FabricShop Terms of Service Agreement

These Terms of Service were revised on December, 31, 2014. These Terms of Service ("Agreement", "Terms of Service" or "Terms") is entered into between you ("Customer" or "You") and Crafting Solutions, LLC d/b/a FabricShop, a New Jersey limited liability corporation ("FabricShop"), and is made effective on the date of electronic acceptance. Your continued use of the FabricShop site and/or the Services (as defined below) constitutes your acknowledgment and acceptance of these revised terms.

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Overview. This Agreement sets forth the terms and conditions that govern your use of the FabricShop website (the "Site") and the products and services (collectively, the "Services") offered by this site, and is in addition to and not in lieu of any specific terms and conditions that apply to your purchase of a particular Service. In the event that You provide a purchase order or other ordering document to facilitate your purchase, such document is incorporated by reference only to the extent that it identifies the Services to be purchased, and all other terms and conditions included in such document are hereby rejected by FabricShop.
   
   Your electronic acceptance and/or use of the Services signifies that You have read, understood and agreed to be bound by the terms and conditions of this Agreement as well as any policies posted on this website and that by such acceptance and/or use of the Services You agree that any previous agreements between You and FabricShop will be terminated and superseded by this Agreement. You acknowledge and agree that FabricShop's acceptance of this Agreement and the provision of Services are performed at FabricShop's offices in Clifton, New Jersey, USA.
   
   FabricShop, in its sole discretion, may refuse to provide the Services to any one at any time and for any reason. If FabricShop exercises this right, FabricShop will not charge You for the Services and/or refund You for the amounts paid for the Services during the period that FabricShop invokes its right to deny Service.
   
   FabricShop, in its sole and absolute discretion, may change or modify this Agreement, the corporate policies and/or Service Specific Terms (as defined below) which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of: (i) our email notification to You advising You of such changes or modifications; (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Last Revised" date at the top of this Agreement; or (iii) your continued use of the Services after FabricShop posts the revised Agreement.
   
   FabricShop may offer a mobile application that allows you to access your online store through your mobile device. If You access your online store via a mobile application, You agree that all the terms of this Agreement shall govern such access.
2. Eligibility, Representative, Account Ownership. The Services found at this Site are available only to Customers who can form legally binding contracts under applicable law. By using the Services found at this Site, You represent and warrant that You are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. You further represent and warrant that You are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom FabricShop is legally prohibited to provide the Services.
   
   Customer shall designate a point of contact for Customer's account (a "Representative"). Customer's Representative shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that FabricShop may rely on representations made by Customer's Representative. Customer may change its Representative at any time by giving written notice to FabricShop in accordance with the notice provisions of this Agreement. FabricShop is under no obligation to accept instructions from anyone other than the Representative. Notwithstanding the foregoing, FabricShop shall not be liable for any loss or damage resulting from FabricShop's reliance on any instruction, notice, document or communication reasonably believed by FabricShop to be genuine and originating from an authorized representative of Customer's corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, FabricShop reserves the right (but not the obligation) to require additional authentication from Customer. In order to permit FabricShop to protect the quality of its products and services, You hereby consent to FabricShop staff being able to access your account and records on a case-by-case basis to investigate complaints or other allegations or abuse.
3. Dispute of Site or Account Ownership. The entity or person creating the account and designated as the owner shall be deemed the account owner. For security reasons, only the account owner or Representative designated by the account owner shall be allowed to make changes, cancellations, or designate a new Representative. Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site, store or account. FabricShop is not obligated to and will not resolve any such disputes. If multiple persons are claiming ownership of or rights in a site, store or account, then FabricShop will, to the extent of its knowledge and ability, notify said persons of the dispute and demand that said persons promptly, conclusively and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves FabricShop of all liability or obligations concerning the dispute. If the disputing persons fail to resolve the dispute within what FabricShop, in its sole judgment, deems to be a reasonable time, then FabricShop, at its sole option and without any obligation to do so, may suspend or terminate the account until such persons resolve said dispute and reach certainty regarding ownership of or rights in said site, store and/or account. The person or persons conclusively and finally determined by court order or settlement agreement to be the rightful owner(s) or interest holder(s) of said site, store and/or account shall be obligated to pay all amounts due and comply with any transfer policy, if required, to transfer ownership of the site, store and/or account to the rightful owner. Customer must contact FabricShop to transfer ownership of an account.
4. Failure of Payment. Failure of the rightful owner of said site, store and/or account to timely pay in full all of said amounts shall be deemed a breach of these Terms and shall subject the account to immediate termination.
5. Recommendations. FabricShop personnel may from time to time recommend third-party software or other products and services for your consideration. FABRICSHOP MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM FABRICSHOP, INCLUDING THE COMPATIBILITY OF SUCH PRODUCTS AND SERVICES WITH FABRICSHOP SOFTWARE. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
6. Software Updates. From time to time, FabricShop may update the software associated with a Service for many reasons, including but not limited to, (a) to maintain PCI compliance; (b) to fix bugs or problems in previous versions; and/or (c) to enhance functionality or features. FabricShop makes no warranty that such updates will not affect your use of the Services or introduce new but unknown bugs into the software. Further, FabricShop shall not be responsible for the effect an update has on any code not provided by FabricShop and any modifications to such code to restore functionality shall be Customer's sole responsibility and cost.
   
   Where support is provided by FabricShop, FabricShop will provide technical support for the most recent update or version of the Software associated with a Service. From time to time, FabricShop may provide support for an older version(s), however FabricShop reserves the right to suspend or terminate such support at any time, with or without notice.
7. Use of Customer's Name and Trademarks. Customer hereby grants FabricShop a non-exclusive right and license to use Customer's name and such of Customer's trade names, trademarks, and service marks (collectively, "Customer's Marks") as are listed on User Content (as defined below) or otherwise provided to FabricShop in connection with this Agreement: (a) on FabricShop's own websites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing FabricShop's Services, and (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use FabricShop's trade name, trademarks and service marks (collectively, "FabricShop's Marks") in advertising and publicity in conjunction with the offering of User Content via FabricShop, provided that Customer shall submit copy to FabricShop for its prior written approval, and provided further that under no circumstances shall such use imply that FabricShop endorses, sponsors, certifies, approves or is responsible for User Content.
8. Use of User Content. Some of the features of this Site or the Services found on this Site may allow Customer to view, post, publish, share, store or manage (a) ideas, opinions, recommendations, or advice ("User Submissions"), or (b) literary, artistic, musical or other content, including but not limited to, photos and videos (together with User Submissions, "User Content"). By providing User Content to FabricShop via any method (e.g., site submission, email, survey responses, etc.), You represent and warrant to FabricShop that (i) You have all necessary rights to distribute User Content via this Site or via the Services, either because You are the author of the User Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) You do not violate the rights of any third-party.
   
   The provisions in this Section apply specifically to FabricShop's use of User Content posted to FabricShop's corporate websites or submitted directly to FabricShop. The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) You may have in content posted to your hosted websites.
   
   You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
   
   You acknowledge and agree that:
   
   
   1. Your User Submissions are entirely voluntary;
   2. Your User Submissions do not establish a confidential relationship or obligate FabricShop to treat your User Submissions as confidential or secret;
   3. FabricShop has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to You or to anyone else for any intentional or unintentional use of your User Submissions; and
   4. FabricShop may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
   FabricShop shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions provided to FabricShop by any method, and shall be entitled to the unrestricted use and dissemination of any User Submissions provided for any purpose, commercial or otherwise, without acknowledgment or compensation to You or to anyone else.
9. Sublicense. Customer may not sublicense or resell any of FabricShop's Services to any third parties without the prior written permission of FabricShop. By way of example and not limitation, Customer may not provide Web Hosting services through its FabricShop Services to any third-party without FabricShop's prior written permission. Any attempts to do so would be considered a material breach of this Agreement and grounds for termination of this Agreement.
10. Fees and Payment.
    
    
    1. Fees. In consideration of the Services, Customer will pay to FabricShop all fees due according to the prices and terms listed on the website. To the extent permitted by applicable law, neither EU Directive 97/7/EC nor Regulation 13(1)(c) of the UK Consumer (Distance Selling) Regulations 2000 will apply to Customer sales from FabricShop. Customer agrees that FabricShop may delay beginning performance of any Service for this Refund Period and that any performance begun prior to the expiration of the Refund Period will only be done with Customer's agreement to waive such Refund Period.
       1. All charges must be paid in advance according to the then current prices applicable to the Services. All sales are final and FabricShop offers no partial or full refunds of any kind on any purchase unless otherwise expressly noted, even if your Services are suspended, terminated or transferred before the end of the Services.
       2. FabricShop expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to You. Changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.
       3. FabricShop may, at its sole option, extend payment terms to You. Should FabricShop extend payment terms, You agree that Your obligation to pay FabricShop for the Services ordered begins on the date of purchase and does not end until paid in full, even if the Services are abandoned, suspended, terminated or transferred prior to such time.
    2. Payments. All recurring charges will be due on the applicable period anniversary date of your initial signup. It is Customer's obligation to review all periodic charges for accuracy. Upon entering this Agreement, You choose to pay by direct charge to a credit or debit card and receive an electronic receipt for each transaction processed by FabricShop. If You choose to pay by credit or debit card, You thereby authorize FabricShop to charge your credit or debit card to pay for any charges that may be attributed to Your use of the Services. You agree that FabricShop may accumulate any supplemental charges, incurred by You in your use of the Services ("Supplemental Charges") until such charges exceed $10 and then charge your account. You must notify FabricShop of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit FabricShop from charging your account.
    3. Late Payments, Payment Defaults. If You fail to pay any fees and taxes within seven (7) days from applicable due date for credit card payments, the Customer account shall be put into a suspension period of an additional seven (7) days. During this time Customer access to the services may be restricted. If during this seven (7) day suspension period, Customer provides valid payment information and pays the balance due in-full, service will be reinstated upon the processing of the new payment information. In addition, your failure to fully pay any fees and taxes within fourteen (14) days after the applicable due date will be deemed a material breach of this Agreement, justifying FabricShop's suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstatement of Services. Any such suspension or termination would not relieve You from paying past due fees plus interest. FabricShop attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts as well as a reactivation fee. Accounts past due over 30 days cannot be reactivated unless agreed to by FabricShop in its sole discretion. You must sign up for new service and pay the full setup fees associated with the plan You choose. If a payment is returned or rejected by FabricShop's bank, or incurs additional costs for FabricShop (e.g., bank fees) for any reason, then Customer may be charged a service fee of $50.00 and be required reimburse all such fees and costs incurred by FabricShop, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid.
    4. Billing Policies and Cycles. Unless otherwise agreed to in writing by FabricShop, we offer billing via credit card or debit card charge only. All initial fees must be paid prior to service setup. These fees may include service setup fees and first period's service charge. FabricShop provides customers several billing cycles from which to choose when signing up for service, including, but not limited to (a) monthly billing, (b) quarterly billing, and (c) annual billing. FabricShop will bill Customer, in advance, on a recurring basis according to the billing cycle selected by the Customer. The Customer may change the billing cycle using the online control panel at any time prior to the next billing period. The Customer understands that FabricShop has no obligation to refund any prepayment made by the Customer should the customer choose to change the billing cycle after a payment has been made. Our billing cycle begins on the day we setup your account. All Services will automatically renew for successive same duration terms unless You provide notice to FabricShop of your intent not to renew at least 30 days prior to the expiration of a term. All fees charged for additional Services purchased during the term of a plan and any additional fees and expenses incurred during such term shall be billed and paid in accordance with these Terms.
       
       Note: All billing correspondence (invoices, notifications, etc.) is communicated via email. It is crucial that You maintain a current email address with us.
    5. Disputes. Failure to dispute a charge within three (3) months following such charge shall constitute Customer's agreement that all charges are valid and Customer agrees to waive any claims it may have had regarding such charge.
    6. Cancellation. To ensure that You are not billed for another period of service, You must cancel your account no later than 10 days before your billing cycle due date. If Customer defaults under this Agreement, Customer agrees to pay FabricShop its reasonable expenses, including attorneys' fees, in house legal expenses and collection agency fees, incurred in enforcing its rights. Cancellations must be made via phone at (973) 239-5515.
    7. Taxes. All fees charged by FabricShop for the Services are exclusive of all taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on FabricShop's net income. If FabricShop is required to pay directly any such taxes, Customer will, upon receipt of FabricShop's invoice, promptly reimburse FabricShop for any such taxes paid by FabricShop.
11. Acceptable Use Policy.
    
    
    1. Acceptable Use Policy. FabricShop maintains a strict Acceptable Use Policy ("AUP"). In order to maintain our system integrity and resources, FabricShop expects our customers to act responsibly. When You use any FabricShop Services, in any form, You automatically agree to the following conditions:
       
       FabricShop maintains high standards and values, and expects the same from its customers. FabricShop reserves the right to suspend or cancel Customer's access to any or all Services provided when FabricShop decides, in its sole discretion, that the account has been inappropriately used. In short, FabricShop may decline Services because of: adult material (as described below) or illegal content; use of the Services in a manner in which it was not intended by FabricShop; and use of the Services in a manner which does not conform to FabricShop's values.
    2. FabricShop reserves the right to place hyperlinks to "http://www.fabricshop.net" at the bottom/footer of your website.
    3. Adult Material Policy. FabricShop maintains a strict No Adult Material Policy. Any presentation of material that is pornographic or obscene in nature, as determined in FabricShop's sole discretion, shall not be allowed. By way of example and not limitation, "Adult Material" includes any of the following: any photos or videos showing frontal nudity on either men or women; any photos or videos showing any sexually explicit nudity; any audio clips or text containing sexually explicit material; any sites with direct links to other sites containing such material; and any site engaged in the sale of sexually explicit items.
    4. If your site contains material that You are unsure about, please let us know before placing the order.
    5. End Users to Comply with AUP. Customer acknowledges that FabricShop may terminate an end user's access to Customer's website for noncompliance with FabricShop's AUP. FabricShop may thus terminate such end user's access to Customer's Content even if the end user has not violated Customer's own terms and conditions of use of its website. FabricShop acknowledges that Customer may terminate a User's access to Customer's Content for noncompliance with Customer's terms and conditions.
12. PCI Guidelines. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (PCI DSS) and the Payment Application Data Security Standards (PA DSS), as applicable. You agree that you will use only PCI compliant service providers in connection with the storage, or transmission of Card Data defined as a cardholder's account number, expiration date, and CVV2. You must not store CVV2 data at any time.
13. Your Warranties and Representations to FabricShop. You warrant, represent, and covenant to FabricShop that: (a) You are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) You possess the legal right and ability to enter into this Agreement; (c) You will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) You will be financially responsible for the use of your account; (e) You have acquired or will acquire all authorization(s) necessary for hypertext links to third-party websites or other content; (f) You have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third-party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
14. Indemnification. You will defend, indemnify and hold harmless FabricShop and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (collectively, an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence or willful misconduct; (iii) your improper or illegal use of the Services; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by FabricShop; or (v) any claim relating to your services or products, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secret or non-proprietary right of a third-party (including, without limitation, defamation, libel or violation of privacy or publicity).
15. DISCLAIMER OF WARRANTIES. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND ON THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND ON THIS SITE ARE PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS." FABRICSHOP, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FABRICSHOP, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ABILITY OF THE SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (II) THE ACCURACY, COMPLETENESS OR CONTENT OF THIS SITE, (III) THE ACCURACY, COMPLETENESS OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (IV) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND FABRICSHOP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
    
    IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY FABRICSHOP, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), WHETHER DIRECTLY OR INDIRECTLY, WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE. USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
    
    THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND ON THIS SITE.
16. LIMITATION OF LIABILITY. FABRICSHOP ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF PROFITS, LOST REVENUE OR PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF FABRICSHOP IS AWARE OF THE POSSIBILITY THEREOF. FABRICSHOP SHALL IN NO EVENT BE LIABLE IN THE AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY FABRICSHOP FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
    
    IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
    
    THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND ON THIS SITE.
17. Risk of Loss. At all times You bear all risk of loss and damage to your website and all of your content. You are responsible to maintain the confidentiality of your passwords and account information. You are responsible for all usage and charges incurred with respect to your account or in connection with your website content displayed, transmitted through or stored on FabricShop's server.
18. Term and Termination. This Agreement shall be in effect for the term as specified by Customer when Customer registers for the Services ("Initial Term"). This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as specified in the Initial Term, unless Customer changes the Renewal Term using the online control panel. You may terminate your right to access and use the Service only by logging in to the Site and following the applicable instructions. For security reasons, FabricShop requires that You authenticate any cancellation, including paying the stated termination fee where applicable (e.g., Merchant Services). Failure to do so will result in the cancellation request not being processed and You will be liable for all recurring fees until such authentication is complete. Please note that a cancellation of a particular Service may not cancel all Services associated with your account.
    
    FabricShop may terminate this Agreement and/or your right to access and use the Service, in whole or in part, at any time and for any reason. FabricShop reserves the right, but not the obligation, to cancel or suspend your Service if your site(s) causes a sudden significant increased draw on system resources (e.g., a DDOS attack) that, in FabricShop's sole opinion, impairs its ability to provide Services to other customers. FabricShop also reserves the right to immediately terminate this Agreement and/or your right to access and use the Service, in whole or in part, if FabricShop finds that You have been abusive to FabricShop employees.
    
    Upon expiration or effective termination of the Service by either party for any reason, (a) FabricShop will cease providing the Service, (b) You will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise, unless FabricShop terminates such Service without cause, and (c) any outstanding balance for your usage of the Service through the effective date of such termination or expiration will be immediately due and payable in full.
19. Proprietary Rights Notice. The Service, which includes but is not limited to all intellectual property rights in the Service, are and shall remain the property of FabricShop or its licensor (as applicable). All rights not expressly granted to You in this Agreement are hereby expressly reserved and retained by FabricShop and its licensors (as applicable). Without limiting the generality of the foregoing, You shall not (and shall not allow any third-party to): (a) use the Service outside of the scope of the limited license herein granted, including but not limited to use for the sole purpose of obtaining a competitive advantage against FabricShop; (b) sublicense, distribute, copy, modify, adapt, translate or prepare derivative works of the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of FabricShop; (d) register, attempt to register or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with FabricShop (or any of its affiliates or licensors); (e) reverse engineer, disassemble or decompile any software or otherwise attempt to discover any source code or trade secrets related to the Service, in any manner, except as permitted by applicable law; or (f) remove, obscure or alter any notice of copyright, trademark or other proprietary right appearing in or on any item included with the Service.
20. Security. Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Services is to allow end users easy access to Customer's Content. FabricShop will take those precautions FabricShop deems reasonable in its sole discretion to secure Customer's website from attack, but FabricShop makes no warranty that there will be no outages or interruptions of service, or that Customer's Content will be secure against attack of any form by end users or other third parties.
21. Prohibited Practices. FabricShop shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and FabricShop shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, FabricShop may, in its sole discretion at any time, without notice to Customer, remove from public view, disconnect or terminate the hosting of any of Customer's Content or other Content that FabricShop deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides, the Content contains adult material (as described above) or activities or any Content that allegedly violates the law, rules or regulations of any country or jurisdiction thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; (iii) Customer's noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement; or (iv) claims made by third parties against FabricShop that Customer or any of its end users has engaged in one or more of the above practices.
22. No Solicitation. Customer agrees Customer will not approach any employees of FabricShop and its affiliates with proposals to hire them as its own employees or contractors. If You hire any of FabricShop's employees, You agree to pay FabricShop, for each employee hired, the greater amount of three (3) years' salary for that employee as You are to pay such employee, or $200,000.
23. Notices. Any notice or other communication ("Notice") required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail or certified or registered mail, postage prepaid, return receipt requested, to the address on the Site for FabricShop, or to the address provided in the order form submitted with the payment for Customer. A Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given 24 hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given 48 hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given. Either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.
24. Intellectual Property Rights.
    
    
    1. Your License Grant to FabricShop. You hereby grant to FabricShop a non-exclusive, worldwide and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to You under this Agreement. You expressly (a) grant to FabricShop a license to store, cache or archive materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such storing, caching and archiving is not an infringement of any of your intellectual property rights or any third-party's intellectual property rights.
    2. FabricShop Materials and Intellectual Property. All materials including, but not limited to any computer software (in object code and source code form), data or information developed or provided by FabricShop or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment or processes used by FabricShop to provide the Services to You including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of FabricShop or its suppliers, including, but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed or disclosed by FabricShop during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling and creating derivative works based on any such software is expressly forbidden except as expressly permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyrights or trade secret rights caused or encouraged by failure to abide by the terms of this Agreement.
25. Trademarks. You hereby grant to FabricShop a limited right to use your trademarks, if any, for the limited purpose of permitting FabricShop to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted hereunder shall terminate upon termination of this Agreement.
26. Customer Acts; Warranties. FabricShop is not responsible in any manner for any nonconforming Services to the extent caused by You or your customers. In addition, FabricShop is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond FabricShop's reasonable control.
27. Enforcement.
    
    
    1. Investigation of Violations. FabricShop may investigate any reported or suspected violation of this Agreement or FabricShop policies, or any complaints and take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, employees, customers and/or third parties. FabricShop will not access or review the contents of any e-mail or similarly stored electronic communications except as required or permitted by applicable law or legal process or permitted by the owner of said e-mail or stored electronic communications.
    2. Actions. FabricShop reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement, the AUP or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third-party's rights or potentially in violation of any laws. If FabricShop becomes aware of any possible violation by You of this Agreement, the AUP or any related policies or guidelines, third-party rights or laws, FabricShop may immediately take corrective action, including, but not limited to: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on FabricShop's systems, and/or (d) disabling or removing any hypertext links to third-party websites, any of your content distributed or made available for distribution via the Services, or other content not supplied by FabricShop which, in FabricShop's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes FabricShop to civil or criminal liability or public ridicule. It is FabricShop's policy to terminate repeat infringers. FabricShop's right to take corrective action, however, does not obligate FabricShop to monitor or exert editorial control over the information made available for distribution via the Services. If FabricShop takes corrective action due to any such possible violation, FabricShop shall not be obligated to refund to You any fees paid prior to such corrective action, nor does such action eliminate Customer responsibility to pay for Services rendered but not yet paid, including, but not limited to, excess bandwidth charges, excess disk space usage, labor or other related services.
    3. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect FabricShop's systems and customers, and/or to ensure the integrity and operation of FabricShop's business and systems, FabricShop may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history and content residing on FabricShop's servers and systems. FabricShop also reserves the right to report any activity that it suspects to violate any law or regulation to appropriate law enforcement officials, regulators or other appropriate third parties.
28. Miscellaneous.
    
    
    1. No Assignment by Customer. Customer may not assign this Agreement without the prior written consent of FabricShop, which FabricShop may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. FabricShop may assign this Agreement, and such assignment shall be effective upon written notice provided to Customer.
    2. Relationship of Parties.
       1. Independent Contractor. FabricShop, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture or a partnership between FabricShop and Customer. Customer shall be solely responsible for and shall hold FabricShop harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers' compensation related to Customer's business.
       2. No Agency. Customer does not undertake (by this Agreement, the Order or otherwise) to perform any obligation of FabricShop, whether by regulation or contract. In no way is FabricShop to be construed as the agent, fiduciary, trustee or to be acting as the representative of Customer in any respect, any other provisions of this Agreement notwithstanding.
       3. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to give any person other than the Parties hereto any legal or equitable right, remedy or claim under or in respect of this Agreement. There are no third party beneficiaries of this Agreement.
    3. No Third-Party Beneficiaries. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
    4. Force Majeure. FabricShop will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond its reasonable control and that it is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, FabricShop will give You prompt written notice and will use commercially reasonable efforts to minimize the impact of the event.
    5. Survival. All provisions of this Agreement relating to Customer's warranties, FabricShop's intellectual property rights, limitations of liability and exclusions from liability, Customer's indemnification obligations and Customer's payment obligations shall survive the termination or expiration of this Agreement.
    6. No Inference Against Author. FabricShop and Customer agree that no provision of this Agreement shall be interpreted against any party because such party or its legal representative(s) drafted such provision.
    7. Internet and E-Commerce Taxes. From time to time, governments enact laws and levy taxes and tariffs affecting the Internet and electronic commerce. Customer agrees that Customers is solely responsible for complying with such laws, taxes and tariffs, and will hold harmless, protect, and defend FabricShop and its officers, directors, representatives, affiliates, partners and subcontractors from any claim, suit, penalty, tax or tariff arising from Customer's exercise of the Internet and electronic commerce.
    8. Confidentiality. The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third-party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third-party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of any Services, FabricShop and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for so long as any Services are provided to Customer by FabricShop and for a period of three (3) years after the termination of all Services.
    9. Privacy Policy. FabricShop collects basic information to make your support experience the very best. FabricShop respects your privacy, and assures you that it will maintain and use this information responsibly. Please note that this Privacy Policy does not govern the collection and use of information by individual merchants, partners, or other companies, nor individuals not employed or managed by FabricShop.
       
       FabricShop gathers navigational information about where you go on our website. This information allows FabricShop to see which areas are most visited. This helps improve the quality of online shopping experiences by recognizing and delivering more of the features, services and products. Additional non-personally identifiable information (i.e. domain type, browser version, service provider and IP address) may be collected which will provide information regarding your use of our website.
       
       Any Personally Identifiable Information ("PII") You provide is maintained in private files on our secure server and our internal systems. FabricShop does not sell, rent or trade your PII to third parties. If you do provide PII to FabricShop, either directly or through a reseller or other business partner, we will: (1) take commercially reasonable precautions to protect the information from loss, misuse and unauthorized access, disclosure, alteration and destruction; (2) not use or disclose the information except: as necessary to provide services or products you have ordered, such as (for example) by providing it to a carrier to deliver products you have ordered; in other ways described in this privacy policy or to which you have otherwise consented; in the aggregate with other information in such a way so that your identity cannot reasonably be determined (for example, statistical compilations); as required by law, or based on our good faith belief that it is necessary to conform or comply with the law; to outside auditors who have agreed to keep the information confidential; to a successor organization in the event of a merger, acquisition, bankruptcy, or other sale or disposition; as necessary to enforce this Agreement; as necessary to protect the rights, safety, or property of FabricShop, its users, or others; this may include for fraud protection and/or risk reduction. FabricShop may use third parties to help us provide services and marketing to you, such as fulfilling orders, processing payments, monitoring site activity, conducting surveys, and administering e-mails. If any PII is provided to any of these third parties, we will require that such information be maintained by them in strictest confidence.
       
       FabricShop's operations are located primarily in the United States. If you provide information to us from outside the United States, the information will be transferred to the United States. By providing personal information to FabricShop, you are consenting to its storage and use as described herein.
       
       This site uses cookies to enable you to navigate the site better as well as provide non-personally identifiable information to third parties to assist in our market research and to provide targeted marketing and information. Third parties that have content embedded on FabricShop's website may set cookies and/or obtain information about usage. Third parties cannot collect any other personally identifiable information from FabricShop's website unless you provide it to them directly. If you prefer not to accept cookies, you can set your browser to either disallow cookies all together or have a browser alert you when a site is using a cookie.
    10. Mediation. The parties hereto shall attempt to resolve any dispute or disagreement arising out this Agreement or the performance thereof by first submitting such dispute to mediation pursuant to the following procedures: Any dispute arising out of this Agreement or the performance thereof shall be resolved by submitting the same to nonbinding mediation and thereafter, if not resolved, by any other legal processes available at law. Mediation shall be conducted by an independent qualified mediator agreed to by both parties. If the parties fail to agree as to a mediator within ten (10) days of the first notice of mediation from one party to the other, the choice of a mediator shall be made by the American Arbitration Association ("AAA"), or another mediating or arbitrating entity selected by FabricShop, at a location in Broward County, New Jersey or via teleconference. In any action at law or in equity or in any proceeding to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, paralegal fees, costs of discovery, all fees and costs of appellate proceedings, and necessary disbursements in addition to any other relief to which such party may be entitled.
    11. Governing Law. The laws of the State of New Jersey shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement without regard to the principles of conflict of laws. You hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non convenes with respect to) the exclusive jurisdiction and venue of the federal and state courts of in Broward County, New Jersey, USA. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement. The parties specifically exclude from application to this Agreement from the United Nations Convention on Contracts for the International Sale of Goods.
        
        If a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible. The section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by FabricShop shall be for acknowledgment purposes only.
        
        Failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time. The remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies.

In addition to the general Terms of Service above, You also agree to be bound by the additional service specific terms applicable to the Services You purchase and/or use ("Service Specific Terms"). The following Service Specific Terms and policies are hereby incorporated by reference and will be binding upon the parties.

Hosting Services
1. Hosting Services.
   
   
   1. Service Description. As a website hosting service provider, FabricShop provides dedicated server computers that are integrated into the Internet. These server computers send and receive data and information throughout the Internet. Customer wishes to connect to the Internet using the hardware and software resources of FabricShop to establish an Internet web presence on one of FabricShop's server computers ("Hosting Services"). FabricShop grants You a limited, non-exclusive license to use the Hosting Services for the purpose of operating a website. All rights not expressly granted hereby are reserved by FabricShop.
   2. Resale. Notwithstanding anything in this Agreement to the contrary, Customer may resell to third parties the Hosting Services; provided, that Customer is responsible for third-party activities and content, and that such third-party shall act in accordance with the terms of this Agreement.
   3. Information. The use of any data or information received by the Customer from the any service provided by FabricShop is at Customer's sole and absolute risk. FabricShop specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the services provided by FabricShop.
   4. Domain Name. If FabricShop acquires an Internet domain name on behalf of the Customer, then Customer hereby waives any and all claims which it may have against FabricShop for any loss, damage, claim or expense arising out of or in relation to the registration of such domain name in any online or offline network directories, membership lists, registration lists or the release of the domain name from such directories or lists following the termination of the providing of this service by FabricShop for any reason.
   5. Payment. The set-up fee, first payment and any deposit for Hosting Service are due at the time the order form is filled out, and returned to FabricShop. This includes, but is not limited to, web publishing, programming, setup fees, dial up accounts and hosting accounts. Subsequent payments are due according to the selected fee schedule following the establishment of the website on the Internet. Further, any prepaid fees are non-refundable.
   6. Unilateral Service Revocation. If FabricShop, at any time, believes that the Hosting Service is being used for any unlawful or immoral purpose (as determined in FabricShop's sole and absolute discretion) by the Customer or in contravention with the terms and condition of this Agreement, FabricShop may immediately discontinue the Hosting Service to the Customer without liability.
   7. Downtime. If Customer presents to FabricShop any evidence of the customer's website not being accessible by the general public ("Downtime"), and such evidence is proven to be the sole and exclusive fault of FabricShop, then Customer shall be compensated for such amount of Downtime, on a prorated basis, on Customer's periodic billing invoice. If, however, any such Downtime is due to any external factor not in the control of FabricShop, then no compensation will accrue or occur. You agree that FabricShop has no control over availability of Hosting Services on a continuous or uninterrupted basis and you acknowledge there are inherent risks in Internet connectivity that could result in loss of your privacy, information or property.
   8. Cancellations. Customer shall be responsible for any costs incurred by FabricShop if a cancellation is received after FabricShop has commenced work on Customer's website.
   9. Technical Specifications. Allocation of disk space, SQL disk space, usage rates, burst capacity, service level warranty and other similar items will be governed by Customer's specific plan, order or package. The servers used to provide the Hosting Servers are physically located in the USA and all content will be subject to the laws thereof. Due to server migration and other factors, FabricShop does not warrant that you will be able to consistently maintain your given IP numbers.
   10. Server and Network Issues. You are responsible for ensuring there is no excessive overloading on FabricShop's servers. In the event You exceed your allotted bandwidth, compute cycles or disk space and thereby overload the servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use FabricShop's servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and FabricShop reserves the right to remove websites containing information about hacking or links to such information. You agree FabricShop reserves the right to remove your website temporarily or permanently from its servers if your activities that threaten the stability of FabricShop's network.
   11. Customer Representations and Warranties. Customer represents and warrants to FabricShop that: (i) its content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation; (ii) its content does not and shall not infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) it owns its website content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the content on and within its website. You also warrant that the website being hosted by FabricShop will not be used in connection with any illegal activity.
Design and Development
2. Design and Development.
   
   
   1. FabricShop's and Customer's Responsibilities.
      1. Scope of Work. Customer hereby retains the services of FabricShop to design Customer's website for Customer in accordance with the order form initially submitted by Customer (together with any subsequent order forms submitted, the "Order").
      2. Changes. Changes to this Agreement, the Order or to any of the specifications of the website shall become effective only when a written change request is executed by the Customer and FabricShop (a "Change Order"). In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
      3. Customer's Responsibilities. Customer agrees to perform all tasks assigned to Customer as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to FabricShop in order to timely and efficiently complete the website. FabricShop shall not be deemed in breach of this Agreement, the Services, a Change Order or any milestone in the event that FabricShop's failure to meet its responsibilities and time schedules is caused by Customer's failure to meet (or cause a delay in) its responsibilities and time schedules set forth herein, a Change Order or this Agreement. In the event of any such failure or delay by Customer (i) all of FabricShop's time frames, milestones and/or deadlines shall be extended as necessary, and (ii) Customer shall continue to make timely payments to FabricShop as set forth in this Agreement and any Change Order(s) as if all time frames, schedules or deadlines had been completed by FabricShop. Customer shall be responsible for making, at its own expense, any changes or additions to Customer's current systems, software and hardware that may be required to support operation of the Customer's website. Unless otherwise agreed to by FabricShop in an agreement or in a Change Order, Customer shall be responsible for initially populating and maintaining any databases on the website, as well as providing all content for the website. If Customer executes a Change Order expressly requesting FabricShop to assess the Customer's systems, software and hardware from time to time, FabricShop may agree (but is not obligated) to perform such assessments at normal FabricShop rates, as determined by FabricShop.
3. Website Design.
   
   
   1. Design. The design of the website shall be in substantial conformity with the material provided to FabricShop by Customer. Website consultation will be provided according to the number of coordination steps outlined for the plan purchased by Customer in the Order. Customer will provide direction to FabricShop by accessing FabricShop's Customer Relationship Management system ("CRM") and delivering content for website construction within same. Website text shall be supplied by Customer unless copywriting services have been purchased. Development of web pages shall occur on Customer's established Hosting Service with FabricShop. All technical issues with FabricShop's servers shall be handled by FabricShop, unless otherwise agreed to by the parties. Minor updates and changes include minor modifications and other adjustments to work out backend database issues and functionality. Such updates and modifications do not include adding features beyond the scope of the Order.
      
      FabricShop shall not include, as determined in its sole discretion, any of the following on Customer's website or in Customer's directory on FabricShop's web server: text, graphics, sound or animations that may be viewed as obscene, containing adult material or as promoting any illegal activities; links to other websites that may be viewed as obscene, containing adult material or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Customer); invisible text, metatags (i.e., text that may only be detected by a "webcrawler" or other web indexing tool accessing the website), or any other type of hidden text, hidden information, hidden graphics or other hidden materials; or destructive elements or destructive programming of any type.
   2. Coordination Steps. Customer understands that submissions for website development are limited to the number of coordination steps as provided in the Order. Customer is encouraged to provide as much instruction and direction as possible with each submission.
   3. Accessibility of Website During Construction. Throughout the construction of the prototype and the final website, the website shall be accessible to Customer through the CRM. Until Customer has approved the final website, none of the web pages for Customer's website will be accessible to end users.
   4. Completion Date. FabricShop and Customer shall work together to complete the website in a commercially reasonable manner. Customer shall supply to FabricShop complete text and graphical content of all web pages contracted for within two (2) weeks of the date of the Order, unless otherwise agreed to by the parties. If Customer does not submit complete text and graphical content within three (3) weeks after the Order, an additional continuation fee of 10% of the total Order price shall be assessed to Customer each month until the website is published.
   5. Acceptance; Cure. The deliverables shall be deemed to be accepted upon the earlier of (a) written notice by Customer of such acceptance or (b) expiration of the time period for Customer's inspection without written notice of material non-conformance. Customer shall not unreasonably withhold or delay acceptance. After receipt of notice of a material non-conformity, FabricShop shall have 30 days to remedy such failure or defect and redeliver such deliverables to Customer. Customer shall have 10 days after FabricShop redelivers to inspect and test the deliverables to determine if it conforms. If the deliverables continue to fail to materially conform, then: (i) either Party may terminate this Agreement; or (ii) if both Parties agree, FabricShop will be given a further opportunity to cure any defects.
   6. Mirroring. The deliverables are provided for use on the designated domain only. Should You desire to mirror the design on one or more different domains You must submit an order identifying the new or additional domain. The initial mirroring may be completed without additional charge; however any future updates or modifications to the design will require additional fees on a per domain basis.
   7. Ownership and Protection of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, FabricShop has no proprietary, financial, or other interest in Customer's content; (b) FabricShop does not, by virtue of offering or hosting Customer's content, edit, distribute, market, sublicense, publish, or otherwise provide Customer's content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its content. Customer warrants that it owns or has the right to use and offer the content in the manner in which such content is offered during the term of this Agreement. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its content. FabricShop is no way responsible for any damages resulting from the loss of Customer's content, regardless of the reason for such loss.
   8. Reuse of Deliverables. Customer understands and specifically acknowledges that FabricShop may, in its sole discretion, use some or all of the deliverables (excluding content provided by Customer) in the future in commercial development projects for other customers. Nothing in this Agreement shall be construed to limit FabricShop's right to do so or to use any information retained as ideas, information and understandings retained in the human memories of its employees, contractors and agents, provided that Volusion may only use information of general applicability.
   9. Copyright to Website. Customer acknowledges, understands and agrees that FabricShop may use its own and/or may purchase third-party licenses for products or services necessary for FabricShop to design and develop the website. Such products may include, but are not limited to server-side applications, clip art, back-end applications, music, stock images or any other copyrighted work ("Outside Content") which FabricShop deems necessary to purchase on behalf of Customer to design and develop the website. Customer further acknowledges and understands that any Outside Content used to design and develop the Website is owned by FabricShop and/or such third parties and cannot be transferred to Customer and is hereby expressly not transferred to Customer and shall remain the property of FabricShop and/or such third parties. Outside Content which is owned and/or purchased by FabricShop may be used in the design and/or development of other websites separate from Customer.
      
      Customer and FabricShop agree that upon payment in full of the fees associated with the design and development of the website, Customer shall own a worldwide right, title and interest in and to the website (including its source code and documentation) (the "Custom Programming"). Customer and FabricShop agree that FabricShop shall retain a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense or otherwise alter or transfer the Custom Programming. Customer and FabricShop also agree that the design and development of the website may include source code, documentation and/or application programs that were previously written or developed by FabricShop and modified to meet Customer's specific requirements (the "Code Content"). Customer shall own all worldwide right, title and interest in and to the Code Content. Upon payment in full of the fees associated with the design and development of the website, Customer shall be provided a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. FabricShop and its representatives, agents, affiliates and subcontractors retain the right to display graphics and other web design elements of Customer's website as examples of their work in their respective portfolios.
4. Maintenance. Unless and until a website maintenance plan is purchased by Customer, any Services purchased from FabricShop do not include website maintenance. If Customer or an agent other than FabricShop attempts updating Customer's pages, any time to repair any such web pages shall be assessed at an hourly rate, as determined by FabricShop. Any other changes requested by Customer shall be billed at the hourly rates set forth in the Order. This rate shall also govern additional work authorized beyond the maximums specified in the Order for other services such as webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics or any other related services.
5. Fees. The total price for all of the design and development work (excluding post-approval modifications not implemented by Customer) shall be set forth in the Order (the "Development Fee"). This price covers all work for the Order (excluding post-approval modifications not implemented by Customer). Unless otherwise stated in the Order, the Development Fee is due and payable to FabricShop upon placing the Order. FabricShop shall have no obligation to perform any work until payment is received and such funds are cleared from any such financial institution.
6. Indemnification.
   
   
   1. FabricShop Indemnity. In performing services under this Agreement, FabricShop agrees not to design, develop or provide to Customer any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy or other rights of any person or entity. If FabricShop becomes aware of any such possible infringement in the course of performing any work hereunder, FabricShop shall immediately notify Customer in writing. FabricShop agrees to indemnify, defend and hold Customer, its officers, directors, members, employees, representatives, agents and the like harmless for any such alleged or actual infringement and for any liability, debt or other obligation arising out of or as a result of or relating to: (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, other than Customer's responsibilities and Customer Content (as defined below). This indemnification shall include attorneys' fees and expenses, unless FabricShop defends against the allegations using counsel reasonably acceptable to Customer. FabricShop's total liability under this Agreement shall not exceed the amount of the Development Fee derived by FabricShop under this Agreement.
   2. Customer Indemnity. In additional to any other applicable indemnity set forth in these Terms, Customer shall indemnify and hold harmless FabricShop (and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees) from any and all claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by FabricShop as a result of any claim, judgment or adjudication against FabricShop related to or arising from: (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display or material (whether written, graphic, sound or otherwise) provided by Customer to FabricShop (the "Customer Content"), or (b) a claim that FabricShop's use of the Customer Content infringes the intellectual property rights of a third-party.
7. Representations and Warranties.
   
   
   1. FabricShop makes the following representations and warranties for the benefit of Customer:
      1. No Conflict. FabricShop represents and warrants that it is under no obligation or restriction that interferes or conflicts with the work to be performed by FabricShop under this Agreement and the Order. Customer understands that FabricShop may or is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with FabricShop's obligations under this Agreement, those projects shall not constitute a violation of any provision of this Agreement.
      2. Conformity, Performance, and Compliance. FabricShop represents and warrants that: (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) FabricShop will perform all work called for by this Agreement in compliance with applicable laws. FabricShop will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of Customer's website, and will otherwise repair the defect within 24 hours of knowledge of such defect at no charge to Customer. This warranty shall extend for the life of this Agreement. This warranty does not cover links that may change in the future, pages that may become obsolete in the future, content that may become outdated in the future, or other changes that do not result from any error on the part of FabricShop.
   2. Customer represents and warrants and unconditionally guarantees to FabricShop that any elements of text, graphics, photos, designs, trademarks or other artwork furnished to FabricShop for inclusion in Customer's website are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements. In additional to any other applicable indemnity set forth in these Terms, Customer will hold harmless, protect and defend FabricShop and its officers, directors, representatives, affiliates, partners and subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
Software
8. Term and Payment for Software Services.
   
   
   1. Term. The Initial Term for all dedicated server and dedicated server add-on equipment (including, but not limited to memory, processors and disk drives) shall have a minimum Initial Term of three (3) months. Upon canceling the Services, You may asked to provide FabricShop with personally identifiable information so that FabricShop may properly identify You as a person authorized to cancel your account. Any notice of termination will be effective upon receipt of the cancellation request electronically via our website or by telephone to our billing department.
   2. Termination Policy. If You terminate the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, any payment due to FabricShop or refund due to Customer will be governed by the current cancellation policy posted on FabricShop's website, and will be based upon the current plan type for your service. The posted cancellation policy will govern all payments due. You acknowledge and agree that termination of your account for violation of FabricShop's Acceptable Use Policy constitutes your waiver of any refund due, even if You have made a prepayment. Notwithstanding anything in these Terms to the contrary, You agree to provide FabricShop a thirty (30) day advance notice of your intent to cancel your service.
   3. Material and Product Requirements. Unless otherwise agreed by the parties, Customer must ensure that all material and data placed on FabricShop's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by FabricShop. FabricShop will make no effort to validate any such information for content, correctness or usability. If Customer's material is not "server-ready," FabricShop shall have the option at any time to reject such material. FabricShop shall notify You of its refusal of the material and afford You the opportunity to amend or modify the material to satisfy the needs and/or requirements of FabricShop. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your website. Customer must have the necessary knowledge to create and maintain a website. It is not FabricShop's responsibility to provide this knowledge or customer support outside of the Services agreed to by Customer and FabricShop.
   4. Bandwidth and Storage Usage. Customer agrees that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits for your current plan type, as described FabricShop's website. If Customer uses any bandwidth or storage space in excess of the agreed upon number of megabytes per month, Customer agrees to pay all associated additional charges.
   5. Disk Space Management. Customer agrees that FabricShop may utilize certain tools, both automated and manual in design, that allow FabricShop's support staff to maximize the efficiency of disk space utilization within Customer's account space. These tools will be used to compress and archive Customer's log files for the account for the purpose of maximizing useable disk space within the account. If Customer requires archived data for statistical analysis purposes or for local copy retention, Customer may request that an archived log file set be provided by the FabricShop support staff. The default schedule for the archiving of customer log files is set at one (1) day. Archives are stored on an archive server every one (1) week. You agree that FabricShop has no liability to You in the event any customer log file is not available to You at any particular time.
   6. Email Services. Customer agrees that FabricShop may purge email messages from all email boxes when any email has been stored for at least 30 days. You agree that it is your responsibility to download and archive email messages, and FabricShop has no responsibility to You for storing any email message. You also understand and agree that email messages may be lost, improperly routed, improperly delivered, inadvertently deleted or not delivered at all. You agree that FabricShop has no liability to You for the delivery of email, failure to deliver email, failure to store email or any other circumstance upon which an email may not be available to You. You also agree to abide by our Acceptable Use Policy with regard to email services.
   7. Advertising via SPAM. Customer agrees that Customer will not advertise its website via unsolicited commercial email (UCE or SPAM). You agree that You will not permit any third-party or affiliate to advertise your website or services via UCE or SPAM. You also agree that FabricShop may take any action it deems necessary to protect its network and/or services from being disrupted or blocked due to your website being advertised by UCE or SPAM, including, but not limited to the following actions: interruption of service or cancellation of service without obligation of refund.
   8. Spam Filtering Services. Customer agrees that FabricShop may purge messages determined to be spam from all spam folders in your email boxes when the email has been stored for at least 7 days.
   9. Server Uptime Guarantee. FabricShop shall make all reasonable attempts to provide 100% Service availability ("Uptime") for any shared, load balancer and dedicated servers. Uptime shall be monitored by FabricShop, and upon customer request, a written summary of any downtime incurred within the previous thirty (30) days shall be provided to Customer. Uptime shall be monitored and computed as the aggregate Uptime of each calendar month. If FabricShop fails to provide Uptime equal to 99% during any calendar month, upon receipt of a written request from Customer, FabricShop shall issue to Customer a credit for Service equal to, but not exceeding the amount, paid by Customer for the Services, excluding any fees for bandwidth, excess disk space, labor or other charges not included in Customer's selected plan. In no event shall the credited amount for any period of downtime exceed the amount paid to FabricShop in one calendar month for the base Services provided for Customer's selected plan type.
   10. Maintenance Periods. FabricShop may from time to time schedule maintenance periods resulting in Service interruptions. Such maintenance periods will be announced in advance to customers via e-mail. Unless an exemption request is provided in writing from Customer within twenty-four (24) hours of FabricShop's maintenance notification, Customer agrees these maintenance periods shall be exempt from any Uptime guarantee contained herein, and a credit will be provided only if the scheduled downtime extends beyond the announced maintenance period. FabricShop agrees to make all commercially reasonable efforts to limit direct maintenance on Customer equipment to no more than two (2) times each month. The preferred maintenance period will be Sunday morning from 12:01AM EST to 2:01AM EST. Customer acknowledges that FabricShop may from time to time be required to perform emergency maintenance activities, including, but not limited to, installing security patches, service packs and other related updates to hardware and software and to the network and supporting equipment. Customer agrees that these emergency maintenance activities are outside of the scope of Customer operated equipment and may lead to downtime and latency beyond the control of FabricShop. Customer waives all claims relating to these unannounced indirect maintenance outages.