TERMS AND CONDITIONS
FOR THE USE OF
READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE PROCEEDING. BY PROCEEDING TO MAKE ANY PURCHASE FROM THIS WEBSITE, YOU ARE AGREEING TO THESE TERMS AND CONDITIONS
DO NOT UTILIZE THIS SITE IF YOU ARE NOT IN AGREEMENT WITH THESE TERMS AND CONDITIONS.
THIS CONTRACT CONTAINS AN INDEMNIFICATION, RELEASE, AND HOLD HARMLESS CLAUSE REQUIRING YOU TO INDEMNIFY AND HOLD HARMLESS ShipYourEnemiesGlitter.com FOR ALL DAMAGES RESULTING FROM, OR RELATING TO, YOUR USE OF ANY PRODUCT OR SERVICE YOU PURCHASE FROM, OR USE OF, ShipYourEnemiesGlitter.com, INCLUDING ALL CLAIMS BROUGHT AGAINST ShipYourEnemiesGlitter.com BY THIRD PARTIES TO WHOM YOU CAUSE DELIVERY OF ANY PRODUCT OFFERED BY ShipYourEnemiesGlitter.com. UNDER THIS PROVISION, YOU AGREE TO BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM YOUR USE OF ShipYourEnemiesGlitter.com.
THIS CONTRACT ALSO CONTAINS A BINDING ARBITRATION AGREEMENT THAT AFFECTS YOUR RIGHT TO SUE ShipYourEnemiesGlitter.com WITH RESPECT TO ALL PRODUCTS AND SERVICES UTILIZED BY YOU IN ASSOCIATION WITH THE USE OF ShipYourEnemiesGlitter.com. ANY DISPUTE THAT MAY ARISE BETWEEN YOU AND ShipYourEnemiesGlitter.com WILL BE ARBITRATED. IN ARBITRATION PROCEEDINGS, THERE IS NO RIGHT TO JURY TRIAL OR TO HAVE A JUDGE DECIDE YOUR CASE.
This Contract 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 and Conditions.
I. REPRESENTATIONS FORMING THE BASIS OF THIS CONTRACT
- Our Representations
- ShipYourEnemiesGlitter.com is intended solely for use as a friendly, non-malicious and comical purpose. It is not intended to be used to harm those to whom the Services or Products are directed, but to provide comic relief amongst friends and acquaintances
- We will not disclose Your name to the Recipient, except where a recipient files a claim with Us, or against us, in court or through arbitration proceedings. If a claim is filed, We reserve the right to make any disclosures necessary to defend ourselves in the claim.
II. Representations made by the User
- 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.
- You represent to Us that You are using the Services and Products for purposes of humor and novelty purposes, and not to harass, demean, defame, slander, or cause physical or emotional harm to the Recipient, You, or any third party. You are not using the Services or the Products for purposes that are illegal, immoral, fraudulent, or tortious.
- You represent that You are well-acquainted with the Recipient and are not aware that Recipient has any health conditions, personal illnesses, mental, emotional, or other psychological conditions, or sensitivities that would result from exposure 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.
- 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.
- 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 and Conditions and do understand the consequences of the terms set forth herein.
- You represent that Recipient has not filed suit, threatened to file suit, or made any claims for which, to the best of your knowledge and belief, 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.
- You represent that the address provided for the Recipient is not a business address, and that you are not directing the Products or Services to a business of any kind. You further represent that you have confirmed, personally, that the address to which you have directed the Products or Services is a personal address of an individual, and that such individual does not employ any third parties at such address.
- 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 [email protected], 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 ShipYourEnemiesGlitter.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 SOLELY WITHIN OUR DISCRETION.
III. 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, joke, or in good fun, and not as a malicious or criminal act. You acknowledge that We are not responsible for any adverse consequences caused to the Recipient of any Product. You agree to 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.
- USE OF THE PRODUCTS AND SERVICES. You understand and acknowledge, by clicking the “Agree to Terms and Conditions” checkbox, that We are solely a business engaged in the drop-shipping of products to an address of your choosing and under your direction. By agreeing to these Terms and Conditions, 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 and the terms of this Contract. 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 and Conditions and to request any and all appropriate relief.
- INDEMINIFICATION, RELEASE, AND HOLD HARMLESS. By utilizing ShipYourEnemiesGlitter.com, the Services, or the Products, you agree to the following:
- Settlements and Judgments. You agree to indemnify Us for any resulting judgment, settlement or award issued against Us as a result of Your use of the Services or the Products 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. 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. IN THE EVENT WE ELECT TO RESOLVE A DISPUTE HEREUNDER, WHICH WE MAY DO IN OUR SOLE AND ABSOULTE DISCRETION, 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, WHETHER OR NOT PAID TO COUNSEL FOR US OR TO COUNSEL FOR RECIPIENT.
- Employment of Counsel. 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.
- Failure to Notify. 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.
- Claims by Recipient. 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.
- Use of Products or Services. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US HARMLESS, 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.
- 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.
- 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.
- 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.
- 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 five (5) days of your acceptance of these Terms and Conditions. YOU MUST COMPLY SPECIFICALLY WITH EACH OF THE FOLLOWING REQUIREMENTS IN ORDER TO EFFECTUATE YOUR OPT-OUT OF THE ARBITRATION PROVISION. To effectively opt out of this Arbitration Agreement, the following information must be sent to [email protected]: (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 and Conditions”; (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.
VIII. PAYMENT INFORMATION. Your payment 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 payments through electronic means. Third parties to whom Your payment 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 [email protected].
- BINDING CONTRACT: 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 Contract.
- ENTIRE CONTRACT: These Terms and Conditions 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, whether or not found on Our website or any other medium.
XII. 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 and Conditions) (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 and Conditions shall give You the right to reproduce for any purpose any of the Protected Property.
XIII. OUR RIGHTS IN LAW AND EQUITY. These Terms and Conditions 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.
XIV. GOVERNING LAW AND VENUE. This Contract 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 Contract shall be in a state court located in Hamilton County, Indiana.
- SEVERABILITY: The covenants and acknowledgements contained in these Terms and Conditions shall be construed as separate and independent and this Contract shall not be construed against either You or Us. If any term or provision of these Terms and Conditions shall to any extent be held to be invalid, illegal, or unenforceable, the remainder of these Terms and Conditions shall not be affected thereby and shall be valid, legal, and enforceable to the fullest extent permitted by law.
XVII. 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.
XVI. WAIVER: Neither You, nor We, shall be deemed to have waived compliance by the other of any provision of these Terms and Conditions, 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 and Conditions or to exercise any right contained in these Terms and Conditions 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.
XVII. COMPLAINTS. If you have trouble with the Services or the Products, You may contact Us at [email protected] with your concerns and Complaints.
XIX. TERMINATION. These Terms and Conditions shall survive Your use of the Product or Services or Our website. Neither You, nor We, may terminate these Terms and Conditions. These Terms and Conditions become effective upon Your use of the Product or Service.
- 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 and Conditions.
XXI. DEFINITIONS: “Contract” means these Terms and Conditions. “The User,” “You,” and “Your” means the person, individual, company, or other entity that purchases products from, utilizes the services of, sends products via, or views the website known as “ShipYourEnemiesGlitter.com” by checking the “Agree to Terms and Conditions” checkbox at the “Checkout” screen prior to purchasing Our products or services. “Products” means any and all items offered for sale and delivery on Our website, ShipYourEnemiesGlitter.com. “Services” means the delivery – by whatever means – of any and all Products offered for sale and delivery on Our website, ShipYourEnemiesGlitter.com. “Recipient” means the person to whom the Products are delivered. “Us,” “We,” and “Our” means the website, ShipYourEnemiesGlitter.com, its owners, affiliates, subsidiaries, parents, members, managers, shareholders, agents, employees, heirs, assigns, and insurers.