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We look forward to providing you with unprecedented access to thousands of the world’s most fashionable watch brands and styles. Your membership to FabSwap (“Membership”) is subject to your acceptance of an agreement to the following terms and conditions, in addition to the specific terms set forth in all Rotation Election Forms that you enter into during the term of your Membership (collectively, the “Membership Agreement”). This Membership Agreement forms a binding agreement between FabSwap (“we” “us” “our”) and you (“Member”) (collectively, the “Parties”). FabSwap reserves the right to change or modify this Membership Agreement at any time, and such changes will become effective upon notice thereof to you.

1. REGISTRATION, ACCOUNT AND COMMUNICATION PREFERENCES

When you access the FabSwap website or mobile application (collectively, the “Site”), you are subject to the Site’s Terms of Use, which are incorporated into this Membership Agreement by reference. In the event there is any conflict, contradiction or inconsistency between this Membership Agreement and any other agreement between FabSwap and you, the provisions of this Membership Agreement shall prevail.

In addition to telephone and written communications, you consent to receive electronic communications from FabSwap. Electronic communications may include emails, text messages sent to your mobile device, online messaging, or notices we post to the Site. Our communications to you may include notices about your account and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by saving an electronic copy or printing a paper copy. We may also send you promotional communications via email, including, but not limited to, advertisements, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided in the email message. Please note that even if you opt out of receiving promotional emails from us, we may continue to send you non-promotional emails, such as those concerning your Membership or our ongoing business relationship.

2. MEMBERSHIP

Your Membership entitles you to select an access level, either a monthly subscription or a yearly subscription (the “Access Level”). Details about the Access Levels and pricing are available on the Site or can be obtained from a member of the FabSwap Team. As a condition of Membership, you will be required to provide a security deposit (“Security Deposit”) in the amount of $ {{!deposit}}, which will be held by us in a non-interest bearing account, and returned to you subject to this Membership Agreement.

Membership allows you to select a watch (“Watch”) from within the applicable Access Level (subject to availability), and keep it for a designated period of time (a “Rotation”). Upon execution of this Membership Agreement, you will activate your membership by visiting the Site or speaking with a member of the FabSwap Team at which time you will elect your Watch and Rotation length (“Pairing”). Your Pairing will be confirmed in an addendum to this Membership Agreement (“Rotation Election Form”). The Rotation Election Form will also specify, among other things, the Watch manufacturer, Watch model, Watch description, Watch value (“Designated Watch Value”), your shipping address, your contact information, the Rotation commencement date, the required Rotation return date and any Monthly Membership Fee adjustment. You may make alterations to your Rotation Election Form during the Term (as defined in Paragraph 7 hereof) by visiting the Site or communicating with a member of the FabSwap Team. All requested alterations are subject to FabSwap’ approval and agreement. All approved alterations will be reflected in subsequent Rotation Election Forms and will become effective on the first day of the next Rotation of your Membership. All Rotation Elections forms are incorporated into this Membership Agreement by reference. At the end of each Rotation or upon termination of this Membership Agreement, you must return the Watch to FabSwap in good condition, reasonable wear and tear excepted, using our shipping materials and pre-paid return shipping label. Your Monthly Membership Fee will continue to accrue until this Membership has been terminated and you have returned the Watch to FabSwap. Failure to pay your Monthly Membership Fee or to return a Watch to us as required by the Membership Agreement and applicable Rotation Election Form may result in the loss of your security deposit, liability for the Designated Watch Value, civil damages and/or criminal penalties. Please see Paragraphs 5 through 8, and additional terms of this Membership Agreement for more details.

3. FEES PAYABLE BY MEMBERS

You agree to maintain a valid credit card or other acceptable payment methods (for example, ACH) on file with FabSwap at all times. Account information shall be held by FabSwap’ secure third party payment processor.

You agree to pay the Monthly Membership Fee set forth. You expressly acknowledge that: (i) your Monthly Membership Fee will be automatically charged to your credit card or other acceptable payment methods each month; (ii) your Monthly Membership Fee is non-refundable once charged; and (iii) unless terminated in accordance with Paragraph 7 of this Membership Agreement, your Membership will automatically renew either monthly or yearly, as you’ve selected. You further agree that FabSwap is authorized to charge any outstanding amounts under this Membership Agreement to your credit card or other payment methods on file with FabSwap.

You acknowledge that the FabSwap Monthly Membership Fee may change from time to time. FabSwap will provide you with advance notice of any such fee increase(s), and with the opportunity to either continue your Membership at the restated fees, or terminate your Membership without penalty. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, overdraft, insufficient funds, and over the credit limit fees. FabSwap will notify you of any rejection of a payment by your credit card or other payment system provider. You agree to notify us by telephone and e-mail [305-912-7927 and cs@fabswap.com] about any billing problems or discrepancies within 30 days of the date of the relevant credit card or bank statement. If you fail to notify us within 30 days, you agree that you waive your right to dispute any such problems or discrepancies. Except as expressly set forth otherwise herein, your Monthly Membership Fee is non-refundable. You acknowledge that you are not entitled to interest on any Security Deposit retained hereunder. Failure to maintain a valid credit card or payment method, or failure to pay your Monthly Membership Fee for more than a period of thirty (30) days, may result in the termination of your Membership at the sole discretion of FabSwap, with no further obligation to you. During the term of this Agreement, you authorize FabSwap to obtain your credit report from consumer reporting agencies to verify your eligibility for Membership.

4. DELIVERY, NOTICE OF DAMAGE

You are required to provide us with a valid shipping address, which will be set forth in the Rotation Election Form, and to ensure that you, or a third party authorized by you, are present to receive each shipment. You agree to bear all liability for loss, theft or disappearance of a Watch delivered in accordance with your instructions and signed for by you or a third party on your behalf.

At the beginning of each Rotation, FabSwap will deliver a Watch to you in accordance with this Paragraph 4 via a reputable, nationally-recognized delivery service or in-person delivery. Each Watch will be sent in a protective case, in good working order, along with return shipping materials and a pre-paid return shipping label. You are encouraged to inspect each Watch delivered to you upon receipt, and immediately notify FabSwap of any obvious damage, defect or sizing issues. If you report damage, you must immediately return the damaged Watch to FabSwap in its protective case, using our shipping materials and pre-paid return shipping label. If you do not notify FabSwap of damage to a Watch within 24 hours of its delivery to you in accordance with this Agreement, any damages to the Watch upon its return to FabSwap will be subject to review pursuant to Paragraph 6. Upon its return, we will inspect the Watch and determine the cause of damage. If we determine that the damage was caused by the delivery service, we will send you a replacement Watch within your Access Level. If we determine that the damage was caused by you, then the provisions of Paragraph 5 of this Membership Agreement shall apply.

5. USE OF FABSWAP WATCHES, RESPONSIBILITY FOR DAMAGE, LOSS OR THEFT

You will treat all Watches you receive from FabSwap with great care. Except as otherwise set forth herein, you are solely responsible for loss, theft, or damage (other than reasonable wear and tear) to any Watch. You may not service or make any alterations to any Watch, or exchange or replace any Watch, without the express written authorization of FabSwap, which may be withheld for any reason.

In the event of loss, theft, or damage to any Watch (an “Incident”), you must notify the FabSwap Team, by telephone and e-mail [305-912-7927 and cs@fabswap.com] within 24 hours of the Incident. You agree to cooperate with and provide assistance to FabSwap (and its authorized representatives), which shall include and not be limited to providing complete details of the Incident, and, if applicable, filing a police report in the jurisdiction in which the Incident occurred.

A. Your Liability in the Event of Watch Loss: If an Incident involves loss, you will be responsible, at FabSwap’ discretion, for 100% of the Designated Watch Value, as set forth in the applicable Rotation Election Form, of which 20% will be charged to you immediately upon your report of the Incident (such 20%, the “Recovery Fee”).

In the event that FabSwap recovers the Watch, FabSwap will refund to you the Recovery Fee less any reasonable costs incurred by FabSwap associated with recovery or repair.

B. Your Liability in the Event of Watch Theft: In the event you are the victim of a theft and you are able to furnish documentation, including but not limited to a police report, of such Incident to the reasonable satisfaction of FabSwap, you will be responsible for 20% of the Designated Watch Value, which will be charged to you immediately upon your report of such Incident. You will also be responsible for reimbursing FabSwap for reasonable costs and expenses associated with FabSwap’ investigation of the Incident.

C. Your Liability in the Event of Watch Damage. If you return a Watch with damage (exceeding normal wear and tear as determined in FabSwap’ sole discretion), you will be responsible for up to $1,000 in cost of repairs. In the event of an Incident as described herein in this Paragraph 5, you hereby authorize FabSwap to charge your credit card (or other authorized payment methods), or otherwise collect the amounts due in accordance with this Membership Agreement.

6. RETURN OF THE WATCHES; FAILURE TO RETURN

At the end of each Rotation, you must return the Watch to FabSwap using the return shipping materials, postmarked no later than the date indicated in the applicable Rotation Election Form. If you need a new return box and/or shipping label, please notify us via email no later than ten (10) days prior to the scheduled return date and we will provide you with additional return materials at no charge. Your next scheduled Watch will not be sent until the previous Watch has been received and confirmed by us to be in good working order, or until an Incident has been resolved to FabSwap’ satisfaction. If you fail to return any Watch by its scheduled return date, FabSwap will charge you a penalty in the amount of one month of your Membership Fees, unless agreed to, in writing, by FabSwap.

If you fail to return the Watch within fifteen (15) days of its scheduled return date, FabSwap will charge you the Designated Watch Value as set forth in the then-effective Rotation Election Form, and you expressly authorize us to charge such fees to your credit card or other payment methods.

7. TERM AND TERMINATION

The initial duration of your Membership is one year from the date of execution of this Membership Agreement, and will automatically renew for successive one-year periods (the “Term”), unless it is terminated in accordance with the terms of this Membership Agreement.

A. Termination by FabSwap: Your Membership may be immediately terminated by FabSwap for cause if you breach any provision of this Membership Agreement, including but not limited to: tampering with a Watch; failure to report an Incident; failure to file a police report if so requested by us; failure to return a Watch; failure to maintain a valid payment method; or failure to pay fees due. Notwithstanding the foregoing, FabSwap may terminate your Membership for any reason or no reason, in its sole discretion.

In the event your Membership is terminated for cause, all future Rotations will be canceled and all monies you previously paid, including any Security Deposit and Membership Fees shall be retained by FabSwap as liquidated damages. In the event FabSwap terminates your Membership without cause, FabSwap will inform you of the termination and you will be required to return any Watch in your possession within five (5) days. Following termination, and upon receipt of any Watch in your possession in good working order (such determination to be made in our sole discretion), we will return your Security Deposit and refund any unearned Membership fees.

B. Termination by You: You may terminate your Membership during the Term by providing 7 days prior notice to FabSwap. Early termination will become effective on the day of the calendar month in which your subscription began. If you terminate a prepaid annual Membership, FabSwap will not refund any money.

C. Effect of Termination. The Termination of this Membership Agreement pursuant to this Paragraph 7, for whatever reason, does not relieve you of any outstanding obligations relating to your Membership, including but not limited to your obligation to return the Watch and reimburse FabSwap for the cost of any necessary repairs. FabSwap will continue to charge you the Monthly Membership Fee, and you will be liable for such fees, until you have returned your current Watch and reimbursed FabSwap for the cost of any necessary repairs.

You are required to return any FabSwap Watch in your possession to FabSwap within five (5) days of termination by you, or receipt of notice of termination by FabSwap. If you fail to return a Watch within five days of termination, FabSwap will charge you the Designated Watch Value as set forth in the then-effective Rotation Election Form, and you expressly authorize us to charge such fees to your credit card or other payment methods.

8. FABSWAP’ RIGHTS IN THE EVENT OF YOUR DEFAULT

If you have failed to return a FabSwap Watch in your possession as required by Paragraphs 6 or 7 of this Membership Agreement, or you have failed to pay any fees due under this Membership Agreement, then FabSwap may send you a notice of default. In such case, FabSwap, may, at its option and without prejudice to any other rights it may have:

(i) Report the failure to pay or default to the credit reporting bureaus;

(ii) Report the Watch as stolen to the appropriate law enforcement agencies;

(iii) Seek all other damages as set forth in this Membership Agreement or as permitted by law.

No right or remedy conferred upon or reserved to FabSwap by this Agreement shall be exclusive of any other right or remedy herein or by law provided; all rights and remedies conferred upon FabSwap by this Agreement or by law shall be cumulative and in addition to every other right and remedy.

If FabSwap incurs any expenses in enforcing the terms of this Membership Agreement, Member shall be liable for payment of all such expenses (including, but not limited to, legal fees and court costs), in addition to all sums due.

9. TITLE AND THEFT

Member acknowledges that this Membership Agreement does not in any way confer on Member any title to any FabSwap Watches or property. Member agrees not to do any act to encumber, convert, pledge, sell, assign, lease, lend, conceal, abandon, give up possession of, or destroy FabSwap’ Watches or property. FAILURE TO RETURN A WATCH MAY RESULT IN CIVIL OR CRIMINAL PROCEEDINGS BEING FILED AGAINST YOU.

10. MEMBER REPRESENTATIONS AND WARRANTIES

You represent and warrant that (i) you are at least eighteen (18) years of age and possess the legal authority to create a binding obligation; (ii) you will use the Watch in accordance with this Membership Agreement; (iii) the acquisition of your Membership is solely for your individual enjoyment, and is not for investment purposes or with an expectation that it or any item hereunder may be resold for profit; (iv) you will provide timely notice of any change in address and/or of any plans to travel outside of the United States for more than two weeks or if it would impact your ability to return a Watch at the end of a Rotation with an FabSwap Watch; and (v) all information which you have supplied to FabSwap, whether verbally or in writing, is true, accurate, current and complete.

11. ASSUMPTION OF RISK; INDEMNIFICATION AND RELEASE

By entering into this Membership Agreement, you agree to ASSUME ALL RISKS associated with your use and enjoyment of the Watches provided hereunder. You agree to hold harmless, release, defend, and indemnify FabSwap and its affiliates, suppliers, and their respective officers, directors, shareholders, employees and agents from any and all loss, cost, damage, liability (including reasonable attorney's fees) and/or claims asserted, threatened, arising from, related to, or in connection with (a) any injury or death to yourself or third parties, or damage to property arising from your use and enjoyment of Watches delivered hereunder; (b) any damage to a Watch or other property provided to you by FabSwap caused by you or any third party; (c) any violation of laws or rights of a third party by you; or (d) any breach of this Membership Agreement

12. DISCLAIMERS OF WARRANTIES; LIMITATIONS ON LIABILITY

Membership and all Watches are provided "as is." FabSwap makes no representations or warranties of any kind with respect to Membership or the Watches provided hereunder. FabSwap assumes no liability or responsibility for any errors or omissions in providing the Membership services, any failures, delays, or interruptions in the shipment of items, and any losses or damages arising from the use of the items provided or other goods or services provided by FabSwap. FabSwap reserves the right to refuse to ship any Watch in its sole discretion. FABSWAP EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATING TO MEMBERSHIP, WATCHES, AND ANY OTHER PRODUCTS OR SERVICES OFFERED BY FABSWAP, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING THE FOREGOING, FABSWAP REPRESENTS AND WARRANTS THAT, TO THE BEST OF ITS KNOWLEDGE, EACH WATCH PROVIDED HEREUNDER IS GENUINE; WILL BE IN COSMETICALLY EXCELLENT CONDITION AND GOOD OPERATING CONDITION WHEN DELIVERED; AND THAT FABSWAP EITHER OWNS OR IS AUTHORIZED TO PROVIDE SUCH WATCH TO ITS MEMBERS.

THE LIABILITY OF FABSWAP AND ITS AFFILIATES, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS UNDER THESE TERMS AND CONDITIONS AND ANY OTHER FABSWAP AGREEMENTS IS LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, WHICH SHALL NOT BE IN EXCESS OF YOUR MEMBERSHIP FEES PAYABLE OVER THE PREVIOUS THREE MONTH PERIOD. FABSWAP AND ITS AFFILIATES, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS WILL NOT BE HELD LIABLE FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE AND SPECIAL DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, REGARDLESS OF WHETHER THESE PARTIES HAD ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES OR FOR ANY CAUSE BEYOND SUCH PARTIES’ REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO THEY MAY NOT APPLY TO YOU.

13. CLASS ACTION WAIVER

You expressly waive any ability to maintain any class action in any forum. Any claim or other proceeding by or between you and FabSwap shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbiter of any dispute shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this Membership Agreement specifically prohibits you from commencing legal proceedings as a representative of others. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction.

14. CHOICE OF LAW

This Membership Agreement and all other FabSwap Agreements are entered into in and shall be governed by and construed in accordance with the laws of the States of Minnesota and Florida, exclusive of its choice of law rules. The Parties hereby consent to the exclusive venue and jurisdiction of any court sitting in Minnesota or Florida for resolution of any dispute, controversy or claim arising out of or in any way relating to your Membership and/or the terms and conditions of this or any other agreement with FabSwap; provided, however, that FabSwap shall have the right to commence an appropriate proceeding in any court having jurisdiction (whether or not located in Minnesota and Florida) should it become necessary to do so to collect fees and/or recover possession of any item(s) delivered to you and not returned. You agree that service of process in any action brought by FabSwap may be made via Certified Mail, Return Receipt Requested and shall be deemed received five (5) days after being mailed to your last known address on file with FabSwap. THE PARTIES HERETO WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATING TO ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO YOUR MEMBERSHIP AND/OR THE TERMS AND CONDITIONS OF THIS OR ANY OTHR AGREEMENT BETWEEN YOU AND FABSWAP. In any action to enforce this Membership Agreement, the prevailing Party will be entitled to its costs and expenses and reasonable attorney’s fees.

15. SURVIVAL

Any and all provisions, promises and warranties contained herein, which by their nature or effect are required or intended to be observed, kept or performed after termination of this Membership Agreement, will survive the termination of this Membership Agreement and remain binding upon and for the benefit of the Parties. Without limiting the foregoing, your liability under this Membership Agreement does not end until you have returned any FabSwap Watch in your possession, compensated FabSwap for a lost, stolen or damaged Watch as set forth in Paragraph 5 of this Membership Agreement, reimbursed FabSwap for the cost of any necessary repairs, and paid all outstanding Membership Fees.

16. MISCELLANEOUS

Your Membership is personal to you and not assignable or transferable in whole or in part, nor may it be pledged or encumbered without FabSwap’ prior written consent. In the event that any terms of this Membership Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so this Membership Agreement shall otherwise remain in full force and effect. FabSwap’ failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. The Application Form, this Membership Agreement, all Rotation Election Forms, and any amendments hereto or agreements referenced and incorporated herein constitute the entire agreement and understanding of the Parties with respect to the subject matter hereof, and replaces and supersedes all prior agreements, arrangements, offers, undertakings or statements regarding such subject matter.