The following are the terms and conditions for use of www.PrankPhone.com and its services (the "Website") and the PrankPhone Mobile Application and its services (the "Application") (collectively the Website and the Application are referred to as the "Services"). The Services are owned and operated by KickBack, Inc. d/b/a PrankPhone ("PrankPhone," or "us," or "we").
By downloading or using the Application, accessing the Services, continuing to access the Services, or submitting any information through the Services, and in consideration for the services PrankPhone provides to you, YOU (the terms "you" or "yours" includes the person or entity that is accessing the Services as well as any third-parties accessing the Services on your behalf) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS GOVERNING THE USE OF THE SERVICES (the "Terms"). Use of the Services is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices, including the class action waiver, contained herein.
The PrankPhone Website, Application, and Services allow users to initiate prank telephone calls to their friends with prerecorded scripted pranks. The initiating user is a party to these prank telephone calls. The Services are provided for entertainment purposes only. While some of the Services may be available for free, you can also make purchases, or undertake certain activities, to increase the Services' functionality, like increasing the number of calls you can initiate or to activate other features. PrankPhone does not guarantee refunds for any purchases.
You are solely responsible for the calls you initiate through the Services and ensuring that the calls comply with the federal and state laws applicable in the states in which you and the call recipient are located. You are strictly prohibited from using the Services to defraud, cause harm, wrongly obtain anything of value, send indecent or obscene content, or to annoy, abuse, threaten, harass, or make repeated telephone calls to another person. You may not use the Services for any commercial purposes. You must be at least 18 to use the Services and you may not initiate a call through the Services to anyone under age 18.
You are strictly prohibited from using PrankPhone to call emergency lines, health care facilities, government agencies, employees or officials, law enforcement, schools, numbers assigned to radio common carrier services, or any service for which the called party is charged for the call, unless the call is made with the prior express consent of the called party. You are prohibited from using PrankPhone to call any recipient that is prohibited by law or regulation. Those using the Services for prohibited purposes may be subject to certain identification requirements and prosecution.
PrankPhone routinely records the telephone calls made through the Services. You represent and warrant that you consent to the recording of any telephone call which you initiate through the Services and that you comply with all state and federal laws applicable to the recording of the telephone conversations initiated through the Services, including laws applicable to the states in which you and the call recipient are located.
You represent and warrant that the recipient of any call you initiate through the services is not located in any the following states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, Vermont, and Washington.
PrankPhone may also publicly post, or allow users to publicly post, the recording from any telephone conversation initiated through the Services. You represent and warrant that the posting of a recorded telephone conversation you initiate through the Services will not violate any state or federal law applicable to the states in which you and the call recipient are located.
If you want to block your telephone number from receiving prank calls from the Services, use the form available at http://www.PrankPhone.com/block. Please allow at least ten business days for your request to become effective.
Registration. In order to utilize some of the Services' features, you must register and create an account. In order to create an account, you must complete the registration process by providing PrankPhone with complete and accurate information as prompted by the registration form, including contact information, a username, and password. You may also need to set up a pin number to use certain features. You shall protect your password and pin number and take full responsibility for your own and third party activities that occur under your account. You agree to notify PrankPhone immediately of any unauthorized use of your account or any other breach of security. If you create an account on behalf of an entity, these Terms bind both you and the entity.
Refusal of Service. PrankPhone reserves the right, with or without notice, to terminate the account of, or refuse service to, any persons that violate these Terms, violate any party's intellectual property rights, abuse other users of the Services, misuse the Services, or otherwise engage in inappropriate conduct, as determined by PrankPhone in its sole discretion.
Payment. If you make any purchases through the Application or the Services, you agree to pay all applicable fees for those purchases. Unless otherwise stated, all fees are stated in U.S. Dollars.
Age Restriction. By using the Services, you represent and warrant that you are 18 years of age or older. You may not use the Services to place calls to any person who is under 18 years of age.
Data Importation. The Services may allow you to import contact information from a contact list or other data source created by other another program not affiliated with PrankPhone. If you choose to import data into PrankPhone from any other source, you represent that you have the authority to import that data and that your importation of that data does not violate the rights or terms of any third-parties.
PrankPhone reserves the right to change or modify any of the terms and conditions contained in these Terms or any policy governing the use of the Services, at any time, by posting the new terms on the Website or Application. The most current version of these Terms will be located on the Application and on the Website. You understand and agree that your access to or use of the Services is governed by the then-current Terms that are effective at the time of your access to or use of the Services. If we make material changes to these Terms, we will notify you by email or by updating the "Updated" date indicated at the top of this page with the date that revisions to these Terms were last made. You should revisit these Terms on a regular basis as revised versions will be binding upon you. Any such modification will be effective upon our posting of such new Terms. You understand and agree that your continued access to or use of the Services after the effective date of modifications to the Terms indicates your acceptance of the modifications.
Except as expressly provided for in the non-exclusive license contained in Section V herein, PrankPhone expressly reserves all right, title, and interest in and to the Services and the Services' content, including any copyright, patent, or trademark or other intellectual property right, or federal or state right, pertaining thereto.
License. In order to use some of the Services' features, you need to download the Application. Subject to, and in accordance with, these Terms, PrankPhone grants to You, and You accept from PrankPhone, a limited, revocable, non-exclusive, and non-transferable license to use the Application and its services. PrankPhone reserves all rights not expressly granted to You hereunder. This license is automatically revoked if you violate any of these Terms.
Payment Terms. PrankPhone may make all or some of the Application and the Services available for free (the "Free Services"). PrankPhone does not guarantee that any portion of the Services will always be available for free and reserves the right to begin charging for any portion of the Services at any time. The Free Services may have reduced functionality. For example, the Free Services may only allow users to place a limited number of telephone calls per day. PrankPhone may allow users to increase or enhance the functionality of the Application and Services by making certain purchases, including in-app purchases, or undertaking certain activities. Please review the specific terms for your applicable purchase. If you make a purchase through the Services, then you consent to PrankPhone storing your payment information. Prices are subject to change. In the event the PrankPhone Services are discontinued for any reason, any tokens or other purchases will terminate and no refund will be made.
Free Trials. PrankPhone may offer free trial offers from time to time. The failure to cancel your free trial during the stated period will result in you being charged for the associated purchases beginning at the end of the trial period. For more details, please review the specific terms of the free trial offer.
Refund Policy. PrankPhone does not guarantee refunds for lack of usage or dissatisfaction. Any tokens, calls, or other purchases made through the Services are nonrefundable.
Personal Use. You may only use the Application and the Services for your own personal use. You may not use the Services for any commercial use.
Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to You to use, receive or view, copies of source code, schematics, master copies, design materials or other information used by You in creating, developing or implementing the Application, including updates or modifications thereto. Without limiting the foregoing, You shall have no rights to receive any source code for the Application and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Application for any purpose.
Prohibitions. You must not do, or permit others to do, any of the following: (a) copy or modify the Application in any way, except as expressly permitted in these Terms; (b) remove or modify PrankPhone's copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Application or Services; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Application's source code or object code or other runtime objects or files distributed with the Application; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application or Services; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Application or Services, in any form, to any third party (including in any service bureau or similar environment); (f) use the Application or Services to process the data of third parties; or (g) use, install, or make available the Application, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP). In addition, You will not violate or attempt to violate the security of PrankPhone' networks or servers, including (x) access data not intended for You or log into a server or account which You are not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing
You are also prohibited from taking any actions in violation of the prohibitions and requirements set forth in Section XII below.
Infringement. If a third party claims that the Application or the Services infringes its patent, copyright or trade secret, or any similar intellectual property right, PrankPhone will defend You against that claim at PrankPhone's expense and pay all damages that a court finally awards, provided that You promptly notify PrankPhone in writing of the claim, and You allow PrankPhone to control and You cooperate with PrankPhone in, the defense or any related settlement negotiations. If such a claim is made or appears possible, You agree to permit PrankPhone to modify the Application or Services in order to attempt to avoid such claims. If PrankPhone determines that this alternative is not reasonably available, You agree to uninstall or return the Application on the PrankPhone's request, and without any further liability or obligation of PrankPhone. Further, PrankPhone shall have no obligation whatsoever for any claim based on Your modification of the Application or Your combination, operation, or use with any product, data or apparatus not specified or provided by PrankPhone. THIS PARAGRAPH STATES PrankPhone'S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
Maintenance or Support. PrankPhone is not under any obligation to provide maintenance or support for the Application. PrankPhone may provide maintenance or support for the Application in PrankPhone's sole discretion.
Third-Party Terms. You must comply with applicable third-party terms of service when using the Application, including any terms required by your mobile carrier.
Apple iOS, Microsoft Windows, and Google-Specific Terms. The following additional terms and disclosures only apply to you if you use the Application through the Apple iOS operating system, the Microsoft Windows operating system, or the Google Android operating system, if available and as applicable:
iOS - Apple
Windows - Microsoft
The Services may use or provide access to one or more third-parties to process payments, process account or user registrations, or provide other services. Your interactions with any of these third-parties is controlled by the terms and conditions imposed by those third-parties. Any disputes arising regarding a third-party's services must be resolved directly between user and the third-party. PrankPhone disclaims all warranties or representations regarding any third-party services.
PrankPhone, in its sole discretion, and without notice to you or any user, may subcontract any Services to be performed by a third-party.
Overview. The Services may, from time to time, allow users and third-parties to upload, post, or otherwise transmit user-generated content, including but not limited to recordings, comments, recommendations, pictures, reviews, images, and other forms of data or communications ("User Content").
User Obligations and License; Intellectual Property. You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively "Post") through the Services and once Posted, it cannot always be withdrawn. You agree not to Post through the Services any User Content which is false, defamatory, infringes upon another party's intellectual property, or is otherwise illegal. By Posting User Content on the Services, you warrant and represent that you have the right to post such information and that such information is truthful and accurate.
By Posting User Content, you automatically grant, and warrant and represent that you have the right to grant, PrankPhone a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, store, copy, perform, display, and distribute such User Content for any purpose and to prepare derivative works of, or incorporate into other works, such User Content.
You assume all risks associated with your Posted User Content on the Services, including anyone's reliance on its quality or reliability. By Posting User Content you may expose yourself to liability if, for example, your Posted User Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Testimonials and Photographs. If you Post or otherwise transmit to PrankPhone a testimonial statement or photograph depicting your results using any PrankPhone service or product, you grant, and warrant and represent that you have the right to grant, PrankPhone a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, copy, perform, display, and distribute the testimonial statement and/or photograph for any purpose, including posting on the Services or using in any PrankPhone advertising materials.
By Posting or sending any testimonials of your results, you represent that the testimonial statement is true, that you used the PrankPhone service or product as directed, and that the testimonial accurately depicts your experience using the PrankPhone service or product.
If you no longer wish PrankPhone to use your written testimonial statement or photograph, please contact us. If we do not hear from you, we will assume you still stand behind your testimonial statement.
If you received any kind of compensation, whether monetary, in the form of a free service or product, or otherwise, you must notify us of this fact when posting or sending your testimonial.
Rules of Conduct. In addition to all other obligations and terms stated in these Terms, you agree to abide by any rules of conduct or community guidelines posted on the Website or Application. PrankPhone reserves the right to exclude or suspend any user who violates these rules of conduct, and reserves the right, but does not undertake an affirmative obligation, to remove, screen, or edit any content which is contrary to these rules without prior notice. User Content does not necessarily reflect the opinion of PrankPhone.
Communications Decency Act. As provided in 47 U.S.C. § 230(c)(1), PrankPhone is only a distributer, and not the publisher or speaker, of any User Content. As such, PrankPhone cannot be held liable for making available any User Content which may be false or inaccurate. Any information or opinions contained in the User Content made available through the services are those of their respective authors alone. PrankPhone does not guarantee the accuracy, completeness, or truthfulness of any User Content. Under no circumstances will PrankPhone be responsible for any loss or damage resulting from any person's reliance on any User Content.
Reservation of Rights. Subject to Section VIII below, regarding the DMCA, PrankPhone reserves the right to remove or not remove any User Content from the Services for any reason or no reason at all, in PrankPhone's sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. PrankPhone reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.
Information Storage and Access. PrankPhone reserves the right, in its sole discretion, to determine whether and how long to store User Content and user data. PrankPhone will not be responsible for any liability related to the deletion or removal or any data or content maintained on the Services or PrankPhone's servers.
Suggestions. By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against PrankPhone and its users any claims and assertions of any rights, whether intellectual property rights or otherwise, contained in such Feedback.
PrankPhone respects the intellectual property rights of others and complies with safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"). Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify PrankPhone's designated copyright agent in accordance with Title 17, United States Code, Section 512(c)(2), by providing the following information:
Notifications of claimed infringement should be forwarded to PrankPhone's designated agent as follows:
Troy F. Meyerson
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
After receiving a valid DMCA notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.
Counter-Notification. If you posted or submitted material to PrankPhone which PrankPhone removed or disabled access to pursuant to a DMCA notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to PrankPhone's designated agent listed above:
If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in 10 business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in 10 to 14 business days after our designated agent's receipt of the counter-notification, at our sole discretion.
PrankPhone reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.
While PrankPhone attempts to provide all Application features to all users, use of the Application and the Services may be limited for some or all users due to conditions outside of PrankPhone's control. As a result, not all advertised features may be available to you at all times. Some of these conditions include, but are not limited to, the following: Your mobile device or your wireless carrier may limit the features available to you. Your data or messaging plan may limit your use of the Services. Your wireless voice and/or data signal may make access to the Applications or some of its feature intermittent or unavailable. The Application and its features may not be available in some geographic locations.
PrankPhone is not liable, and expressly disclaims any representations or warranties, regarding access to the Application or its services or features through a particular wireless carrier, network, or plan, on a particular device, or in a particular location. PrankPhone does not guarantee that the Services will always be accessible or available. You are solely responsible for any costs you incur to access the Application through your mobile device.
PrankPhone does not represent or warrant and expressly disclaims any warranty that (i) any information provided by the Services will be accurate, (ii) the Services will be error-free or accessible at all times, (iii) defects will be corrected, (iv) the Services or the server that makes the Services available, are free of viruses or other harmful component, (v) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable, or (vi) that the Services will be supported on all web browsers or mobile operating systems. It is expressly understood by all users that the Application and the Services may be from time to time be inaccessible, inoperable, or may not provide all features as a result of multiple factors which may or may not be within PrankPhone's control. These factors may include, but are not limited to, variables in internet, telecommunications, data, cellular or satellite services provided by your wireless carrier to your mobile device, geographic limitations, poor wireless signal strength, periodic maintenance to the Services, malfunctions in the Application or the Services, limitations due to your particular mobile device, or any other reason which may prevent the Application and its services from being accessible at all times. PrankPhone disclaims any liability as a result of any user's inability to access or use the Application or the Services at a particular time, location, on a particular device, or using a particular wireless provider.
PrankPhone does not and cannot guarantee that the identity, telephone number, or other personal information for the initiating caller will always remain hidden from the intended recipient. You will not necessarily always remain anonymous.
Further, PrankPhone expressly disclaims any representation or warranty relating to any products or services displayed, described, advertised, reviewed, recommended, linked to, or pictured on the Services. PrankPhone does not endorse any such products or services and does not warrant that any such products or services are available, will meet the user's needs, are appropriate for any particular use, or are of any certain quality. PrankPhone does not guarantee that any product or service descriptions, reviews, portrayals, specifications, or the like are accurate. Under no circumstances will PrankPhone be responsible for any loss or damage resulting from any person's reliance on any such product or service descriptions, reviews, or specifications contained on the Services.
THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY PrankPhone EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. PrankPhone DOES NOT WARRANT THAT THESE SERVICES WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION OR PRODUCTS PROVIDED THROUGH THE SERVICES. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
When you use the Application on your mobile device, your wireless service carrier may charge you data rates, message fees, and related fees.
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third-parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation.
You further represent and warrant that you will not use the Website, the Application, or the Services to defraud, cause harm, wrongly obtain anything of value, send indecent or obscene content, or to annoy, abuse, threaten, harass, or make repeated telephone calls to another person. You represent and warrant that you do not have any intent to commit any of the foregoing actions. You represent and warrant that you will not use the Website, the Application, or the Services for any commercial purposes. You further represent and warrant that you are 18 years of age or older and you will not cause any telephone calls to be placed to any person under 18 years of age.
You are strictly prohibited from using PrankPhone to call emergency lines, health care facilities, government agencies, employees or officials, law enforcement, schools, numbers assigned to radio common carrier services, any service for which the called party is charged for the call, unless the call is made with the prior express consent of the called party. You are strictly prohibited from using PrankPhone to call any call recipient that is prohibited by law or regulation. Those using this site for prohibited purposes may be subject to certain identification requirements and prosecution.
PrankPhone routinely records the telephone calls made through the Services. Certain states allow telephone conversations to be recorded as long as one party to the conversation consents to the recording. Other states do not allow telephone conversations to be recorded unless all parties to the telephone call have knowledge of the recording and consent to the recording. If you initiate a call through the Services, you are party to that call and you must remain on the telephone line during the entire telephone call. You represent and warrant that you consent to the recording of any telephone call which you initiate through the Services and that you comply with all state and federal laws applicable to the recording of the telephone conversations initiated through the Services, including laws applicable to the states in which you and the call recipient are located.
You represent and warrant that the recipient of any call you initiate through the services is not located in any the following states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, Vermont, and Washington.
PrankPhone may also publicly post the recording from any telephone conversation initiated through the Services. PrankPhone may also allow you to post a recorded telephone conversation. If you post any recording of any prank telephone call to any part of the Services, then you represent and warrant that you have all necessary rights and consents to make such posting. Do not post any recordings which contain any personal information. You represent and warrant that the posting of a recorded telephone conversation you initiate through the Services will not violate any state or federal law applicable to the states in which you and the call recipient are located. You further grant, and represent and warrant that you have the right to grant, PrankPhone a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, store, copy, perform, display, and distribute such recordings. You agree to release PrankPhone from any liability with regard to your posting of any recordings to the Services or to any other forum.
You agree to indemnify, hold harmless and defend PrankPhone, its managers, members, directors, employees, agents, or affiliates (collectively the "Indemnified Parties") at your expense, against any and all third-party claims, actions, proceedings, and suits brought against any of the Indemnified Parties, and against all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by the Indemnified Parties arising out of or relating to (i) your breach of any term or condition of these Terms, (ii) your Posting of User Content, (iii) your use of the Services, including, but not limited to, your initiation of any telephone call through the Services or your posting of any recording to the Services or any other forum, or (iv) your unauthorized use of the Services. In such a case, the Indemnified Party or Parties will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. The Indemnified Party or Parties will reserve the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
PrankPhone WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY (A) INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, (B) LOSS OF PROFITS, (C) LOSS OF DATA OR INFORMATION, OR (D) REPUTATIONAL HARM, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF PrankPhone HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, PrankPhone'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (1) THE AGGREGATE FEES PAID BY YOU FOR THE SERVICES SUBJECT TO THESE TERMS DURING THE PREVIOUS SIX (6) MONTHS, OR (2) ONE HUNDRED AND 00/100 DOLLARS ($100.00). YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE WEBSITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
PrankPhone, and any third-parties to which PrankPhone provided your contact information, may contact you via any method of communication you submitted through the services, including, but not limited to, email, cell phone, or text message. By providing PrankPhone your contact information, you agree to receive communications from PrankPhone or other third-parties who obtained your contact information from PrankPhone.
PrankPhone may support the Services by using advertisements. These advertisements may be targeted to the content or information stored on or submitted through the Services. Advertisements may also be targeted based on information stored in cookies or similar objects on your computer or device, including cookies which track your internet usage across sites and over time. The manner, mode, and extent of advertising on the Services are subject to change without notice. PrankPhone may place advertisements on the telephone calls initiated through the Services. You agree that PrankPhone may place advertising on the Services and you agree not to block such advertising.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.
These Terms shall be governed by and construed under the laws of the state of New York without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and New York law, rules, and regulations, New York law, rules and regulations shall prevail and govern. Subject to the mandatory arbitration provision below, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in the State of New York. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms. The products and services provided by PrankPhone hereunder are controlled by U.S. Export Regulations, and they may not be exported to or used by embargoed countries or individuals. Any notices to PrankPhone must be sent to:
P.O. Box 322
New York, NY 10159
via first class or air mail or overnight courier, and are deemed given upon receipt.
The parties hereto agree and understand that any dispute or claim related to your use of the Services, any dispute or claim related to your purchase or use of any products or services sold through the Services, any disputes regarding any alleged breach of these Terms, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce these Terms or for the breach of these Terms, shall be referred to final and binding arbitration, and not in court. The Federal Arbitration Act and federal arbitration law apply to this agreement.
Any arbitration proceeding will take place in the State of New York, subject to the laws of the State of New York and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney's fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
All parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
These Terms (including any amendment agreed upon by the parties in writing) represent the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of these Terms are held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. The relationship between PrankPhone and you is not one of a legal partnership relationship, but is one of independent contractors. These Terms shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.