INDEMNIFICATION, RELEASE, AND HOLD HARMLESS.
By using What Prank and the website whatprank.com, along with all services and products offered through our business and website, 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 WE OFFER FOR SALE THROUGH OUR WEBSITE, PARTNER WEBSITES, ONLINE MARKETPLACES AND BRICK AND MORTAR STORES. 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.
VII. OPTING OUT OF ARBITRATION. YOU HAVE A RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT by contacting Us within two (2) days of your acceptance of these Terms of Service through the purchase of one of our products or services. To effectively opt out of this Arbitration Agreement, the following information must be sent to email@example.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 Addendum A of the Terms of Service for whatprank.com"; (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. 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 firstname.lastname@example.org.
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 email@example.com with your concerns and Complaints.
XIX. TERMINATION. These Terms of Service shall survive Your use of the Product or Services or Our website whatprank.com. Neither You, nor We, may terminate these Terms of Service. These Terms of Service become effective upon Your use of the Product or Service and are non-negotiable.
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.