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Terms of Use and Sale

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    Last Updated: January 29, 2024
    FabFitFun, Inc. (“FabFitFun”, “us” or “we”) owns and operates various websites including: fabfitfun.com, summerandrose.com, ish.co, chicandtonic.com, xosienna.com, hythehome.com, shortstoriesshop.com and the FabFitFun mobile application (collectively, the “Sites”). These Terms of Use and Sale (“TOUS”) constitute a legally binding agreement made by and between FabFitFun and you as the user of the Sites (personally and, if applicable, on behalf of the third party for whom you are using the Sites; collectively, “you” and “your”). The TOUS govern your use of the retail, membership and other services we make available on, through or in connection with the Sites and any other transactions or promotions you engage in with us (collectively, “Services”).
    BY ACCESSING OR USING ANY PART OF THE SITES OR SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TOUS, WHICH CONTAIN AN ARBITRATION AGREEMENT, A WAIVER OF CLASS-ACTION RIGHTS, A JURY WAIVER, AND LIABILITY LIMITATIONS. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE SITES OR ANY SERVICES.
    If you have any questions about these TOUS, please contact us by email at legal@fabfitfun.com.

    TABLE OF CONTENTS
    1. General
    2. Account Registration; Account Use
    3. Terms of Sale
    4. Memberships
    5. Promotions and Credits
    6. Communications
    7. Intellectual Property; Third-Party Content and Services
    8. Contributions to FabFitFun
    9. Infringement
    10. Warranties; Disclaimer
    11. Limitation of Liability
    12. Indemnity
    13. Termination; Survival
    14. Dispute Resolution and Arbitration Agreement
    15. General Terms


    1. GENERAL
    1.1 Eligibility. You understand and agree that to use the Sites and Services you must be of legal age (18 years of age or older, or, if you have parental consent, 16 years of age). If you use the Sites or Services on behalf of any third party, you agree that you are an authorized representative of that third party and that your use of the Sites or Services constitutes that third party’s acceptance of these TOUS. In addition, if you have been previously prohibited from accessing the Sites or Services or the website of any of our affiliates, you are not permitted to access or use the Sites or Services.
    1.2 License to Use the Sites and Services. Subject to your compliance with these TOUS, we grant you a limited, non-exclusive, non-sublicensable, nontransferable, and revocable right to access the Sites and use the Services for your personal, non-commercial use. FabFitFun reserves the right to monitor your usage of the Sites and Services for the purpose of determining that it complies with these TOUS and for any other purposes as outlined in our Privacy Policy.
    1.3 Prohibited Conduct. You may not use the Sites or Services other than as expressly permitted by Section 1.2 above. Without limitation, you will not, directly or indirectly: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Sites; (b) use the Services or Sites commercially; (c) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Sites or Services (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (d) interfere with or damage the Sites, Services, or underlying technology; (e) impersonate or misrepresent your identity or affiliation; (f) attempt to obtain unauthorized access to the Sites or Services; (g) collect information about users of the Sites or the Services; (h) violate, misappropriate or infringe a third party’s intellectual property or other right, or any social media platform terms; (i) violate any law, rule, or regulation, or (j) interfere with any third party’s ability to use or enjoy, or our ability to provide, the Sites or Services.
    1.4 Privacy Policy. Information about how we collect, use and disclose your personal data, and the basis for this, can be found in FabFitFun’s Privacy Policy. Your agreement to these TOUS constitutes your acknowledgement that you have read and accepted the Privacy Policy.

    2. ACCOUNT REGISTRATION; ACCOUNT USE

    2.1 Account Registration. If you create an account, you agree to provide us with complete and accurate information and to promptly update such information to keep it complete and accurate. You are responsible for maintaining the confidentiality of your password and account. You are responsible for any and all activities that occur under your account. You may not use anyone else’s account or allow anyone else to use your account at any time.
    2.2 Your Responsibility for Your Account Security. You agree to notify FabFitFun immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or costs (including but not limited to legal fees) that you may incur as a result of someone else using your password or account, either with or without your knowledge. You will be liable for losses, damages, liability, expenses and costs (including but not limited to reasonable legal fees) incurred by FabFitFun or a third party due to someone else using your account, unless such unauthorized use is due solely to FabFitFun’s own gross negligence or willful misconduct.
    2.3 No Obligation to Retain a Record of Your Account. FabFitFun retains the right, but does not undertake the obligation, to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Sites or Services.

    3. TERMS OF SALE

    The following terms apply to your purchase of the products offered on the Sites, including box products, digital products, consumer products, or additional products (collectively, “Products”) and Services including Memberships (defined in Section 4 below).
    3.1 Product and Membership Descriptions. We try to make the Sites and Services thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Sites or Services may be incorrect, incomplete, inaccurate, or appear inaccurate. We apologize in advance for any such issues that may result in an incorrect price, inaccurate description, item unavailability or other issue that may affect your order. If the correct price of a Product or Service is higher than the listed price, we have the right to cancel any incorrectly priced orders or charge the corrected price, but you have a right to cancel your order upon being notified of the corrected price. We also reserve the right to update information on the Sites or Services and/or to make corrections, without notice. If necessary, we may also substitute a Product by informing you of the issue and giving you an opportunity to modify your order or selection.
    3.2 Availability and Pricing. FabFitFun reserves the right to change the prices and available Products and Services at any time. Any Service you have already paid for will not be affected by such change for the prepaid term of the Service. Quantities of some Products or Services may be limited and stock cannot be guaranteed. Products and Services offered for sale on the Sites are available for shipment only to the United States, Canada and the United Kingdom (UK), and all prices are quoted in U.S. dollars. The availability of Products and Services may be limited depending upon the shipment destination. Prices do not include any shipping and handling fees, foreign exchange or transaction fees, or any applicable taxes – any shipping and handling fees and taxes charged or collected by FabFitFun will be added to your order and will appear as a separate charge on your order receipt/confirmation.
    If applicable, currency exchange rates and foreign transaction fees are generally determined and applied by your payment provider and you acknowledge and agree that FabFitFun shall have no responsibility for refunding nor compensating you for amounts or expenses incurred in connection therewith.
    FabFitFun's pricing and savings comparisons are based on the most recent vendor-provided price. That price may not be the regular retail price or the prevailing market price, as prices vary among sellers and change over time.
    3.3 Purchasing Products and Services. The display of Products or Services on the Sites invites you to make us an offer to buy the Products or Services. Your order is an offer to buy the Products or Services, which we accept only by shipping the Products or providing the Services ordered. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer, and is subject to correction before shipment or provision of the Services in the event of inaccuracies, price corrections, Product unavailability, or for any other reason.
    3.4 Orders. We have the right to refuse or limit any orders, quantities, or Services. We will not be liable if a Product or Service is unavailable or if shipment is delayed. Except as otherwise specifically noted with respect to customers residing in the UK (“UK customers”), all orders are non-cancelable; we may grant or deny cancellation requests in our sole and absolute discretion.
    3.5 Returns. We do not allow returns or substitutions of Products or Services to FabFitFun or any FabFitFun brand partners and/or vendors. All sales are final. Additional or different rules apply to UK customers in respect of returns. UK customers, please click here for the Returns and Cancellation Policy applicable to your order.
    3.6 Damaged or Incomplete Shipment. If you receive a damaged or incomplete shipment of Products, or if you are otherwise unhappy with any Product, please contact us. We must receive notice of a damaged or incomplete shipment within two (2) weeks of receipt (as shown on the common carrier’s shipping information). Any refunds or replacements are made solely in our discretion. Additional or different rules apply to UK customers in respect of damaged or incomplete shipments which can be found here.
    3.7 Payment. We may use third party electronic payment processors and/or financial institutions (“Payment Processors”) to process financial transactions. You irrevocably authorize us, as necessary, to instruct such Payment Processors to handle such transactions and you irrevocably agree that we may give such instructions on your behalf in accordance with your requests as submitted on the Sites or Services. You agree to be bound by the terms and conditions of each applicable Payment Processor. In the event of conflict between these TOUS and the Payment Processor terms and conditions, these TOUS shall govern.
    You authorize us (and any Payment Processor) to charge your payment card or other payment method provided for all purchases you make, including regularly for Services including Memberships and other recurring transactions which are automatically charged on the date of purchase or the specified bill dates. We accept the forms of payment stated on the Sites. The bank issuing your credit or debit card may control when to release funds in the event of any order cancellation or refund. We reserve the right to use the payment information you provide us in connection with payments, to provide better service to you should you wish to use our Sites or Services again in the future and to protect us from fraud and other losses. Completion of a payment transaction is contingent upon: (a) you providing complete personal, account, transaction and any other information needed, (b) authorization of the payment by your credit or debit card company or other method of payment, and (c) acceptance of your payment. We may, in our sole discretion, cancel your payment at any time by providing notice to you through your contact information or by a notice when you attempt to make a payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (i) if you attempt to use the Sites or Services in breach of any applicable law or regulation, including but not limited to the card network rules or regulations; (ii) if you use the Sites or Services in breach of these TOUS or any other agreement with FabFitFun or its terms, policies or guidelines; (iii) if we suspect fraudulent, unlawful or improper activity regarding a payment; (iv) if we detect, in our sole discretion, that your payments or other transactions with us have excessive disputes, high reversal rates or present a relatively high risk of losses; or (v) if you fail to cooperate in an investigation or provide additional information when requested.
    3.8 Account Updater Services. You acknowledge and agree to our participation in various card brand (Visa, Master Card, Discover, and American Express) account updater services and other payment recovery programs. If you have recurring payments set up, your card issuer may provide us, through the card brands, with updated card information in the event your card is replaced or renewed. This service will automatically update the card number and/or expiration date on file with us if you have recurring payments set up. This service is provided to facilitate seamless process of charges you have authorized. If you wish to discontinue or opt out of the account updater services, please contact your card issuer. You may also be able to manage these settings directly within your card issuer account. Because we rely on timely information provided from your card issuer, your card information may not be updated in all cases. You should still make sure that all information within your FabFitFun account, including payment information, is up-to-date in order to permit recurring payments to continue to be charged to your account. In the event your payment is declined, we, or our service providers, may contact you to arrange for an alternative payment method to ensure your subscription is not interrupted.
    3.9 Transfer of Title and Risk of Loss/Damage. Title to and the risk of loss/damage of all Products passes from us to you at the time we deliver the products to the common carrier for shipment. For UK customers risk of loss/damage of all Products passes from us to you at the time the Products are delivered to you.
    By purchasing Products or Services on the Sites for shipment, you are asking us to engage a common carrier to deliver your order. In doing so, we are providing a service to and acting on behalf of you. We reserve the right to choose any and all procedures, packaging and common carrier of sold Products or Services. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments.
    3.10 Taxes and Shipping and Handling. Stated prices do not include any customs, duties, sales, use, value-added, excise, provincial, federal, state, local or other taxes. You are solely responsible for the payment of such taxes related to your purchase. We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase. We reserve the right to charge shipping and handling fees, as determined by FabFitFun in its sole discretion, to cover the cost of processing, handling and shipping orders, and which may include amounts incurred for customs, transport and duties as applicable. Any shipping and handling charges are not included in the stated prices and will be added to your order and will appear as a separate charge on your receipt/order confirmation.
    For Canadian and UK customers: We will pay the import taxes and duties in relation to your order on your behalf via the common carrier or directly to the governmental agencies. Nevertheless, as the importer of record, you are legally responsible for all taxes and duties and we will charge you for any payment of taxes or duties that we make on your behalf. We take no responsibility for any other taxes for which you may be liable. You hereby acknowledge and agree that we have your irrevocable authority to deal with all matters (including, but not limited to, disputes) with HM Revenue & Customs, Canada Revenue Agency (CRA), Canada Border Services Agency (CBSA), the Ministry of Finance (British Columbia), the Ministry of Finance (Saskatchewan), Manitoba Finance, and/or any similar or related governmental agency on your behalf in relation to any importations of the Products that we have arranged on your behalf. For the avoidance of doubt, this includes, but is not limited to, signing and filing any forms, claims and returns in relation to the importation.
    3.11 Personal Use Only. Products and Services are for your personal use only. You agree not to sell or resell any Products you purchase or otherwise receive from us. Except where prohibited by law, we may limit the quantity of Products or Services available for purchase. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or Products or Services to be provided to you, as we determine in our sole discretion.
    3.12 Products Shipped Outside of the U.S. For goods shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; manuals, instructions and safety warnings may not be in destination country languages; the goods and accompanying materials may not be designed in accordance with destination country standards, specifications, and labeling requirements; and the goods may not conform to destination country voltage (requiring use of an adapter or converter). Customers making purchases for shipment to non-U.S. addresses are the importer of record and are responsible for assuring the goods can be lawfully imported to the destination country and must comply with all laws and regulations of the destination country.

    4. MEMBERSHIPS

    4.1 Memberships. We offer various subscription membership plans (each, a “Membership”) which may include regular shipments of curated consumer product assortments and/or which enable access to other features and benefits available on the Sites. Our Memberships are also subject to additional terms and conditions, such as our FabFitFun Membership Terms, which may provide additional information regarding the Membership (such as term, delivery and billing frequency, pricing and other features of the Membership).
    4.2 MEMBERSHIPS CONTINUE INDEFINITELY. YOU ACKNOWLEDGE AND AGREE THAT EACH MEMBERSHIP, UNLESS OTHERWISE SPECIFIED, CONTINUES INDEFINITELY AND YOU WILL CONTINUE TO BE CHARGED UNLESS AND UNTIL YOU CANCEL YOUR MEMBERSHIP OR WE SUSPEND OR TERMINATE IT IN ACCORDANCE WITH THESE TOUS AND/OR THE SPECIFIC MEMBERSHIP TERMS.
    4.3 Cancellation Policy. Memberships may generally be cancelled any time, subject to these TOUS and the specific Membership terms. In order to cancel your Membership, you must do one of the following: (a) email or live chat us here, indicate that you wish to cancel your Membership, and follow the instructions that we send you in response; (b) log in to your FabFitFun account, navigate to the “My Account” link, click on the “Account Details” tab, choose “Cancel Subscription”, and follow the instructions; or (c) call us at 855-313-6267, indicate that you wish to cancel your Membership, and follow the instructions given.
    You must contact us and complete cancellation within the timeframes stated in the specific Membership terms to avoid further charges. There are no cancellation fees. Canceling your Membership does not provide you a refund for Membership payments already processed, nor does it stop a pending charge. Your cancellation will go into effect for the following billing cycle.
    Additional rules apply to UK customers – please click here for information on your right to cancel.

    5. Promotions and Credits

    5.1 Promotional Codes. FabFitFun may, from time to time and in its sole discretion, offer certain promotional codes for discounts applicable toward purchases on specified Sites. Promotional codes are nontransferable and are not redeemable for cash, credit, or toward previous purchases. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer, promotional discount, or gift cards and must be redeemed by the date published, if provided. Lost promotional codes cannot be replaced. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by FabFitFun at any time in its sole discretion.

    5.2 Credits

    5.2.1 Promotional Credit. From time to time and in its sole discretion, FabFitFun may offer you forms of credit that can be applied to certain transactions through one or more of the Sites, including sale-specific credit or other promotional credit (collectively, “Promotional Credit”). Promotional Credits are not issued in exchange for payment, are not redeemable for cash, and have no cash value. You may not sell, trade, copy or otherwise transfer Promotional Credits. Promotional Credits cannot be used to purchase gift cards. Promotional Credits will expire on the date specified, if any. If your Membership is terminated or expires, you will be deemed to have forfeited any unused Promotional Credits remaining on your account at the time of termination or expiration and FabFitFun reserves the right to cancel any remaining Promotional Credits, in its sole discretion. FabFitFun may revoke or change the terms applicable to Promotional Credits at any time, without prior notice to you.
    5.2.2 Credits for Amounts Paid. Certain types of credits issued will represent credit for amounts paid to FabFitFun. These credits will expire or decline in value, or not, in accordance with the laws of the purchaser’s location at the time of purchase.
    5.2.3. Other Credits. From time to time, in its sole discretion, FabFitFun may also offer different forms of credit in connection with specific programs or promotions. These credits may be treated differently than Promotional Credits and will be governed by the specific program or promotional terms.
    5.3 Gift Cards. From time to time, FabFitFun may offer gift cards (“Gift Cards”) for purchase that may be used to purchase Products and/or Services on fabfitfun.com. You must be a Member and agree to these TOUS to access, use, or redeem a Gift Card or any associated credit. In addition, Gift Cards are separately governed by the Gift Card Terms of Service (“Gift Card Terms”), which are incorporated herein by reference.
    FabFitFun Gift Cards do not expire and there are no fees associated with use of a Gift Card, unless otherwise specified in connection with certain promotional gift cards. Gift Cards may only be used to purchase Products and Services on fabfitfun.com, and are not exchangeable for any other Product or Service.
    Once a Gift Card is redeemed by the recipient, Gift Card and associated credit cannot be assigned or transferred. Gift Cards are not reloadable. Gift Cards and associated credit cannot be exchanged for cash except where required by law. Purchases of Gift Cards are final and not refundable. IF LOST OR STOLEN, GIFT CARDS CANNOT BE REPLACED.
    From time to time, we may offer limited availability promotional gift cards, credits, or codes that have different terms and conditions; please review those terms and conditions carefully as they may expire or have restrictions that are different.
    By purchasing, accessing, redeeming, or using a Gift Card or any associated credit, you agree that you have read, understood and agreed to be bound by these TOUS and the Gift Card Terms. If you do not agree to be so bound, you may not purchase, access, redeem, or use any Gift Card or associated credit.
    5.4 Additional Promotional Programs. From time to time, FabFitFun may make available, in its sole discretion, other promotional programs. Your participation in any such promotional program may be subject to additional terms and conditions specific to the promotional program. FabFitFun reserves the right to terminate, discontinue or cancel any promotional program at any time and in its sole discretion without notice and without further obligation to you, except as may be required by law.

    6. COMMUNICATIONS

    6.1 Consent to Communications. By entering into these TOUS, you expressly consent and agree to accept and receive transactional communications from FabFitFun or our service providers on our behalf, including via email, telephone calls, text messages, facsimiles and push notifications to any email address or telephone or mobile number provided to FabFitFun by you or on your behalf. You agree that communications may include prerecorded messages or may be generated by automatic telephone dialing systems. Standard text messaging charges applied by your mobile telephone carrier will apply to text messages you send or receive. Communications from FabFitFun and its affiliates may include but are not limited to operational communications concerning your account or use of the Sites or Services; updates concerning new and existing features at FabFitFun; marketing or promotional communications related to FabFitFun or third parties with whom we have a business relationship; and information concerning FabFitFun and industry developments.

    6.2 Updating Contact Information. You agree to keep your email address, phone number and other contact information current. From time to time we may need to send you important information, and we may do so by, among other means, sending it to your email address on file. Our sending of an email to your address on file constitutes notice under these TOUS. If you change or deactivate the phone number provided by you or on your behalf, you agree to notify us immediately at privacy@fabfitfun.com to help prevent us from inadvertently communicating with anyone who acquires your old number.

    6.3 Text Messaging Program

    6.3.1 Program Description. FabFitFun may offer a text messaging program (“Text Messaging Program”) through which it may deliver text messages to you using an automatic telephone dialing system. FabFitFun text messages are intended to provide you with information about our Products and Services as well as offerings from our brand partners. Text messages may include, without limitation, information about deliveries, membership features, sales, promotions, Products, sweepstakes and other marketing messages.
    6.3.2 How to Enroll. By providing your phone number, checking a box to sign up, sending specified key words or messages to our short or long codes or otherwise affirmatively opting-in to our Text Messaging Program, you expressly agree to receive marketing and non-marketing text messages from FabFitFun, including by autodialed means, to the telephone number you provide. Consent to the Text Messaging Program is not a condition of purchasing any goods or services.
    6.3.3 Opt Out. You may opt out of the Text Messaging Program at any time. To stop receiving text messages, text STOP to the short or long code from which you no longer wish to receive messages or reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any message you receive. You will then receive one final text message confirming that you have successfully opted-out from the Text Messaging Program.
    6.3.4 Message and Data Rates. Message and data rates or other charges may apply to each text message sent or received by you in connection with the Text Messaging Program. Roaming charges may also apply. Applicable rates and charges are determined by your mobile telephone carrier. If you have any questions about these charges, please reach out to your carrier. FabFitFun does not charge any additional fees for sending text messages. FabFitFun does not guarantee delivery of any messages to your mobile device and will not be responsible or liable for any issues relating to your network services.
    6.3.5 Your Mobile Telephone Number. You represent that you are the account holder for the mobile telephone number(s) that you provide to FabFitFun when you enroll in the Text Messaging Program. If you change your mobile telephone number, you are responsible for notifying us immediately at privacy@fabfitfun.com.
    6.3.6 Eligibility. To sign up for the Text Messaging Program, you must be a resident of the United States and 18 years of age or older. FabFitFun may require you to prove that you are at least 18 years of age.
    6.3.7 Changes to the Text Messaging Program. FabFitFun may modify or change the terms of the Text Messaging Program at any time without notice to you. This includes the types of messages and the frequency with which messages are sent to you. You agree to review these TOUS on a regular basis to ensure that you are aware of any changes. If you do not agree to any changes, you must opt out of the Text Messaging Program in accordance with the Opt-Out section above (Section 6.3.3).
    6.3.8 Termination of Text Messaging Program. FabFitFun may terminate or suspend the Text Messaging Program (or certain features thereof) or your participation in the Text Messaging Program for any reason including if FabFitFun believes you are in breach of these TOUS. FabFitFun will also terminate your participation in the Text Messaging Program if it reasonably believes that your phone number is reassigned or if your mobile telephone service terminates or lapses.

    7. INTELLECTUAL PROPERTY; THIRD-PARTY CONTENT AND SERVICES
    7.1 Intellectual Property Rights. All content on the Sites, or otherwise made available via the Sites, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Sites and/or Services (“Site Design”), and all software and other technology used to provide the Sites and/or Services (“Technology”), are owned by or licensed to FabFitFun and/or its affiliates. Content is provided to you for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Sites, Services, Content, Marks, Site Design and Technology. Using the Sites and/or Services does not give you any ownership of or right in or to any Content, Marks, Site Design or Technology.
    7.2 Third-party Content. The Sites may contain information and content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Sites may contain links to third-party websites. FabFitFun is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse nor shall we have any responsibility for the content on such third-party sites.
    7.3 Third-party Services. Third parties may offer their services directly to you through the Sites and Services. In such case, you may be required to agree to the third party’s terms of service and/or privacy policy in order to use the service. FabFitFun will not be liable in any way for the acts or omissions of such third party, the terms of service or privacy policy of the third party, its failure to adhere to its terms of service or privacy policy, or any loss, damages, liability or expenses (including legal fees) that you may incur arising from or related to such third party’s services or products.

    8. CONTRIBUTIONS TO FABFITFUN

    Any text, photographs, artwork, ideas, questions, reviews, comments, messages, communications with us or others, suggestions or other content that you submit, post to or disseminate using the Sites or otherwise provide to us are referred to as “User Content”. The following terms apply to User Content:
    8.1 License to FabFitFun. By sharing, submitting or uploading any User Content, you grant FabFitFun a non-exclusive, irrevocable, worldwide license to use your User Content. Subject to the license above, you retain ownership of User Content.
    8.2 Waiver of Moral Rights. You irrevocably waive and agree not to assert any rights, including any “moral rights”, that you have to prevent us from exploiting the rights granted in Section 8.1.
    8.3 Right to Name and Likeness. You also grant us the right to use and display, for any purpose, the name, photograph and any other biographical information that you submit with any User Content.
    8.4 Your Responsibility for User Content. You acknowledge and agree that you are solely responsible for all the User Content that you make available through the Sites or otherwise. Accordingly, you agree and confirm that: (1) you are at least 18 years of age or older; (2) you have all rights, licenses, consents and releases necessary to grant FabFitFun the required rights to use and/or disseminate any User Content; and (3) neither your User Content nor your posting, uploading, publication, submission or transmittal of this User Content or FabFitFun’s use of your uploaded User Content (or any portion thereof) on, through, or by the means of the Sites, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral, intellectual property, publicity, privacy, or any other right, or result in the violation of any applicable law or regulation.
    8.5 No Obligations Regarding User Content. We will not have any obligation to hold any User Content in confidence or compensate you or anyone else for its use. We have the right to remove, edit or access any User Content for any reason and in our sole discretion.

    9. INFRINGEMENT

    9.1 Infringement Notification. FabFitFun respects the rights of others and we expect users of our Sites and Services to do the same. These TOUS prohibit the infringement of the copyrights of others, and it is also our policy that we may remove, suspend, terminate access, or take other appropriate action against repeat offenders. We may also remove content that in our sole discretion appears to infringe the intellectual property rights of others.
    9.2 How to File an Infringement Notification. If you have evidence, know, or have a good faith belief that content residing on or accessible through our Sites infringes a copyright which you own or for which you are a designated agent, please send a notice of infringement by email or regular mail to FabFitFun’s designated Copyright Agent to receive notifications of claimed infringement by one of the following means:
    EMAIL: copyright@fabfitfun.com
    MAIL: FabFitFun Copyright Agent
    700 N. San Vicente Blvd.
    7th Floor- Green Building
    Los Angeles, CA 90069
    USA
    In any such notice, please include sufficient information to address the items specified below:
    • Identify the copyrighted work claimed to have been infringed. If multiple copyrighted works are covered by a single notification, provide a representative list of such works.
    • Identify the material that is claimed to be infringing or to be the subject of infringing activity. Include information reasonably sufficient to permit FabFitFun to locate the material. Please provide a URL and screenshots for each item. Include the specific asset(s) or page(s) that you claim to be infringing. Say “entire work” ONLY if all assets/pages in a collection/document are infringing.
    • Include details of your claim to the material, or your relationship to the material’s copyright holder.
    • Provide your full name, address, and telephone number should we need to clarify your claim.
    • Provide a working email address where we can contact you to confirm your claim.
    • If true, include the following statement: “I have a good faith belief that use of the copyrighted materials described above as the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.”
    • If true, include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the copyright owner to make this complaint.”
    • Sign the document, physically or electronically.

    10. WARRANTIES; DISCLAIMER

    10.1 YOUR RIGHTS MAY VARY. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO THE BELOW EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS.
    10.2 NO WARRANTIES. THE SITES, SERVICES AND PRODUCTS ARE PROVIDED “AS AVAILABLE” AND “AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. FABFITFUN DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FABFITFUN DOES NOT WARRANT THAT ANY PRODUCTS OR SERVICES WILL BE IN STOCK, SAFE, DEFECT-FREE, OR THAT PRODUCTS WILL NOT BE LOST OR DAMAGED IN SHIPMENT.
    10.3 USE OF SITES IS AT YOUR OWN RISK. FABFITFUN DOES NOT REPRESENT OR WARRANT THAT THE SITES, SERVICES OR COMMUNICATIONS SENT TO YOU WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL INFORMATION WILL BE ACCURATE OR COMPLETE. YOU AGREE THAT YOUR USE OF THE SITES AND SERVICES SHALL BE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF MATERIAL OR DATA. FABFITFUN MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE PRODUCTS, SITES OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS. FABFITFUN WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT OR SERVICES ON THE SITES, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES. PACKAGING, LABELS AND INSTRUCTIONS MAY CONTAIN MANUFACTURER DISCLAIMERS AND LIMITATIONS OF LIABILITY THAT APPLY TO THE PRODUCTS YOU PURCHASE. FABFITFUN MAKES ALL DISCLAIMERS IN THIS PARAGRAPH ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS.
    10.4 NO RESPONSIBILITY FOR THIRD-PARTY MATERIALS. FABFITFUN DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITES, AND FABFITFUN WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. FABFITFUN WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING.
    10.5 FOR UK CUSTOMERS ONLY: WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE THE LAW DOES NOT ALLOW US TO. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS; FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR FOR BREACH OF YOUR STATUTORY RIGHTS IN RELATION TO THE PRODUCTS INCLUDING THE RIGHT TO RECEIVE PRODUCTS WHICH ARE AS DESCRIBED AND MATCH INFORMATION WE PROVIDED TO YOU, ARE OF SATISFACTORY QUALITY AND ARE FIT FOR ANY PARTICULAR PURPOSE MADE KNOWN TO US. NOTHING IN THESE TOUS WILL AFFECT YOUR STATUTORY RIGHTS.

    11. LIMITATION OF LIABILITY

    11.1 YOUR RIGHTS MAY VARY. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU DEPENDING ON YOUR STATE OR COUNTRY OF RESIDENCE.
    11.2 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL FABFITFUN, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “FABFITFUN” FOR PURPOSES OF THIS SECTION 11) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITES, SERVICES OR PRODUCTS, EVEN IF FABFITFUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. FABFITFUN WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE OR PROFIT, OR LOSS OF GOOD WILL.
    11.3 OUR LIABILITY IS LIMITED. IN ANY EVENT, EXCEPT IN THE CASE OF FABFITFUN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND TO THE EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT(S) TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT, $100.
    11.4. FOR UK CUSTOMERS ONLY, THIS SECTION 11 SHALL NOT APPLY TO ANY LIABILITY WE HAVE FOR BREACH OF YOUR STATUTORY RIGHTS.

    12. INDEMNITY

    You agree to defend, indemnify and hold harmless FabFitFun, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including reasonable legal fees) incurred by or asserted against any of the Indemnified Parties arising out of, relating to or resulting from: (a) your violation of any provision of these TOUS; (b) your misuse of any Product purchased by you on the Sites; (c) any other party’s access and use of the Sites or Services with your unique username, password or other appropriate security code (if such codes are required to access the Sites or Services in the future); (d) our lawful and permitted use of your User Content in the context of the Sites or Services; (e) your misuse of the Sites or Services; (f) your negligence or other misconduct; or (g) the execution of these Terms and Conditions (collectively “Claims”). You agree to promptly notify FabFitFun of any Claims, cooperate with FabFitFun in defending such Claims, and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). We may, in our sole and absolute discretion, control the disposition of any such Claim, with all reasonable fees and costs arising therefrom being your sole responsibility. You may not settle any Claim without our express written consent.

    13. TERMINATION; SURVIVAL

    13.1 Modification of Sites and Services. We may, in our sole and absolute discretion modify, suspend or discontinue aspects of the Sites or the Services, in part or as a whole, temporarily or permanently, for any or no reason, at any time and without prior notice.
    13.2 Suspension or Termination. We may deny you access to all or part of the Sites or Services at any time for any reason (including if you violate these TOUS, the Membership Terms, or any other FabFitFun guidelines as determined in our sole and absolute discretion). If we terminate your access to the Sites or Services (unless due to breach of these TOUS, Membership Terms or other misconduct) we will, at our option, fulfill our obligations to you related to any order or Services prepaid at the time of termination or issue you a prorated refund.
    13.3 Effect of Termination. If you terminate your account, Membership, or if you otherwise cease to be a customer, you will remain liable under these TOUS for any purchases made prior to termination. If we terminate your right to access the Sites or Services, all rights you have to access the Sites or Services will immediately terminate and you agree to refrain from accessing the Sites or Services. Any provisions which by their nature are intended to survive termination shall so survive, including but not limited to Sections 1.3, 1.4, 2, 3.5, 7 through 12, 13.3, 14, and 15.

    14. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT

    YOU AND FABFITFUN MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY CLAIM OR DISPUTE AGAINST EACH OTHER ON AN INDIVIDUAL BASIS IN ARBITRATION, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 14 (“ARBITRATION AGREEMENT”). This will prohibit you and FabFitFun from bringing any class, collective, consolidated, or representative proceeding against each other, and will also prohibit you and FabFitFun from participating in or recovering relief under any current or future such actions brought by someone else. Arbitration is more informal than a lawsuit in court: there is no judge or jury in arbitration; discovery in arbitration may be more limited than discovery in litigation; and court review of an arbitration award is limited.
    You and FabFitFun mutually agree that any dispute, claim, or controversy between you and FabFitFun, its affiliates or their respective officers, directors, employees or representatives (collectively “FabFitFun” for purposes of this Section 14), whether based on past, present or future events, arising out of or relating in any way to: any of these TOUS and prior versions thereof; the Sites or Services; content or Products currently or previously available on or through the Sites or Services; your relationship with FabFitFun; your information provided to FabFitFun; the threatened or actual suspension, deactivation, or termination of your Membership, account or your access to the Sites or Services; payments made by you or payments made or allegedly owed to you; any promotions, credits, or other offers; and/or any other federal, state, and local statutory and common law claims (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section 14. All disputes concerning the arbitrability of a Covered Matter (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) will be decided exclusively by the arbitrator, and not any federal, state, or local court or agency, except as expressly provided herein. Notwithstanding the foregoing, all disputes related to the scope, applicability, enforceability, revocability, or validity of the Prohibition of Class Actions and Non-Individualized Relief (see Section 14.2 below) shall be resolved by a court and not an arbitrator.
    YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOU AND FABFITFUN ARE EACH WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ANY AND ALL COVERED MATTERS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT.
    14.1 Informal Resolution. The parties agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. The parties therefore 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 any Covered Matter. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The informal dispute resolution conference shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal dispute resolution conference, unless mutually agreed to by the parties. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify us that you intend to initiate an informal dispute resolution conference, email legal@fabfitfun.com, providing your name, telephone number, and username (if your dispute relates to an account), and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration, and the arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures. If an arbitration is dismissed because a party failed to comply with these informal dispute resolution procedures, the parties agree that the party that failed to comply with the informal dispute resolution procedures shall be responsible for paying any arbitration filing fees and costs incurred by the other party. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
    14.2 Prohibition of Class Actions and Non-Individualized Relief. You acknowledge and agree that you and FabFitFun are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class, collective, consolidated or representative proceeding. Further, unless both you and FabFitFun otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class, collective, consolidated or representative proceeding. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph 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. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and FabFitFun 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 applicable law (after applying federal preemption principles) allows parties to waive their right to seek a public injunction, then the parties waive their right to seek a public injunction.
    This section 14.2 does not prohibit settlements on a class-wide, collective, consolidated, or representative basis.
    14.3 Exception to Arbitration. Each party will retain the right to bring an individual action in a small claims court in the United States if the claim and the parties are within the jurisdiction of such small claims court. Further, this Arbitration Agreement does not extend to disputes that cannot be arbitrated-or that cannot be subject to a pre-dispute arbitration agreement under applicable law, after applying federal preemption principles.
    14.4 Arbitration Rules and Governing Law. These TOUS evidence a transaction involving interstate commerce, and the Federal Arbitration Act (“FAA”) applies in all cases and governs the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. It is your and FabFitFun’s intent that the FAA and ADR Services’ Arbitration Rules will preempt contrary state laws to the fullest extent permitted by law. If for whatever reason the rules and procedures of the FAA cannot apply, Delaware law governing arbitration agreements shall apply, and if Delaware law cannot apply, then the arbitration law of the State or other jurisdiction of residence of the user will apply.
    The arbitration of any Covered Matter will be administered by ADR Services, Inc. and shall be subject to ADR Services’ most current version of its Arbitration Rules, available as of January 29, 2021 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 absent a mutual selection, a court may select the arbitral forum under FAA Section 5. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute.
    14.5 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration. The 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. For any party bringing an Arbitration Demand that is represented by counsel, such counsel 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.
    The arbitrator will be either an individual retired judge or attorney licensed to practice law in any of the states of California, Delaware, New York, or the state where the arbitration is conducted, and will be selected by the parties from ADR Services’ roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty (30) days of delivery of the Demand for Arbitration, then ADR Services will appoint the arbitrator in accordance with its rules.
    14.6 Arbitration Location and Procedure. The arbitration will be conducted either: (a) in the U.S. county where you reside; (b) in Los Angeles County; or (c) via phone or video conference. If the claim does not exceed $5,000, then the arbitration will be conducted solely on the basis of documents you and FabFitFun submit to the arbitrator, unless the arbitrator finds there is substantial justification and good cause for a live hearing. If the claim exceeds $5,000, the right to a hearing will be determined by the ADR Services’ Arbitration Rules. Subject to the ADR Services’ Arbitration Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. 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.
    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 Delaware state or federal court or in the federal court in the U.S. county where you reside, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
    14.7 Arbitrator’s Decision/Award. The arbitrator will render an award within the time frame specified in the ADR Services Rules. For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, and no decision or award in any arbitration between you and FabFitFun (whether or not the relief sought is over $5,000) shall have a binding or preclusive effect in any other arbitration or judicial proceeding between FabFitFun and a different user. The arbitrator shall be bound by rulings in prior arbitrations involving the same FabFitFun user to the extent required by applicable law.
    The arbitrator’s award shall be final and binding. Judgment on the award rendered by the arbitrator may be entered or confirmed in any Delaware state or federal court or in the state or federal court in the U.S. county where you reside. TO THE EXTENT PERMITTED BY LAW, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S); RELIEF AWARDED CANNOT AFFECT OTHER USERS.
    14.7.1 Arbitration Appeal. If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of June 2003 at https://www.jamsadr.com/appeal/.
    14.8 Costs of Arbitration. The fees that shall apply to arbitrations administered by ADR Services are set forth on ADR Services’ website, available as of November 5, 2021 at https://www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services, Inc.’s Mass Consumer Non-Employment 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, and if required by applicable law, FabFitFun 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 in the location where the arbitration is conducted. 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.
    Any finding that a claim, counterclaim, or defense was filed for purposes of harassment or otherwise violates the standards set forth in Federal Rule of Civil Procedure 11(b) shall entitle the other party to seek their attorneys’ fees, costs, and expenses. 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 by such party after the offer was made.
    14.9 Forum If Arbitration Does Not Apply. Unless you and we agree otherwise (and except as described in Section 14.3 above), in the event that this Arbitration Agreement is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Arbitration Agreement in accordance with Section 14.12 below, or as a result of a decision by the arbitrator, you and FabFitFun agree that any claim or dispute that has arisen or may arise between you and FabFitFun must be resolved exclusively by a state or federal court located in Los Angeles County, California. You and FabFitFun agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
    14.10 Severability. Except as otherwise provided in Section 14.2, 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. If, however, the Prohibition of Class Actions and Non-Individualized Relief (Section 14.2) is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor FabFitFun is entitled to arbitration of such claim or dispute. Instead, such claims and disputes will then be resolved in court as provided by Section 14.9.
    14.11 Future Amendments to the Arbitration Agreement. Notwithstanding any provision in the TOUS to the contrary, you and we agree that if we make any material amendment to this Arbitration Agreement in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against FabFitFun prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Arbitration Agreement that have arisen or may arise between you and FabFitFun. If you do not agree to the amended terms, you may opt out in accordance with Section 14.12 below or you may close your account within thirty (30) days of the posting or notification of the amended terms and you will not be bound by the amended terms.
    14.12 Opt-Out. IF YOU ARE A NEW FABFITFUN USER, YOU CAN CHOOSE TO REJECT THIS ARBITRATION AGREEMENT (“OPT-OUT”) BY EMAILING US AN OPT-OUT NOTICE TO ARBITRATIONOPTOUT@FABFITFUN.COM (“OPT-OUT NOTICE”) OR VIA US MAIL TO: FABFIFTFUN, INC., 700 N. SAN VICENTE BLVD., 7th FLOOR- GREEN BUILDING, LOS ANGELES, CA 90069, USA. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TOUS FOR THE FIRST TIME. IF YOU ARE NOT A NEW FABFITFUN USER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TOUS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
    In order to opt-out, you must include in your Opt-Out Notice your name, address (including street address, city, state, and zip code), and email address(es) associated with your Account(s) to which the opt-out applies and an unaltered digital image or copy of a valid driver’s license or government-issued ID which matches the name on your account. 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. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out, all other parts of these TOUS will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
    14.13 UK CUSTOMERS ONLY:
    14.13.1 Informal Resolution. If you have any dispute with us, we ask that you contact us in the first instance at legal@fabfitfun.com before taking any formal action.
    14.13.2 Applicable Law. United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of Delaware, without regard to conflict of laws principles, will govern all Covered Matters; provided, however, that if for whatever reason Delaware law cannot apply, then the law of the state or other jurisdiction in which the user resides shall be applied.
    14.13.3 Exception. Each party will have the right to seek relief in a small claims court in the United States if the claim and the parties are within the jurisdiction of such small claims court.
    14.13.4 Mandatory law. Sections 14.13.2 and 14.13.3 shall not apply to the extent the law applicable in your country of residence requires (i) the application of another law (including any mandatory laws applicable in your country of residence); and/or (ii) claims to be brought in the competent courts of your country of residence, and, in each case, this cannot be varied.

    15. GENERAL TERMS

    15.1 Applicable Law. United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of Delaware, without regard to conflict of laws principles, will govern these TOUS and all Covered Matters (as defined in Section 14); provided, however, that if for whatever reason Delaware law cannot apply, then the law of the state or other jurisdiction in which the user resides shall be applied. For clarification, this provision shall not be construed as making a law or statute apply extraterritorially if it otherwise would not so apply.
    15.2 Force Majeure. Under no circumstances shall FabFitFun or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
    15.3 No Waiver; Severability. No waiver of any term of these TOUS will be binding unless in writing, no waiver of any term of these TOUS will be deemed a further or continuing waiver of such term or any other term, and the failure of FabFitFun to exercise or enforce any right or remedy in these TOUS does not waive that right or remedy. Except for the Arbitration Agreement contained herein, the severability of which is addressed in Section 14.10, if any provision of these TOUS is found to be invalid, the parties agree that the adjudicator should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these TOUS will remain in full force and effect.
    15.4 Modifications; Updates. From time to time, we may modify or revise these TOUS by posting such revisions through the Sites or by emailing a link to the revised TOUS to the email address listed on your account. Revisions will become effective 30 days after posting or notification, whichever occurs first, and you agree to periodically review the TOUS to learn about these revisions. If you do not accept and agree to the revised TOUS, you must terminate your account by emailing TOUStermination@fabfitfun.com within 30 days of posting or notification of the revised TOUS. If you terminate your account in accordance with this section, at FabFitFun’s option, you will either receive a prorated refund for any prepaid Services or FabFitFun will fulfill the balance of your prepaid Services under the predecessor TOUS. If you do not terminate your account in accordance with this section, you are accepting and agreeing to the revised TOUS. If for any reason the updated TOUS are found to be inapplicable to you, you will continue to be bound by the most recent predecessor TOUS applicable to you.

    15.5 Miscellaneous

    15.5.1 These TOUS (and all policies, terms and conditions referenced herein) constitute the entire agreement between you and FabFitFun and govern your use of the Sites, Services and Products provided by FabFitFun, and supersede any prior agreements between you and FabFitFun on the subject matter. You also may be subject to additional terms that may apply when you enter into a contract of sale with us, or you use certain FabFitFun Sites or Services or third-party content, links or websites.
    15.5.2 These TOUS, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These TOUS, and any rights or licenses granted hereunder, may be assigned or delegated by FabFitFun without restriction.
    15.5.3 These TOUS bind and inure to the benefit of each party and the party’s successors and permitted assigns.
    15.5.4 These TOUS may not be modified by an oral statement by a representative of FabFitFun. A party’s failure or delay in exercising any right, power or privilege under these TOUS will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power, or privilege under these TOUS.
    15.5.5 No agency, partnership, joint venture or employee-employer relationship is intended or created by these TOUS.
    15.5.6 You agree to comply with all applicable laws in your use of the Sites and Services.
    15.5.7 You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form.
    15.5.8 These TOUS will not be construed against the drafter.
    15.5.9 “Include(s)” or “including” means, respectively, “include(s), without limitation,” or “including, without limitation,” unless expressly stated otherwise.
    15.5.10 If you are using the Sites or Services for or on behalf of the U.S. or any other government, your license rights do not exceed those granted to non-government consumers.
    15.6 Use Outside the United States of America. The Sites are controlled and offered by FabFitFun from the United States of America for use by customers in the United States, Canada and certain parts of Europe. FabFitFun makes no representations that the Sites or Services are appropriate for use in locations outside of the United States. Those who access or use the Sites and Services from other locations do so at their own risk and are responsible for compliance with local law.
    15.7 Notices and Electronic Communications. You hereby consent to receiving and transacting with us by electronic means. We may deliver notices to you by e-mail, posting a notice on the Sites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address:
    FabFitFun
    700 N San Vicente Blvd.
    7th Floor, Green Building
    Los Angeles, CA 90069
    USA
    Or legal@fabfitfun.com