THE RETURN POLICY SET FORTH IN DETAIL IN THESE TERMS OF SERVICE.
FabKids makes no warranties of any kind regarding any third party sites to which you may be directed or hyperlinked from the FabKids Services. Hyperlinks are included solely for your convenience, and FabKids makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such third party sites. FabKids does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties through the FabKids Services.
INDEMNITY AND RELEASE
You agree to indemnify and hold FabKids and its subsidiaries, affiliates, officers, agents and employees harmless from any and all liabilities, claims, demands, actions, suits, losses, obligations, judgments, proceedings, damages, expenses and costs (including reasonable attorneys' fees), based upon, arising from or related to (a) information or content submitted, transmitted or otherwise made available on or through the FabKids Services by you or any other person accessing the FabKids Services using your Account; (b) the use of, or connection to, the FabKids Services by you or any other person accessing the FabKids using your Account (including negligent or wrongful conduct); or (c) your breach or attempted breach of these Terms of Service.
Use of the FabKids Services, membership in the FabKids VIP Membership Program, any purchases made through the FabKids Services, and any controversy, claim or dispute arising out of or relating in any way to your use of the FabKids Services, your membership in or purchases through the FabKids Services, FabKids VIP Membership Program and/or your Account, or products purchased through the FabKids Services shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules.
Any claim or cause of action you may have with respect to FabKids or the FabKids Services must be commenced within one (1) year after the claim or cause of action arose.
Class Action Waiver
Both you and FabKids waive the right to bring any controversy, claim or dispute arising out of or relating in any way to your use of the FabKids Services, your membership in or purchases through the FabKids VIP Membership Program and/or your Account, or products purchased through the FabKids Services as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else. (This waiver, and the similar waiver specified for arbitration proceedings, are generally referred to herein as "the class action waiver.").
Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
Agreement to Pre-Arbitration Notification
These Terms of Service provide for final, binding arbitration of all disputed claims (discussed immediately below). FabKids and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, the claimant whether you or FabKids shall send a letter to the other side briefly summarizing the claim and the request for relief. If FabKids is the claimant, the letter shall be sent, via email, to the email account listed in your Account. If you are the claimant, the letter shall be sent to Personal Retailing, Inc., Attn: General Counsel, 800 Apollo Street, El Segundo, California 90245. If the dispute is not resolved within 60 days after the letter is sent, the claimant may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
Agreement to Arbitrate Claims
Except to the limited extent noted below, use of the FabKids Services, membership in the FabKids VIP Membership Program, any purchases made through the FabKids Services, and any controversy, claim or dispute arising out of or relating in any way to your use of the FabKids Services, your membership in or purchases through the FabKids VIP Membership Program, or products purchased through the FabKids Services shall be resolved by final and binding arbitration between you and FabKids.
The arbitration shall take place in Los Angeles County, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant's demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.
If you decide to commence arbitration, the provider will require to you to pay a filing fee (which currently is $125 for claims under $10,000). If your filing fee is more than $125, FabKids will reimburse you for any excess fee promptly after it receives notice of your arbitration. If the arbitrator ultimately rules in your favor, FabKids will also reimburse you for the $125 base filing fee.
If the arbitrator rules in your favor in any respect on the merits of your claim and issues you an award that is greater than the value of FabKids’ last written settlement offer made before an arbitrator was selected (or greater than zero if no offer was made), then FabKids will pay you the amount of the award or $350, whichever is greater (in addition to reimbursing you for the base filing fee).
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding.
Both you and FabKids waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary: 1. The issue of arbitrability shall be determined by the Arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the Arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.
The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
Opting out of Dispute Resolution and Class Action Waiver
You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver specified in these Terms of Service by doing the following: within 15 days of setting up your Account, you must send a letter to Personal Retailing, Inc. c/o Legal Department, 800 Apollo Street, El Segundo, California 90245 that specifies (1) your name, (2) your account number or account member name, (3) your mailing address, and (4) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in these Terms of Service. All other Terms shall continue to apply to your Account, including the requirement to participate in pre-dispute mediation. Notwithstanding any provision in these Terms of Service to the contrary, we agree that, if FabKids makes any future change to the dispute resolution procedure and class action waiver provisions (other than a change to FabKids’ address), you may reject any such change by sending a letter to FabKids within 15 days of the change to the address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. Your letter must be postmarked by the applicable 15-day deadline to be effective. You are not required to send the letter by confirmed mail or return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the applicable 15-day deadline.
Notice for California Users
Under California Civil Code sections 1798.83-1798.84, California residents are entitled to ask us for a notice describing what categories of personal customer information FabKids shares with third parties or corporate affiliates for those third parties or corporate affiliates' direct marketing purposes. That notice will identify the categories of information shared and will include a list of the third parties and affiliates with which it was shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to the following address: General Counsel, 800 Apollo Street, El Segundo, CA, 90245. In your request, please specify that you want a "Your FabKids California Privacy Rights Notice." Please allow 30 days for a response.
These Terms of Service constitute the entire agreement between you and FabKids and govern your use of the FabKids Services, and they supersede any prior agreements between you and FabKids. You also may be subject to additional terms and conditions that are applicable to certain parts of the FabKids Services. FabKids may terminate this Agreement and deny you access to the FabKids Services at any time, immediately and without notice, if in FabKids’ sole discretion you fail to comply with any provision of these Terms of Service.
You agree that no joint venture, partnership, employment, or agency relationship exists between FabKids and you as a result of this Agreement or your use of the FabKids Services.
The failure of FabKids to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The invalidity of any term, condition or provision in these Terms of Service shall not affect the enforceability of those portions of the Terms deemed enforceable by applicable courts of law.
You may not assign the Terms or any of your rights or obligations under the Terms without FabKids’ express written consent. The Terms inure to the benefit of FabKids’ successors, assigns and licensees. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Updated: August 25, 2020