1. Acceptance of Terms
Prom Again (“Prom Again”) provides its Service (as defined below) to you through its website located at https://www.promagain.com/ (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
Prom Again may change this TOS from time to time without prior notice. You can review the most current version of this TOS at any time at https://www.promagain.com/terms. The revised terms and conditions will become effective upon posting, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop accessing and using the Service.
2. Description of Service
The “Service” includes (a) the Site, (b) Prom Again’s services and related technologies to help customers (“Customers”) receive and send in clothing, and (c) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS.
3. General Conditions/ Access and Use of the Service
Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Prom Again. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. Unless you are a registered Partner, the Service is for your personal use and may not be used for direct commercial endeavors. You shall comply with any codes of conduct, policies or other notices Prom Again provides you or publishes in connection with the Service, and you shall promptly notify Prom Again if you learn of a security breach related to the Service.
Any software that may be made available by Prom Again in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, if you are a Partner of Prom Again, Prom Again hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the Software on the website URLs you provide in your Partner Account solely in connection with the Service, provided that, except for the source code of software made available by Prom Again pursuant to an open source license, you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Prom Again for use in accessing the Service. Any rights not expressly granted herein are reserved and, except as expressly provided herein, no license or right to use any trademark of Prom Again or any third party is granted to you in connection with the Service.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”), whether as a Partner, end-user or otherwise. You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Prom Again reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Service, You hereby do and shall grant Prom Again a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. Prom Again has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Prom Again may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Prom Again’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Prom Again will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
The Service may provide, or third parties such as Partners may provide, links or other access to other sites, and resources on the Internet. Prom Again has no control over such sites and resources, nor Partner sites and resources, and Prom Again is not responsible for and does not endorse such sites and resources. Such third parties or the applicable Partner, and not Prom Again, are the providers of other sites and resources and are solely responsible for providing any goods or services you purchase on third party or Partner sites (“Third Party Offers”). You further acknowledge and agree that Prom Again shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, or Third Party Offers available on or through any such site or resource. Any dealings you have with third parties (including Partners) found while using the Service are between you and the third party, and you agree that Prom Again is not liable for any loss or claim that you may have against any such third party.
The failure of Prom Again to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Prom Again, even though it is electronic and is not physically signed by you and Prom Again, and it governs your use of the Service and takes the place of any prior agreements between you and Prom Again.
If you are a Partner, Prom Again reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Prom Again’s website and in other communication with existing or potential Prom Again partners. To decline Prom Again this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
To the extent the Service or any portion thereof is made available for any fee, you will be required to use Authorize.net. You agree to pay Prom Again the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. If you dispute any charges you must let Prom Again know within sixty (60) days after the date that Prom Again from the date of payment. We reserve the right to change Prom Again’s prices. If Prom Again does, Prom Again will provide notice of the change on the Site, at a reasonable time before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
5. Representations and Warranties
You represent and warrant to Prom Again that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your billing, posting and other activities (and allow Prom Again to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Prom Again’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are of legal age to purchase or sell the types of items represented on the promagain.com website.
You have the right to terminate your account at any time by sending an email to email@example.com. Prom Again reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if Prom Again believes that you have violated this TOS. Prom Again shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Prom Again will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Prom Again. All of Your Content on the Service (if any) may be permanently deleted by Prom Again upon any termination of your account in its sole discretion. All accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS, and all fees paid to Prom Again are non-refundable.
7. DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PROM AGAIN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT PROM AGAIN DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM PROM AGAIN OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL PROM AGAIN BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, PROM AGAIN’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Prom Again from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Prom Again shall provide notice to you of any such claim, suit or demand. Prom Again reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Prom Again’s defense of such matter.
10. Third Party Offers
If you are a Partner, you are the holder and issuer of each Third Party Offer you make available in connection with the Service. As a holder and issuer of the Third Party Offer, Partner represents, warrants and agrees that it shall fully honor and redeem all Third Party Offers and shall be solely and fully responsible for any and all injuries, illnesses, damages, claims, liabilities, losses and costs suffered by or related to a customer concerning any Third Party Offer or caused in whole or in part by Partner. Each Partner hereby waives, and releases and will hold harmless Prom Again and its officers, directors, employees and agents from, any claim, liabilities, losses, damages, or injury arising from or related to any Third Party Offer or any act or omission of Partner in connection with a Third Party Offer or the services or goods provided in connection therewith and/or as it relates to compliance with applicable laws.
You may not assign this TOS without the prior written consent of Prom Again, but Prom Again may assign or transfer this TOS, in whole or in part, without restriction.
12. Governing Law
This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Prom Again in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of San Diego County, California for the purpose of resolving any dispute relating to your access to or use of the Service.
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