TERMS OF SERVICE
FOR THE USE OF
pranksanonymous.com
READ THESE TERMS OF SERVICE WITH CARE BEFORE PROCEEDING. BY AGREEING TO THESE TERMS OF SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT WITH US.
If you are not in agreement with these Terms of Service, do not utilize this site.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT UNDER SECTION VI THAT AFFECTS YOUR RIGHT TO SUE UNDER THIS AGREEMENT WITH RESPECT TO ALL PRODUCTS AND SERVICES UTILIZED BY YOU IN ASSOCIATION WITH THE USE OF pranksanonymous.com. ANY DISPUTE THAT MAY ARISE BETWEEN YOU AND pranksanonymous.com SHALL BE ARBITRATED. IN ARBITRATION PROCEEDINGS, THERE IS NO RIGHT TO JURY TRIAL OR TO HAVE A JUDGE DECIDE YOUR CASE.
THIS AGREEMENT ALSO CONTAINS AN INDEMNIFACTION, RELEASE, AND HOLD HARMLESS PROVISION UNDER SECTION V REQUIRING YOU TO INDEMNIFY AND HOLD HARMLESS pranksanonymous.com FOR ALL DAMAGES RESULTING FROM, OR RELATING TO, YOUR USE OF pranksanonymous.com, INCLUDING ALL CLAIMS BROUGHT AGAINST pranksanonymous.com BY THIRD PARTIES TO WHOM YOU CAUSE DELIVERY OF ANY PRODUCT OFFERED BY pranksanonymous.com. UNDER SUCH PROVISION, YOU WILL AGREE TO BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM YOUR USE OF pranksanonymous.com.
This Agreement may not be modified by You, and its terms will not be negotiated. By utilizing the Services or the Products, you accept and subscribe to these Terms of Service.
REPRESENTATIONS FORMING THE BASIS OF THIS AGREEMENT
Your Representations
1. By Your use of pranksanonymous.com, the Services, and the Products, You represent to Us that You are using the Services for purposes of humor. You represent that You are not using the Services or Products to harass, demean, defame, slander, or cause physical or emotional harm to the Recipient, You, or any third party. You further represent that you are not using the Services or the Products for purposes that are illegal, immoral, or fraudulent.
2. You represent that You are well-acquainted with the Recipient and are not aware of the Recipient’s health conditions, personal illnesses, mental, emotional, or other psychological conditions, or sensitivities to any of the Services or Products. You further represent that based upon your previous interactions with the Recipient, You have no
reason to believe that the Recipient will consider receipt of any of the Products or Services to be harmful or offensive.
3. You represent that there is no restraining order, protective order, or any other court order of any court in the United States or its territories prohibiting you from making contact with the Recipient or any third party.
4. You represent that the Recipient is an adult, at least eighteen (18) years of age, and that You are an adult, at least eighteen (18) years of age, you are not suffering from a mental disability, and you are fully capable of understanding the consequences of each of the terms set forth herein and that you have read these Terms of Service and do understand the consequences of the terms set forth herein.
5. You represent that Recipient has not filed suit, threatened to file suit, or made any claims for which a lawsuit would reasonably be justified, against You for any reason whatsoever, whether or not related to the Products, Services, or any other actionable behavior.
6. You represent and warrant that all information provided to Us is accurate and reflects Your information and not that of a third party. The telephone number, email address, physical address, and credit card information are Yours, and You have the right to utilize them.
Our Representations
1. We represent that our website, pranksanonymous.com is intended solely for non-malicious purposes, and is intended to be used solely for humorous purposes.
2. We further represent that we will not disclose Your name to the Recipient under any circumstances, except in the event a claim is filed with us, in court, or arbitration is initiated, for Your use of the Services or Products. In this event, we reserve the right to disclose any and all information provided to Us by You as reasonably necessary to protect Our interest in this Agreement and to enforce any provision hereof.
I. DEFINITIONS: “Agreement” means these Terms of Service. “You” and “Your” means the individual or entity that purchases products from, utilizes the services of, sends products via, or views the website known as “pranksanonymous.com” by checking the “Agree to Terms of Service” checkbox at the “Checkout” screen prior to purchasing Our products or services. “Us,” “We,” and “Our” means the website, pranksanonymous.com, its owners, affiliates, subsidiaries, parents, members, managers, shareholders, agents, employees, heirs, assigns, and insurers. “Services” means the delivery – by whatever means chosen by Us – of any and all Products offered for sale and delivery on Our website, pranksanonymous.com. “Recipient” means the person to whom the Products are delivered. “Products” means any and all items offered for sale and delivery on Our website, pranksanonymous.com.
II. USE OF THE SERVICES. You understand and acknowledge, by clicking the “Agree to Terms of Service” checkbox, that We are solely a sales entity engaged in the sale of the Products, pursuant to Your request. By agreeing to these Terms of Service, you are directing Us to send the Products to You or a Recipient subject to the Representations set forth above. Your use of the Services and/or Products constitutes Your agreement and confirmation of the above
referenced Representations. You may not use the Services or the Products to engage in behavior that would constitute an actionable tort in any state, which means you may not direct the product to Recipients or third parties who would find the contact with the Products (upon receipt) to be harmful or offensive. We reserve the right to refuse the Services or Products in our sole and absolute discretion. In the event you have paid for the Products or Services prior to the time at which we exercise our right to refuse the Services or Products, you will be refunded the full amount of your purchase. If it becomes apparent that your use of the Products or Services have been used in a manner that is inconsistent with the purposes set forth herein (e.g. to harass or cause harm), We reserve the right to file suit, notwithstanding the provisions of Section VI, Binding Arbitration and Class Action Waiver, for breach of these Terms of Service and to request any and all appropriate relief.
III. NO GUARANTEES AND WAIVER OF CLAIMS. We do not guarantee delivery of any Product to the Recipient. We cannot control the functions of third party delivery services. If you learn that a Product is not delivered to the Recipient, you may contact us at contactus@pranksanonymous.com, and We will provide the identity of the service utilized by Us for delivery of Your Product. Upon request, We will provide proof of mailing, but You waive any and all claims against Us for Products that do not reach the Recipient through no fault of Our own. In the event We fail to place a package for delivery, Your sole remedy is a refund for the Product or Service not so delivered. If You are a subscriber to Monthly Prank Bundles, as described on pranksanonymous.com, Your refund will be limited to the pro rata value of the Product not so delivered. The remaining Products or Services contemplated by Your Monthly Prank Bundles for which payment has been received will be delivered as scheduled between You and Us. You may not cancel a Monthly Prank Bundle on the basis that one (1) of the Products was not delivered, whether or not the failure of the delivery was Ours or that of a third party delivery service. YOU DO NOT HAVE THE RIGHT TO CANCEL AN ORDER ONCE IT HAS BEEN PLACED. CANCELLATIONS ARE WITHIN OUR SOLE DISCRETION.
IV. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES. You are responsible for ensuring that the Recipient is either made aware of the Product and its delivery, or that that the Product is being delivered to a Recipient who will receive the Product and consider it as a prank and not as a malicious or criminal act. By agreeing to these Terms of Service, You acknowledge that We are not responsible for any adverse consequences caused to the Recipient of any Product. You further acknowledge that by causing the delivery of the Product, You will be responsible for any injuries – whether personal, pecuniary, or otherwise – resulting from delivery of the Product. While we will take every step necessary to ensure that all Products are reasonably safe for their intended purposes, You acknowledge that You take full and absolute responsibility for any and all damages resulting from delivery of the Product. We do not in any way warrant the results, functionality, delivery, or proper use of the Services or the Products by Us, You, a Recipient, or any third party.
V. INDEMINIFICATION, RELEASE, AND HOLD HARMLESS. By utilizing pranksanonymous.com, the Services, or the Products, you agree to the following:
A. In the event a claim or suit is filed by the Recipient or any third party as a result of the receipt of a Product directed by You to be delivered by Us, You will indemnify Us for any resulting judgment, settlement or award issued against Us as a result of Your use of the Services or the Products. This provision applies regardless of whether You or We are negligent in provision of the Products or Services. We may, in Our sole discretion, settle any and all matters out of court for any amount We deem reasonably necessary. YOU AGREE TO REIMBURSE US FOR ANY AND ALL AMOUNTS PAID IN SETTLEMENT OR IN SATISFACTION OF A JUDGMENT, WHETHER HANDED DOWN BY A COURT OR ABITRATOR, ALONG WITH ANY AND ALL ATTORNEY FEES, COSTS, AND EXPENSES ASSOCIATED WITH PROCURING THE SETTLEMENT.
B. In Our sole discretion, We may elect to employ counsel to defend Us against any claims made by a Recipient or any third party as a result of the receipt of a Product directed by You to be delivered by Us, whether or not suit is filed. In the event we employ counsel for any purpose associated with Your use of the Product or Services, You agree to pay any and all attorney fees and costs actually incurred by Us associated with such purpose.
C. YOU AGREE TO INDEMNIFY, HOLD US HARMLESS, AND TO DEFEND US AGAINST ANY AND ALL CLAIMS MADE AGAINST US FOR YOUR USE OF THE PRODUCTS OR SERVICES. THIS MEANS THAT YOU WILL BE RESPONSIBLE FOR PAYMENT OF ALL COSTS OF DEFENDING ANY LAWSUIT OR ARBITRATION PROCEEDING, INCLUDING ATTORNEY FEES AND EXPENSES, AND YOU WILL BE RESPONSIBLE FOR PAYMENT OF ANY AND ALL AWARDS ISSUED AGAINST US IN FAVOR OF ANY RECIPIENT OR THIRD PARTY TO WHOM YOU DIRECTED PRODUCTS TO BE SENT.
D. YOU ALSO RELEASE, HOLD HARMLESS, AND INDEMNIFY US FOR ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION PROVIDED TO US WHICH YOU HAVE REPRESENTED TO BE ACCURATE. THIS PROVISION INCLUDES LIABILITIES RESULTING FROM VIOLATION OF THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. §227) AND ANY AND ALL REGULATIONS PROMULGATED THEREUNDER RESULTING FROM OUR EFFORTS TO CONTACT YOU AT THE INFORMATION YOU HAVE PROVIDED.
E. YOU RELEASE US FROM ANY AND ALL CLAIMS BROUGHT AGAINST YOU BY THE RECIPIENT OR ANY THIRD PARTY AS A RESULT OF YOUR USE OF THE SERVICES OR THE PRODUCTS. YOU UNDERSTAND THAT THERE IS A RISK THAT SUIT MAY BE FILED AGAINST YOU OR US, AND THAT YOU, ALONE, ARE RESPONSIBLE FOR PROTECTING US AND YOU FROM ANY AND ALL CLAIMS. While We reserve the right to employ counsel of Our choice, it will be Your responsibility to reimburse Us for the attorney fees, costs, and expenses We actually incur in association with any such claim.
F. FLORIDA RESIDENTS: You agree that the use of the Services and the Products are Your own acts. In the event the delivery of the Products or use of the Services is deemed to be a “wrongful act” under Florida law, You agree that such delivery of the Products or use of the Services shall be considered Your acts and not Our acts.
G. KENTUCKY RESIDENTS: You understand and acknowledge that You are hereby indemnifying Us for any and all acts committed by Us pursuant to Your use of the Services and/or Products. As such, You agree to indemnify Us, even if We are found to be negligent or to have engaged in any other unintentional tortious behavior, against any and all claims and causes of actions filed against Us by any third party.
H. MONTANA RESIDENTS: You agree to indemnify Us for any and all acts performed by Us, other than unlawful acts known by Us to be unlawful at the time such acts are performed by Us, in conjunction with your use of the Services and/or the Products.
I. NEBRASKA, NEVADA, and NEW YORK RESIDENTS: You agree to indemnify us for Our own negligence or other unintentional tortious conduct in Our performance of any of the Services or provision or delivery of any of the Products.
VI. BINDING ARBITRATION AND CLASS ACTION WAIVER. Any and all disputes between YOU and US must be resolved through individual arbitration. BY AGREEING TO THESE TERMS OF USE, YOU HEREBY WAIVE ANY RIGHT TO FILE SUIT AGAINST US ON A CLASS ACTION BASIS. YOU ACKNOWLEDGE THAT ANY DISPUTE MUST BE SUBMITTED TO BINDING ARBITRATION PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). YOU FURTHER WAIVE YOUR RIGHT TO ACT AS A CLASS MEMBER OR CLASS REPRESENTATIVE IN ANY CLASS ACTION FILED AGAINST US. Subject to the following exceptions, all disputes arising from the relationship between You and Us shall be arbitrable, including disputes relating to the scope, validity, or enforceability of this Arbitration Agreement. We, however, reserve the right to file in a court of competent jurisdiction a declaratory action seeking declaratory relief under these Terms of Service, including for the interpretation of this Arbitration provision. Exceptions to this Arbitration Agreement are claims arising under the regulations of any federal, state, or local regulatory authority which, pursuant to such federal, state, or local regulatory entity’s rules, are required to be tried before such regulatory entity. The fees and costs associated with the Arbitration shall be paid by the non-prevailing party.
VII. OPTING OUT OF ARBITRATION. YOU HAVE A RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT by contacting Us within five (5) days of your acceptance of these Terms of Service. To effectively opt out of this Arbitration Agreement, the following information must be sent to contactus@pranksanonymous.com: (1) your name, address, telephone number, and email address; (2) the following statement: “I, the undersigned, wish to opt out of the Arbitration Agreement set forth in Section VI of the Terms of Service”; (3) the exact date of your purchase; and (4) the number of the credit card with which you paid. Mere substantial compliance with this Section shall be considered unacceptable and will render your opt-out null and void. YOU MUST COMPLY SPECIFICALLY WITH EACH OF THE FOREGOING REQUIREMENTS IN ORDER TO EFFECTUATE YOUR OPT-OUT OF THE ARBITRATION PROVISION.
VIII. CREDIT CARD INFORMATION. Your credit card information will be held on file until the completion of the transaction for which such information is entered into Our website. This information may be disclosed to third parties solely for the purpose of securing credit card payments through electronic means. Third parties to whom Your credit card information is sent
have their own privacy practices, and the identities of such third parties will be provided to you upon written request sent to contactus@pranksanonymous.com.
IX. PRIVACY POLICY AND WEBSITE. Our Privacy Policy can be found at pranksanonymous.com/privacy-policy/. If there is an inconsistency between these Terms of Service and Our Privacy Policy or any information set forth on our website, the terms of these Terms of Service shall control. To the extent possible, the provisions of Our Privacy Policy, these Terms of Service, and information provided on Our website shall be read to be consistent with one another. If an inconsistency gives rise to the need to strike any provision of these Terms of Service, Our Privacy Policy, or the information set forth on our website, the information that should be stricken should be stricken first from the information set forth on our website, then from Our Privacy Policy, then from these Terms of Service. NOTWITHSTANDING OUR PRIVACY POLICY, OR ANY PROVISION THEREOF, WE RESERVE THE RIGHT TO RELEASE YOUR NAME, ADDRESS, TELEPHONE NUMBER, AND EMAIL ADDRESS, AS WELL AS THESE TERMS OF SERVICE, TO A RECIPIENT OR THIRD PARTY IF THE RECIPIENT OR THIRD PARTY MAKES A COMPLAINT TO OR AGAINST US, WHETHER OR NOT FILED IN COURT OR ARBITRATION PROCEEDING. WE FURTHER RESERVE THE RIGHT TO RELEASE YOUR INFORMATION TO A RECIPIENT OR ANY THIRD PARTY, INCLUDING LAW ENFORCEMENT, IF WE HAVE DETERMINED, IN OUR SOLE AND ABSOLUTE DISCRETION, THAT YOUR USE OF THE PRODUCTS OR SERVICES IS IMMORAL, ILLEGAL, VIOLATES A PROTECTIVE OR RESTRAINING ORDER, OR IS INTENDED IN ANY WAY TO CAUSE HARM TO A RECIPIENT OR THIRD PARTY.
X. BINDING AGREEMENT: The terms expressed herein shall inure to the benefit of and apply to all parent, subsidiary, and affiliated companies of Us, as well as to any company with which We may contract to provide any of Our Products or Services. You may not assign Your rights under this Agreement.
XI. ENTIRE AGREEMENT: These Terms of Service constitute the entire agreement and understanding between You and Us with respect to the subject matter hereof, and supersedes all other agreements, understandings, representations, warranties, promises, conditions, or statements, whether express or implied, written or oral.
XII. WAIVER OF JURY TRIAL. YOU AND WE AGREE TO WAIVE OUR RIGHTS TO TRIAL BY JURY, REGARDLESS OF WHETHER A CLAIM IS FILED IN ARBITRATION OR IN COURT.
XIII. PROTECTION OF MARKS AND INFORMATION; LIQUIDATED DAMAGES. All the Services, the Products, the information set forth on Our website, marks, fonts, drawings, materials, and documents (including these Terms of Service) (collectively, “the Protected Property”) are or may be protected by copyright, trademark, patent, or other intellectual property law. The Protected Property is Ours, not Yours, and You hereby waive any right to benefit, pecuniarily or otherwise, in any way from the Protected Property. If you benefit in any way from the Protected Property, you agree to liquidated damages in the amount of Ten Thousand Dollars
($10,000), or the actual amount of the pecuniary gain, whichever is greater. Nothing in these Terms of Service shall give You the right to reproduce for any purpose any of the Protected Property.
XIV. OUR RIGHTS IN LAW AND EQUITY. These Terms of Service shall not be in any way construed in a manner that would have the effect of limiting our rights and remedies available in law or equity.
XV. GOVERNING LAW AND VENUE. This Agreement shall be governed by Indiana law without regard to its choice of law or conflicts of law rules. Venue for any dispute related to or arising out of this Agreement shall be in a state court located in Hamilton County, Indiana.
XVI. SEVERABILITY: The covenants and acknowledgements contained in these Terms of Service shall be construed as separate and independent and this Agreement shall not be construed against either You or Us. If any term or provision of these Terms of Service shall to any extent be held to be invalid, illegal, or unenforceable, the remainder of these Terms of Service shall not be affected thereby and shall be valid, legal, and enforceable to the fullest extent permitted by law.
XVII. WAIVER: Neither You, nor We, shall be deemed to have waived compliance by the other of any provision of these Terms of Service, unless the waiver is contained in a written instrument signed by the waiving party. Our failure to enforce at any time any of the provisions of these Terms of Service or to exercise any right contained in these Terms of Service shall not be construed to be a waiver of such provisions, nor shall Our failure to enforce a similar right against another party constitute a waiver against You.
XVIII. COMPLAINTS. If you have trouble with the Services or the Products, You may contact Us at contactus@pranksanonymous.com with your concerns and Complaints.
XVIII. MODIFICATIONS TO PRICES, SERVICES, OR PRODUCTS. We reserve the right, at any time and in our sole and absolute discretion, before or after You have ordered a Product or Service, to change, cancel, or modify the Services or Products. In the event you have already ordered a Service or Product, You will be given the option of applying the purchase price of such Service or Product to the purchase of a different Service or Product or a refund of the full amount paid for the Service or Product, less a Five Dollar ($5.00) cancellation fee. The modifications set forth herein shall also include the right to change the following with respect to the information contained on our website, these Terms of Service, and Our Privacy Policy: typographical errors, omissions, inaccuracies, pricing, promotions, shipping charges, or any other information set forth in these Terms of Service, Our Privacy Policy, or Our website reasonably deemed by us to be erroneous. We reserve the right to refuse the Services or Products to You without prior notice. We will not refuse the Services or Products on the basis of your sex, gender, race, religion, national origin, or disability.
XIX. TERMINATION. These Terms of Service shall survive Your use of the Product or Services or Our website. Neither You, nor We, may terminate these Terms of Service. These Terms of Service become effective upon Your use of the Product or Service.
XX. COMMUNICATIONS. All communications contemplated hereby will be directed to You through the information You have provided in securing the Services or Products. You may contact Us for any reason contemplated by these Terms of Service.