TERMS OF SERVICE
Date of Last Revision: Dec 10, 2013
Welcome to FabKids!
Welcome to FabKids! This website located at www.fabkids.com (the “Site”) is owned and operated by Personal Retailing, Inc. ("FabKids," "we," "us," "our"), a subsidiary of Just Fabulous Inc. This Site and any purchases made through this Site are governed by the terms of service, use and purchase described below and amended from time to time (“Terms”). By using this Site, purchasing items through this Site, and/or enrolling in our FabKids VIP Membership Program (which includes a monthly automatic purchase feature as described below), you agree to be bound by these Terms, so please review this entire page carefully. These Terms are designed to clearly provide you with a description of the FabKids VIP Membership Program and general terms and conditions regarding purchasing products from FabKids and use of this Site.
You must be 18 years old to purchase FabKids products from this Site or use the Fabkids services. FabKids reserves the right in its sole discretion, to revise or modify portions of these Terms without further notice so please check back here periodically for updates. By continuing to use or purchase products from this Site and/or by remaining a member of the FabKids VIP Membership Program, you accept and agree to FabKids’ right to revise the Terms from time to time and to be bound by such changes, so long as they are promptly posted on the Site or emailed to the email account we have on record for you. If you do not wish to be bound to these Terms (or any revisions to these Terms), please do not use this Site or the Company's services and immediately cancel your FabKids VIP Membership by contacting FabKids Member Services at CustomerCare@fabkids.com.
The Service is designed to provide parents with great clothes ("outfits" or "items") for their children each month. Selections are personalized based on a fun introductory style quiz you may take on the Site. Once you take the survey and create an account you will become a "Member." There is no registration fee and no obligation to purchase. Members can browse personalized outfit selections on the Site and will continue to receive monthly picks from our style experts each month based on the style profile you created during the introductory style quiz for your child.
YOUR REGISTRATION OBLIGATIONS
VIP MEMBERSHIP PROGRAM
To become a FabKids VIP member, simply purchase any item on the Site and choose the VIP checkout option (which includes the monthly, automatic purchase feature). As a FabKids VIP Member, you will receive a customized selection of FabKids outfit picks based on your child’s style profile on the 1st day of every month. Please read below for a detailed description of how the VIP Membership Program works. You will also receive emails, newsletters special offers and other updates to maximize your shopping experience.
HOW VIP MEMBERSHIP PROGRAM WORKS
As a FabKids VIP Member, you will receive a customized selection of FabKids outfit picks based on your child’s style profile on the 1st day of every month. 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 contacting FabKids Member Services at CustomerCare@fabkids.com. You also may cancel your membership at any time. In any given month, if you do not make a purchase, select the ‘Skip This Month’ option, or cancel your VIP membership by the 5th day of the month, your credit card will be billed $29.95 for that month and you will receive one FabKids Member Credit ("Member Credit") that can be redeemed toward the purchase of any FabKids outfit in any future month.
Please note that our outfits are available in limited quantities, so some outfits may not be available in the sizes or quantities that you request. For more details on our Service, please see our FAQs at www.fabkids.com/faq.htm.
MONTHLY OPTIONS FOR YOUR VIP MEMBERSHIP PROGRAM
Depending on your mood, as a FabKids VIP Member, you will have the following options each month:
- Pick your monthly selection by the 5th day of the month. We will ship it immediately (stock permitting). You may purchase additional items as well.
- 'Skip This Month'. There is no obligation to select and buy an outfit each month. You may select to 'Skip This Month' from the 1st day of the month until the 5th day of the month. There are no limits on the number of times a VIP Member may skip a month. Should you decide not to select an outfit in any given month, simply select the 'Skip This Month' option by the 5th day of the month and you will not be charged that month. You can Skip This Month by clicking the link provided in the monthly outfit email or in your account on the Site. If you do not select the 'Skip This Month' option by the 5th day of the month, you will be charged $29.95 and you will receive one FabKids Member Credit. Each FabKids Member Credit can be redeemed toward the purchase of one FabKids outfit, or any $29.95 purchase in any future month. Even if you decide to 'Skip This Month', you may return to the Site at any time to make a purchase.
You may cancel your FabKids VIP Membership Account at any time. If you wish to cancel your Account, simply contact FabKids Member Services toll-free at 1-855-FAB-KIDS (open Monday through Friday, 9am-9pm EST). If we receive your cancellation request prior to the date on which your payment instrument will be charged, you will not be charged the Membership Fee for that month. There is no cancellation fee. Please be advised that an account may only be canceled by the registered FabKids VIP Member.
Member Credits cannot be used to pay your initial monthly purchase fee. Credits can only be used toward purchasing additional items. If you have multiple credits, you may redeem them together or separately, in a single month or gradually over time. Member Credits have no cash value and can only be redeemed toward purchasing an item. You can also gain credits by returning an outfit for a credit. You may also send or receive Member Credits as a gift. Member Credits that are received through the monthly Membership Fee, otherwise purchased, or gifted will not expire.
We invite and encourage both Members and VIP Members to earn FabKids Referral Credits ("Referral Credits") by introducing your friends and contacts to FabKids. Please see more details on our current Referral Credits program at www.fabkids.com/referral.htm. By earning and redeeming Referral Credits you are agreeing to the following additional terms and conditions: If two people refer the same friend, the friend who sent the link that is used to create the new member's account shall be deemed the referring friend, regardless of which link was sent to the new member first.
This offer is limited to one referral and email address per friend, although there is no limit to the number of friends you can invite. Friends who register using multiple accounts or email addresses will be subject to account termination and the $10 Referral Credits issued to you for that referral will be cancelled.
Redeeming Referral Credits; Expiration: Referral Credits may be used for any purchase on www.fabkids.com (exclusive of shipping, handling, taxes or other applicable transaction costs). You may not use Referral Credits to buy gift cards or to pay shipping, handling, taxes or any other applicable transaction costs. Unredeemed Referral Credits will expire 60 days from the date they were issued.
Prohibitions and Cancellations: Referral Credits are issued to a single FabKids account at our discretion and cannot be transferred, bartered, sold or used for a purchase where payment is made using payment information (e.g., a credit card number or PayPal account) that is already associated with another FabKids account.
Referral Credits are loyalty/promotional offers and are not a payment instrument; they are issued without any exchange of money or value from you and you have no vested property right or interest in Referral Credits.
Referral Credits have no cash value by themselves and cannot be redeemed for cash.
FabKids reserves the right to cancel your Referral Credits if we determine in our sole discretion that you have violated these terms or any of our Terms of Service, including through your fraudulent or misleading referral activity (for example, by inviting fake people to join FabKids, using false names, using multiple email accounts or email addresses, impersonating another person or otherwise providing false or misleading information to us) or if we terminate your account for any reason. You may also be liable for civil and/or criminal penalties under applicable law.
Changes to Referral Credits Terms: FabKids reserves the right in its sole discretion at any time and without prior notice to you, to add to, remove or otherwise change the terms applicable to the issuance and use of Referral Credits. Such changes may include without limitation, how you may earn and spend Referral Credits, how long Referral Credits last, minimum purchase amounts with which Referral Credits may be used and the lifetime maximum amount of Referral Credits that you may earn.
In addition, we reserve the right to terminate any referral programs at any time in our sole discretion, including without limitation, if we believe that it is impractical to administer the program in compliance with applicable law. In such case all Referral Credits will be void 30 calendar days after termination of the program is announced.
We offer free shipping to all VIP Members on orders of $49 or more. Orders less than $49 will incur a standard shipping charge according to the chart below. You may also pay to expedite shipping for an additional $8.95 fee.
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. All items you receive through our Service will be shipped by a third party carrier, and title and risk of loss for such items will pass to you upon our delivery to such carrier.
Shipping and handling charges are based on your subtotal amount, calculated after applicable discounts and before sales tax. Rates are calculated as follows:
|Subtotal Amount||48 Contiguous
Puerto Rico, APO
|$49.00 and over||FREE
4-10 Business Days
7-10 Business Days
|Under $49.00||$4.95 Flat Rate
4-10 Business Days
7-10 Business Days
|Subtotal Amount||48 Contiguous
Puerto Rico, APO
|$49.00 and over||$8.95
2-3 Business Days
2-3 Business Days
*All delivery times above are based on average in-transit time. Orders shipped to P.O. Boxes and APOs/FPOs do not qualify for Rush Shipping.
RETURNS AND EXCHANGES
You can exchange your VIP monthly selection for another outfit, or return it for a credit or a refund subject to a $5.95 restocking fee. A $5.95 restocking fee will be charged for each item that is returned for a refund to your credit card or other payment instrument (as opposed to for an Member Credit) as specified in our return policy. You can exchange any additional items purchased in a given month, or return it (them) for a credit or a refund subject to a $5.95 restocking fee, unless you acquired it (them) with a FabKids Member Credit. Any items acquired with a FabKids Member Credit can only be exchanged or returned for a credit.
We only accept returns or exchanges up to 30 days from the original date of shipment. Any item to be returned or exchanged must be in new, unused and resalable condition. Any exchange or return should be sent back in the original, undamaged box and packaging, plus any accessories or extras that may have been included with the shipment.
FabKids will pay for shipping to return items to our Distribution Center. For details on how to initiate a return, please see our return policy at www.fabkids.com/shipping.htm
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 Site 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. The Company 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 Site is in compliance with these Terms. 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 the Site, 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 the Site.
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; (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. 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.
GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that FabKids may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on FabKids’ servers on your behalf. You agree that FabKids has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that FabKids reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that FabKids reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service includes certain services that are available via a mobile device, including the ability to browse the Site from a mobile device (collectively, the "Mobile Services"). To the extent you access the Site and services provided thereon through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, accessing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
CONDITIONS OF USE
User Conduct: You are solely responsible for all photographs, video, images, information, data, text, software, music, sound, graphics, messages or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") or email or otherwise use via the Site. The following are examples of the kind of content and/or use that is illegal or prohibited by FabKids. FabKids reserves the right to investigate and take appropriate legal action against anyone who, in FabKids’ sole discretion, violates this provision, including without limitation, removing the offending content from the Site, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Site to:
|a||email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of FabKids, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose FabKids or its users to any harm or liability of any type;|
|b||interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or|
|c||violate any applicable local, state, national or international law, or any regulations having the force of law;|
|d||impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;|
|e||solicit personal information from anyone under the age of 18;|
|f||harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;|
|g||advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;|
|h||further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or|
|i||obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.|
More information on Membership Fees is described above. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide FabKids information regarding your credit card or other payment instrument. 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 agree to pay FabKids the Membership Fee (as defined above) in accordance with the terms of such plan and this Terms of Service. You hereby authorize FabKids to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let FabKids know within thirty (30) days after the date that FabKids invoices you. We reserve the right to change FabKids’ prices, fees or including the number of Credits required to purchase items. If FabKids does change prices, FabKids will provide notice of the change on the Site or in email to you, at FabKids’ option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on FabKids’ net income.
SPECIAL NOTICE FOR INTERNATIONAL USERS
Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
INTELLECTUAL PROPERTY RIGHTS
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content ("Service Content") that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by FabKids, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of FabKids, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by FabKids.
The JUST FAB and FABKIDS name and logos are trademarks and service marks of FabKids (collectively the "FabKids Trademarks"). Other FabKids, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to FabKids. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of FabKids Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of FabKids Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will FabKids be liable in any way for any content uploaded by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content uploaded or emailed via the Service. You acknowledge that FabKids does not pre-screen content, but that FabKids and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, FabKids and its designees will have the right to remove any content that violates these Terms of Service or is deemed by FabKids, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: You are solely responsible for the content and other materials you upload through the Service or share with other users or recipients (collectively, "User Content"). You will not upload any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant FabKids and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions") provided by you to FabKids are non-confidential and FabKids will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that FabKids may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of FabKids, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: FabKids respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify FabKids of your infringement claim in accordance with the procedure set forth below.
FabKids will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to FabKids’ Copyright Agent at CustomerCare@FabKids.com (Subject line: "DMCA Takedown Request"). You may also contact us by mail at:
609 Mission Street, 2nd Floor
San Francisco, CA 94105
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Counter Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, FabKids will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, FabKids has adopted a policy of terminating, in appropriate circumstances and at FabKids’ sole discretion, users who are deemed to be repeat infringers. FabKids may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Sites: The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. FabKids has no control over such sites and resources and FabKids is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that FabKids will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that FabKids is not liable for any loss or claim that you may have against any such third party.
In addition, FabKids is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, FabKids is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. FabKids enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
INDEMNITY AND RELEASE
You agree to release, indemnify and hold FabKids and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties: YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FABKIDS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
FABKIDS MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY CLOTHES, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability: YOU EXPRESSLY UNDERSTAND AND AGREE THAT FABKIDS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FABKIDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL FABKIDS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID FABKIDS IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
At FabKids' or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Francisco, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator's decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
You agree that FabKids, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if FabKids believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. FabKids may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that FabKids may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that FabKids will not be liable to you or any third-party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and FabKids will have no liability or responsibility with respect thereto. FabKids reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and FabKids and govern your use of the Service, superseding any prior agreements between you and FabKids with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and FabKids agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of FabKids to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us at CustomerCare@fabkids.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.