Your Representations

1. By Your use of thomasmiles.com to submit a prank, the Services, and request of a prank, You represent to Us that You are using the Services for purposes of humor. You represent that You are not using the Services or Pranks 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 Pranks 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 Pranks. 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 Pranks 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 Pranks, 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, thomasmiles.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 you violate these terms and conditions, a claim is filed with us by a legal representative, a claim is issued through the court system, a request is made through a law enforcement division, or arbitration is initiated, for Your use of the Services or Pranks. 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 Pranks from, utilizes the services of, sends Pranks via, or views the website known as “thomasmiles.com” by checking the “Agree to Terms of Service” checkbox at the “Checkout” screen prior to purchasing Our Pranks or services. “Us,” “We,” and “Our” means the website, thomasmiles.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 Pranks offered for sale and delivery on Our website, thomasmiles.com. “Recipient” means the person to whom the Pranks are delivered. “Pranks” means any and all items offered for sale and delivery on Our website, thomasmiles.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 Pranks, pursuant to Your request. By agreeing to these Terms of Service, you are directing Us to send the Pranks to You or a Recipient subject to the Representations set forth above. Your use of the Services and/or Pranks constitutes Your agreement and confirmation of the above
referenced Representations. You may not use the Services or the Pranks 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 Pranks (upon receipt) to be harmful or offensive. We reserve the right to refuse the Services or Pranks in our sole and absolute discretion. In the event you have paid for the Pranks or Services prior to the time at which we exercise our right to refuse the Services or Pranks, you will be refunded the full amount of your purchase. If it becomes apparent that your use of the Pranks 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 Prank to the Recipient. 

IV. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES. You are responsible for ensuring that the Recipient is in good health and that that the Prank is being delivered to a Recipient who will receive the call 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 Prank. You further acknowledge that by causing the delivery of the Prank, You will be responsible for any injuries – whether personal, pecuniary, or otherwise – resulting from delivery of the Prank. While we will take every step necessary to ensure that all Pranks 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 Prank call. 

V. INDEMINIFICATION, RELEASE, AND HOLD HARMLESS. By utilizing thomasmiles.com, the Services, or the Pranks, 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 Prank 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 Pranks. This provision applies regardless of whether You or We are negligent in provision of the Pranks 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 Prank 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 Pranks 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 Pranks 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 Pranks. 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 Pranks are Your own acts. In the event the delivery of the Pranks or use of the Services is deemed to be a “wrongful act” under Florida law, You agree that such delivery of the Pranks 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 Pranks. 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 Pranks.

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 Pranks.

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. 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 Pranks or Services. You may not assign Your rights under this Agreement.

VIII. 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.

VIIII. 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 Pranks, 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.

X. 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.

XI. 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.

XII. 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.

XIII. 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.