FabKids Terms of Service, Use and Purchase
FabKids VIP Membership Program
Your card will be charged $49.95 for a member credit each month if you do not make a purchase or skip the month by the 5th. Each member credit can be redeemed for FabKids products worth $49.95 or more and never expire. You can always choose to skip the month between the 1st and the 5th and not be charged for a member credit.
Cancel any time. You may cancel your VIP Membership at any time by calling 1-855-322-5437 24 hours a day, 7 days a week or using online chat.
Welcome to FabKids! This website located at www.fabkids.com (this "Site") is owned and operated by Personal Retailing, Inc. d/b/a FabKids (“Company” or "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”). This Site and any purchases made through this Site are governed by the terms of service, use and purchase described below ("Terms of Service").
By using FabKids Services, you agree to these conditions. Please Read Carefully. These Terms of Service include a mutual arbitration agreement, class action waiver, and limitations on liability.
You must be at least 18 years old to purchase FabKids products from this Site or to 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 wish to be bound to these Terms of Service (or any revisions to these Terms of Service), please do not use this Site or the Company's services and immediately cancel your FabKids VIP Membership by calling one of our customer service representatives at 1-855-322-5437 or cancelling your account online.
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.
VIP MEMBERSHIP PROGRAM
FabKids offers members the opportunity to participate in its monthly membership program (the “VIP Membership Program”). To become a FabKids VIP Member, you must checkout as a VIP Member when making a purchase on this Site or through an applicable Service. 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.
HOW VIP MEMBERSHIP WORKS
As a FabKids VIP Member, you will be required to take action by the 5th day of every month by selecting one of the Monthly Options described below. These options can be selected through your online account or by calling customer service at 1-855-322-5437. You may also cancel your FabKids VIP Membership at any time.
If you do not select the 'Skip This Month' option, select an item for purchase or cancel your membership by the 5th day of the month, your credit card will be billed $49.95 for that month and you will receive a FabKids member credit that can be redeemed toward the purchase of any FabKids item valued at $49.95 or more.
All items come with a 60-day return/exchange policy.
VIP MEMBER PERKS - VIP PRICING
As a FabKids VIP Member, you will be able to purchase FabKids branded items starting at $49.95, including, but not limited to, apparel, shoes and other fashion items. The site also offers a range of products, including, but not limited to, apparel, shoes and more for less than $49.95.
In addition, the Site will occasionally collaborate with premier trendsetting partners to offer specialty items at exclusive members-only prices. In order to bring you the most fabulous fashion trends which are not offered anywhere else, these exclusive specialty items may be offered at prices above $49.95.
MORE REGARDING YOUR VIP MEMBERSHIP PROGRAM MONTHLY OPTIONS
It’s up to you, as a FabKids VIP Member, you will have the following options each month:
1. Make a purchase by the 5th day of the month. You may make additional purchases throughout the month as well.
2. 'Skip This Month'. There is no obligation to select and buy an item each month. You may select to 'Skip This Month' from the 1st day of the month until the 5th day of the month. Should you decide not to purchase an item for any given month, simply select the 'Skip This Month' option by the 5th day of the month and your credit card or payment method will not be charged that month. If you do not select the 'Skip This Month' option by the 5th day of the month and have not made a purchase, your credit card or payment method will be charged $49.95 and you will receive one FabKids member credit. Each FabKids member credit can be redeemed toward the purchase of any item on the site valued at $49.95 or more. If your purchase is more than $49.95, simply pay the difference with your credit/debit card. Even if you decide to 'Skip This Month', you may return to your Boutique at any time to make a selection.
You may cancel your FabKids VIP Membership Account at any time. If you wish to cancel your Account, simply call our FabKids customer representatives at 1-855-322-5437, 24 hours a day, 7 days a week. You may also cancel online. There is no cancellation fee. Please be advised that an account may only be canceled by the registered FabKids VIP Member.
When you provide your phone number and opt-in to FabKids’ text message marketing program (the “Messaging Service”), you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g., cart reminders) from FabKids, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Reply HELP for help and STOP to cancel. Message & Data rates may apply. Message frequency will vary. FabKids reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. FabKids also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so.
Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. FabKids, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minorcarriers: 1stPoint Communications, Aerialink, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Arctic Slope Telephone Cooperative Association, ATNI (Commnet/Choice Wireless), Bandwidth (Republic Wireless), Bell Mobility, Bluegrass Cellular, BreakAway Wireless, BrightlinkIP, Cambridge Telephone Company, Carolina West Wireless, Cellcom, Cellone Nation, Cellular One of East Central IL (ECIT), Cellular One of Northeast Arizona, Cellular One of Northeast Pennsylvania, Chariton Valley, Cincinnati Bell Wireless, Claro (Puerto Rico), Cooper Valley, Coral Wireless (Mobi PCS), Cordova Wireless, COX, Cricket Wireless, Cross, C-Spire, Custer Tel, Digital Communications Consulting (DCC/OTZ Telecommunications), Duet, Element Mobile (Flat Wireless), Enflick (TextNow), Epic Touch (Elkhart Telephone), Fido Mobile, Fizz Mobile, Freedom Mobile, GCI, Golden State, Google Voice, GTA, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Indigo Wireless, Inland Cellular,Inteliquent (Layered/Onvoy/UNREAL/FreedomPop), iWireless (Iowa Wireless), James Valley, Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), MTPCS, NE Colorado, Nemont CDMA (Sagebrush Cellular), Nemont UMTS, Nex-Tech Wireless, NTelos, Nucla-Naturita Tel, Open Mobile (Puerto Rico), Orange, Panhandle Communications, Peerless Networks, Pine Cellular, Pinger (Textfree), Pioneer, Plateau (Texas RSA 3 Ltd), Plivo, PTCI (Panhandle Telephone Coop.), PTI Pacifica (IT&E), Revol, RINA, Rogers Wireless, Sasktel, Simmetry (TMP Corporation), Shelcomm, Silver Star Communications, Snake River PCS (Eagle Tel), SouthernLINC, Standing Rock, Strata Networks, Telnyx, Telus Mobiity, TextMe, Thumb Cellular, Triangle Wireless, Trilogy, Truphone, TSG Global (Flextalk), Tychron, Union Wireless, United Wireless, Viaero Wireless, Videotron Mobile, Viva, Viya, Washington RSA No. 8, West Central (WCC or 5 Star Wireless), and Zipwhip.
Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that FabKids and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from FabKids through any other programs you have joined until you separately unsubscribe from those programs. Text the keyword HELP to our shortcode to return customer care contact information. If you are experiencing any problems with the Messaging Service, you may call us at 1-855-322-5437 or contact us through live chat available 9am - 9pm (EST), 7 days a week.
MEMBER CREDITS AND GIFT CARDS
Any member credits issued to you will be automatically converted into electronic gift cards (“JF Gift Cards”) and issued to you by JFGC LLC (“JFGC”) if they are unused following the twelve (12) month anniversary of issuance. As described below, JF Gift Cards function almost identically to member 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 member credits issued prior to such date and converted into gift cards. JFGC is responsible for the management and operation of the member credit conversion and gift card program. A converted member 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 member credits and gift cards. You acknowledge that any such liability is the sole responsibility of JFGC.
Member credits and gift cards are not redeemable for cash. Member credits and gift cards can only be used toward purchasing FabKids items on the Site or through the FabKids Services. Member 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 Member credits. The Account balance will be adjusted as VIP Member credits are converted to JF Gift Cards. Member credits and gift cards do not expire. However, JFGC expressly reserves the right to impose inactivity or dormancy fees on member 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 MEMBER 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 MEMBER CREDIT OR GIFT CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH MEMBER 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@example.com. If you would like to check your unredeemed Gift Card balance you may visit https://www.jfgiftcard.com.
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
|$59.00 and over||FREE
6-14 Business Days
Up to 30 Business Days
|Under $59.00||$6.95 Flat Rate
6-14 Business Days
Up to 30 Business Days
|$79.00 and over||FREE
9-14 Business Days
|Under $79.00||$9.95 Flat Rate
9-14 Business Days
|Subtotal Amount||48 Contiguous
|Alaska, Hawaii, APO/FPO||Canada|
2-3 Business Days
*All delivery times above are based on average in-transit time. Orders shipped to Canada, P.O. Boxes and APOs/FPOs do not qualify for Rush Shipping. Please note: There may be delays due to unforeseen circumstances or customs. If you haven't received your order after 4 weeks, please call Member Services at 1-855-FAB-KIDS. The customer is responsible for any duties or taxes on the value of the goods purchased, which may be imposed by the Canadian Government.
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
FabKids strives to provide an amazing shopping experience and superior customer service. If for any reason you are not content with your initial VIP Membership order, we accept returns and exchanges on orders from US and Canada within 60 days from the date of shipment in new, used, or damaged condition. For all subsequent orders, we gladly accept returns and exchanges for US and Canada orders within 60 days from the date of shipment and in new, unused condition with original packaging. Some items purchased through special promotions may be final sale, and therefore not eligible for exchanges or returns (please refer to promotion disclaimers for the terms of each offer). Accessories must be returned with all pieces included and intact. Apparel must also be returned unworn, with tags still attached.
Return instructions for US, APO/FPO, and Canada:
FabKids offers 3 easy and free return options: (1) return for FabKids member 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 and APOs, is $9, and Canada is $9.95.
Please note that any member 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. Also, please note reward points associated with the purchase will be deducted from your account if you do choose a refund. Items redeemed through the rewards program are not eligible for returns or exchanges
Shipping Your Return or Exchange:
To make a return or exchange, please follow these steps:
• Obtain a Return Merchandise Authorization (RMA) number. This allows us to process your return. You can obtain a RMA number by calling our FabKids customer representatives by dialing our toll free number at 1-855-322-5437. Our FabKids customer representatives will email you our pre-paid return shipping label. Alternatively, you can obtain a RMA number online by clicking on the link in the 'Order History' section in your Account.
• Send the item back in the original, undamaged box and packaging.
• Attach the pre-paid return shipping label to your shipment and drop it off at any USPS or FedEx location.
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. FabKids reserves the right to collect sales tax in any jurisdictions if it believes that such collection is required by law. FabKids also reserves the right to collect fees associated with tariff taxes and surcharges.
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 Member you must submit credit card information or another valid payment method that is acceptable to FabKids. 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 and if there is no updated credit card information FabKids may use additional payment methods you have provided as a default payment option. 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.
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 this Site or 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 shall not use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons or otherwise undertake any endeavor aimed at deriving revenue. 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. You are solely responsible for your use of any User Content you post, including the transmission, accuracy and completeness of the User Content. In addition, relying on any User Content by other users is at your own risk. To the extent permitted by applicable law, under no circumstances will FabKids be responsible or liable for any loss or damage resulting from your reliance on information, advice or other User Content provided by any user of our Services. 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 or payment method 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.
DISCLAIMER OF WARRANTIES; 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, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.THE COMPANY 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.THE COMPANY 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 THE FABKIDS SERVICES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY LOST PROFITS, DATA, OR USE EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THE COMPANY 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 ISSUED AGAINST YOU BY THIRD PARTY FINANCIAL 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.
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 parent, 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 this Site using your Account (including negligent or wrongful conduct); or (c) your breach or attempted breach of these Terms of Service.
DISPUTE RESOLUTION AND MUTUAL ARBITRATION AGREEMENT
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 (collectively, “Disputes”) shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules.
All Disputes between FabKids and you must be commenced within one (1) year after the claim or cause of action arose.
Jurisdiction and venue for all Disputes 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 Disputes (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. The parties agree that, before either party demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally the Dispute. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. Engaging in this informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. 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. The statute of limitations and any arbitration filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
Agreement to Arbitrate Claims
Except to the limited extent noted below, all Disputes shall be resolved by final, binding, and bilateral arbitration between you and FabKids.
The arbitration shall take place in Los Angeles County, California and be administered by ADR Services, Inc. and shall be subject to ADR Services’ most current version of its Arbitration Rules, available at https://www.adrservices.com/services/arbitration-rules or by calling ADR Services at 310-201-0010. If ADR Services is not available to arbitrate, the parties will mutually select an alternative arbitral forum, and either Party may invoke 9 U.S.C. § 5 to request that a court appoint an arbitration provider. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administer) may resolve that dispute, and the arbitration shall be stayed pending the court’s ruling.
The arbitration demand must include (1) the name, telephone number, mailing address, username and e-mail address of the party seeking arbitration; (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, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. Counsel for any party bringing an arbitration demand must also provide a certification that, to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. The parties agree that these Terms of Service evidence transactions involving interstate commerce. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
The arbitrator (and not a court) shall determine any and all challenges to the arbitrability of a claim, including disputes about the scope, applicability, enforceability, revocability, or validity of this arbitration agreement. However, all disputes related to the enforceability and applicability of the class action waiver (see below) shall be resolved by a court and not an arbitrator. In the event that the arbitration agreement is found not to apply to you or to a particular Dispute, either as a result of your decision to opt out of the agreement to arbitrate, or as a result of a decision by the arbitrator or a court order, you and FabKids agree that that Dispute must be resolved exclusively by a state or federal court located in Los Angeles County, California. The parties agree that all related Disputes that can be arbitrated shall be arbitrated first, and any non-arbitrable Disputes shall be stayed until the completion of the arbitration.
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 ADR Services acknowledges receipt of a claimant's demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone or video hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration. The arbitrator is authorized to hear motions for summary disposition. Notwithstanding any provision in the ADR Services’ rules 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.
The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by law.
The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law.
The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.
If at any time the arbitrator or arbitration administrator fails to enforce the terms of this arbitration agreement, either party may seek to enjoin the arbitration proceeding in a court of competent jurisdiction, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
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. However, in any award issued in an arbitration conducted in accordance with this arbitration agreement, the arbitrator shall specify a reasonable time within which the final award shall be satisfied, and no party may seek to confirm the award until the time specified for satisfaction has expired. If the final award is satisfied during the specified time, no party shall seek to confirm the award.
ARBITRATION FEES AND COSTS. The fees that shall apply to arbitrations administered by ADR Services are set forth on ADR Services’ website, available at https://www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services’ Mass Employment Arbitration Fee Schedule shall apply when twenty (20) or more arbitration claims are filed which: (1) involve the same or similar parties; (2) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (3) involve the same or coordinated counsel for the parties. In all other circumstances, the fees set forth in ADR Services’ General Fee Schedule shall apply, except that FabKids will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. If the arbitrator finds that you cannot afford to pay ADR Services’ filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from ADR Services, FabKids will pay them for you.
Unless otherwise prohibited by law or the rules governing the arbitration, all disputes relating to or arising out of the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator or administrator, and the arbitration shall be stayed pending the resolution of such disputes by a court. Both parties agree not to oppose or interfere with any negotiations or agreements between the other party and the arbitration administrator, or individual arbitrator, relating to a party’s portion of the fees. The arbitrator, however, may disallow any private agreement between an administrator, on the one hand, and the negotiating party, on the other hand, if the arbitrator believes that the private agreement undermines his or her neutrality as arbitrator.
If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made. Further, any finding by an arbitrator that a claim or counterclaim was filed for purposes of harassment or is frivolous under the standards set out in Federal Rule of Civil Procedure 11 shall entitle the other party to recover their attorneys’ fees, costs, and expenses.
CLASS ACTION WAIVER (herein the “class action waiver”). Both you and FabKids waive the right to bring any Dispute 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. Nor shall the arbitrator have the authority or any jurisdiction to hear an 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. Consistent with their commitment to arbitrate all Disputes on an individualized basis, the parties also waive the right to bring any claims for public injunctive relief. To the extent applicable law prevents the parties from waiving a claim for public injunctive relief, all claims for public injunctive relief shall be heard by the arbitrator. Nothing in these Terms of Service prevent any party from participating in a settlement of a class, consolidated, representative, collective, or private attorney general action.
SEVERABILITY. Except as otherwise provided herein, if any portion of this arbitration agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision will be severed from this arbitration agreement, (2) the remainder of the arbitration agreement will be given full force and effect, and (3) severance of the unenforceable or unlawful provision will have no impact on the remainder of the arbitration agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and FabKids agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If there is a final determination that applicable law precludes enforcement of the class action waiver as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible.
OPTING-OUT OF DISPUTE RESOLUTION PROCEDURE 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. Each opt-out notice may opt out only one person; opt-out notices that attempt to opt out multiple people at the same time will be ineffective.
If you opt out of this arbitration agreement, all other Terms shall continue to apply to your Account, including the requirement to participate in pre-dispute mediation. Opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. 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: December 1, 2020