THE ARBITRATION CLAUSE IN SECTION 23.4 OF THIS AGREEMENT STATES THAT A MAJORITY OF DISPUTES BETWEEN US ARE TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS VIA FINAL AND BINDING ARBITRATION WITHOUT THE NEED TO GO TO COURT. FOR FURTHER DETAILS ABOUT THE ARBITRATION CLAUSE AND INSTRUCTIONS ON PTING-OUT, PLEASE REFER TO SECTION 23.4 OF THIS AGREEMENT.
- REGISTRATION. You can choose to merely browse through our website or you can choose to create an account with us and register at Penguin Health, though having an account is not necessary for ordering products. However, in order to create an account or order a product you will be required to provide us true, current, complete and accurate information about you (defined below) and if we find that the information you have provided is in some way not true, current, complete and accurate then we may choose to stop your access to our Site or services (or a part thereof).
Order Acceptance. After you have placed an Order with us, an email will be sent to the email address provided by you to confirm you address and/or a call will be made to verify the Order. When you place an Order using our Site we consider it an offer from you to purchase that Product(s) and we might choose to process and ship the Product(s) to imply that we have accepted your Order. Receiving an Order confirmation receipt through electronic or other means does not signify that we have accepted your order nor does it signify an offer on our part to sell you Products. Penguin Health only considers an Order as accepted once the ordered Product(s) have been shipped to you. Additional details or verifications may be required of you before the acceptance on any Order. Once Penguin Health has shipped all of the ordered Products to you they are considered to be accepted by you and once we transfer the Products to a common carrier you will officially become the owner of and will become responsible for the potential loss of the Products. The approximated date for shipments that Penguin Health provides you only takes into account the availability of the ordered Products and the time it takes to process payments, and does not include the time taken to transport the Products.
Order Cancellation. Penguin Health has the right to cancel Orders for any discontinued or otherwise unavailable Products and we will give you a refund for the sum you paid for the Products.
Returns and Exchanges. Every Product sale at Penguin Health is subject to our return policies that are current to that time and will be shown to you upon the placement of your Order through our Site. You can access the most recent version of our returns and exchanges policy by going on (___).
Restrictions on Resale. We prohibit the resale of our Products intended for personal and/or business profit in order to protect the intellectual property rights of Penguin Health as well as our suppliers and licensors. We have the right to decline any orders that we believe may have relations to reselling attempts. If any attempts at unauthorized resale come to our knowledge, Penguin Health will not hesitate to actively protect its intellectual property rights.
International Importation. Through the use of this phrasing, customers from Canada, the United Kingdom and the European Union are appointed as the importers for the goods and have given authorization to our custom brokers to import the goods on their behalf. You are the importer of goods into your country, since the goods are transported from outside of Canada, the United Kingdom and The European Union, and therefore you are responsible for the payment of any taxes, GST, VAT and/or custom duties owing on the goods. Our custom broker will work with you to make things easier as well as speeding up the process of delivery by importing on your behalf and dealing with any custom formalities (for example, the filing of any custom declarations). You consent to the custom broker handling custom formalities as well as paying taxes, GST, VAT and/or customs duties on your behalf and in your name. You are aware that these changes and taxes have already been part of the order total given to you during checkout and charged to your method of payment.
- Fees and Purchase Terms
- Payment. You must provide the necessary information requested on the Site by Penguin Health in order to pay for your Order, such as your billing details and your shipping address. Payments can be made using credit card or any other method available on the Site at that time, including but not limited to PayPal, Amazon Pay, Affirm and Google Pay (a “Payment Provider”). When you provide us with your payment information, you are paying for your Order and authorizing us to charge your chosen Payment Provider at our convenience but before the end of the 30 days after you credit card was authorized. You represent and warrant that you will only use Payment Providers that you have been authorized to use. We will assume that our customers that have provided the necessary information for the process of placing an Order are over the age of 18 as Orders require customers to own a valid credit card .We cannot be held responsible in the event that children or other individuals acting without your knowledge or permission make a purchase on our Site using your credit card or through any other Payment Provider (If your minor children do make such purchases, you represent and warrant that you have given them authorization to do so under your supervision); Nevertheless, you may report such misuse to us and we will take justifiable measures within our means to prevent any further misuse of your card.
- Discounts and Promo Codes. At our own discretion, we may choose to offer redeemable promotional codes and discounts for credit in your account, or other benefits or features, that will each be subject to their own additional terms (“Promo Codes”). Promo Codes can only be used once by each person, cannot be bought and are only valid if they have been sent by Penguin Health’s official communication channels. Regarding Promo Codes, you agree that: (i) they must be used lawfully and by the appropriate audiences and for intended purposes; (ii) they shall not be duplicated, transferred or sold in any way, or offered to the general public (such as through a public forum), without out permission; (iii) that we may choose to disable them at any time and for any grounds without any liability; (iv) they should be used in accordance with the terms that have been established for that particular Promo Code; (v) that they cannot be used for monetary gains; and (vi) that they could expire before you have a chance to use them.
- PRICING AND PRODUCTS. We do our best to be accurate in the way we display our Products and their colour. Nevertheless, the way you see the colour of our Products will depend on your monitor and so we make no guarantees about how accurately the colour of our Products will be displayed on your monitor. The Products you see displayed on our Site may be out of stock or discontinued and the pricing may change before an Order is submitted. The price of an item cannot be confirmed until it is time for you to pay for your Order. We strive to provide you with accurate pricing but we cannot deny that some items on our Site may be mispriced. In accordance with the relevant laws, we have no responsibility for any typographical errors with regards to pricing and we have the right to fix these errors at any time. The pricing displayed on our Site does not include sales taxes, GST, VAT, shipping and handling, or any customer charges or duties (such as brokerage fees) that, wherever applicable, will be added to your total before payment of Order. The payment of any state, VAT, GST, provincial and local sales or use tax as well as any shipping and handling charges that may be relevant to your Order, will be your responsibility.
- Third-Party Materials. You may be able to access materials controlled by a third party through our Site and/or Services. You agree that there is no way for Penguin Health to track these materials or your access to these materials and you access them at your own risk.
- RULES REGARDING INFORMATION AND OTHER CONTENT. We call all the information and materials that you will have access to on our Site and Services “Content”. You agree that you will not make changes to content posted by anyone else and you represent and warrant that Content posted by you will not:
- Infringe on the trademark, copyright, trade secret or any other intellectual property or proprietary right of others;
- Violate relevant publicity, privacy or any other rights of third parties or other relevant law, regulation, statute or ordinance;
- Contain any falsehoods or inaccuracies or become false or inaccurate at any time;
- Contains any language that can be considered unlawful, obscene, discriminatory, fraudulent, defamatory, threatening, harmful, indecent, vulgar, pornographic, hateful, discourteous, tortuous or racially, ethnically, sexually, religiously or otherwise offensive at our discretion;
- Divulge or offer information that is protected by any law, agreement or depositary relationship, including but not limited to the information of others that may be confidential or proprietary;
- Contain any false information regarding your identity in any way;
- Have any Trojan horse, viruses, worms, malware, spyware, time bombs, cancelbots other disabling devices or other damaging component aiming to damage, interfere in a unfavourable way, underhandedly intercept or expropriate any data, system or personal information;
- Support or encourage illegal activity of any kind; or
- Have the potential to make us liable or make us infringe any requirements of or lose part or all of the services of our internet service providers or other suppliers.
Though as a user, when you upload, email, transit, post or make otherwise available, Content on our Site (“Your Content”), you are giving Penguin Health a fully paid, binding, royalty-free, global, perpetual, non-exclusive and fully sublicensable right (moral rights included) and licence to use, licence, reproduce, distribute, adapt, alter, publicly perform, derive works from, derive revenue or other remuneration from, display publicly, and convey to the public, Your Content (all or in part) and/or to integrate it into other works in any form, technology or media currently existing or developed later, for as long as allowed by any global intellectual property right, including moral rights, existing in Your Content. Any information within the Content you post can be searched, altered, used ore reproduced by other Users as this Content is posted in the “public” area of our Site. You certify that within your Content, owners of any global intellectual property right, moral rights included, has wholly and effectively waived all such rights as well as officially and irrevocably granted you the right to grant the above stated licence. You are in agreement that you take responsibility for any of Your Content on our Site and not Penguin Health.
- General User Conduct Rules. We strive to make the experience of anyone accessing our Site and Services a good one. You are in agreement, and represent and warrant, that your use of our Site will not include selling, copying, reproducing, duplicating or exploiting our Products or any part of our Site or Services, your access to our Site and Services, or your use of our Site and Services for any purposes except for those for which our Site and Services were created, or carry out any of the following:
- The performance or encouragement of any illegal activities through our Site;
- Uploading, printing or distributing any Content that may be harmful to minors;
- Make any attempts at endangering or reverse engineering the way our Site functions or make any other attempt to derive our software’s source code (such as methods, tools, infrastructure and processes) that enables or underlies our Site;
- Make any attempts to gain access to the secure parts of the Site or Services that you do not have the right to access.
- Make any attempts to transmit or upload any virus, Trojan horse, worm or other malevolent code;
- Creating any unwanted advertisements or spam through our Site or Services;
- Harming, harassing or stalking others through our Site or Services;
- Utilizing any high volume electronic, manual or automatic process in order access, harvest or search information from our Site or Services (including but not limited to spiders, scripts or robots);
- Disrupt, through any method, the correct functioning of our Site of Services, disrupt any networks or servers connected to our Site or Services, or defy any requirements, policies, regulations or procedures related to networks connected to our Site or Services;
- Utilizing spiders, robots or any other automatic device or manual process to extract, “mine”, monitor, “screen scrape” or copy any dynamic or static web page within our Site or any Content within such web pages for commercial use without any express written permission is issued by us;
- Imitate a person or entity or falsify your association with a person or entity in any way; or
- Place pop-up over many of the pages within our Site, frame or mirror it or any Content within it, or affect the display of its pages in any way.
- FEEDBACK. When you offer us any ideas, comments, criticisms, thoughts, suggested enhancements or other such feedback regarding our Products, Site or Services (“Feedback”), you are agreeing that we have permission to use such Feedback in order to make changes to our Products, Site and Services and that we will not have to give you compensation, such as royalty associated to any Product or Service that integrates your Feedback. You have given us global, royalty-free, perpetual, fully paid and irrevocable licence to use, change, reproduce, distribute, translate, perform, import, sell, offer for sale, display, create, have created and exploit in any other way the Feedback you provide in any form, media or technology, whether currently existing or developed later, and given permissions to others to do the same. This is true whether Feedback has been provided to us through our Site or using any other method of communication with us, unless we have a separate written agreement with you that shows otherwise.
- REFER A FRIEND. Penguin Health may occasionally offer its customers opportunities to receive rewards for future purchases from www.penguinhealth.co by referring other real people (“Penguin Health Refer-a-Friend Program”). You certify that you have read and understood the Terms and Conditions of Penguin Health Refer-a-Friend regarding information in relation to this program. Only U.S. customers have access to this service.
- DISCLAIMER WARRANTIES. UNDER RELEVANT LAW TO THE CONTRARY, THIS SITE AS WELL AS ALL THE CONTENT, SERVICES ND PRODUCTS CONTAINED WITHIN OR ACCESSED THROUGH OTHER MEANS USING THIS SITE ARE PROVIDED BY PENGUIN HEALTH “WITH ALL FAULTS”, “AS IS” AND “AS AVAILABLE”, UNLESS SPECIFIED OTHERWISE IN WRITING. TO THE FULL DEGREE THAT THE RELEVANT LAW PERMITS, PENGUIN HEALTH MAKES NO KIND OF WARRANTY OR REPRESENTATION, WHETHER STATUTORY OR COLLATERAL, EXPRESSED OR IMPLIED, REGARDING THE OPERATION OF THIS SITE OR THE CONTENT, SERVICES, OR PRODUCTS CONTAINED WITHIN, OR MADE AVAILABLE TO YOU BY OTHER MEANS THROUGH THIS SITE, UNLESS SPECIFIED OTHERWISE IN WRITING, INCLUDING, BUT WITH NO LIMITATIONS TO, ANY CONDITIONS OR WARRANTIES REGARDING QUALITY, MERCHANTABILITY, DURABILITY, APPROPRIATENESS FOR ANY GENERAL OR PARTICULAR USE OR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ACCURACY. YOU ARE IN EXPRESS AGREEMENT THAT YOU USE THIS SITE AT YOUR OWN RISK.
IN ACCORDANCE WITH RELEVANT LAW TO THE CONTRARY, WE DO NOT MAKE ANY WARANTY OR PREPRESENTATION THAT OUR SITE, SERVICES OR PRODUCTS WILL MEET YOUR REQUIREMENTS, OF THAT OUR SITE AND/OR SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE; WE ALSO DO NOT MAKE ANY WARRANTIES OR REPRESENTIONS REGARDING THE RESULTS OBTAINED THROUGH THE USE OF OUR SITE, SERVICES OR PRODUCTS OR THATANY DEFECTS IN OUR SITE, SERVICES AND/OR PRODUCTS WILL BE FIXED OTHER THAN AS DETAILED IN OUR RETURNS POLICY. YOU UNDERSTAND AND AGREE THAT YOU TAKE SOLE RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA RESULTING FROM DOWNLOADING ANY MATERIAL AND/OR USING ANY PRODUCT, UNLESS THIS LOSS OR DAMAGE IS A RESULT PENGUIN HEALTH’S WILLFUL MISBEHAVIOUR. WE WILL NOT TAKE ANY WARRANTY, GUARANTEE, REPRESENTATION OR CONDITION REGARDING ANY ADVICE OR INFORMATION, ORAL OR WRITTEN, THAT WE HAVE RECEIVED FROM YOU THROUGH OUR SITE, SERVICES OR THROUGH OTHER MEANS.
- LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT ONLY IF YOU ARE IN AGREEMENT WITH CERTAIN LIMITAIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES WILL WE BE WILLING TO PROVIDE YOU WITH ACCESS TO OUR SITE AND SERVICES, AND SELL YOU OUR PRODUCTS. YOU UNDERTAND THAT TO THE FULL DEGREE THAT THE RELEVANT LAW PERMITS, AND IN ACCORDANCE WITH ANY NON-EXCLUDABLE CONSUMERS RIGHTS THAT YOU MAY HAVE, UNDER NO CIRCUMSTANCE WILL WE OR OUR EMPLOYESS, OFFICERS, PARENTS, DIRECTORS, SUBSIDIARIES, AGENTS, AFFILIATES OR LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT IN LIMITATION TO, DAMAGES FOR LOSS OF PROVFITS, GOODWILL, REVENUE, DATA, USE, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INDEFINABLE LOSSES (EVEN WHEN THESE PARTIES WERE ADVISED OF, WERE AWARE OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND DESPITE THE FAILURE OF CRUCIAL PURPOSE OF ANY LIMITED REMEDY), OCCURING DUE TO OR RELATED TO YOUR USE OF OR ACCECC TO, OR THE FAILURE TO USE OR TO GAIN ACCESS TO, OUR SITE, SERVICES OR PRODUCTS, WITHOUR REGARD TO WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, STATUTE, TORT (SUCH AS STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE. WE DO NOT TAKE LIABILITY FOR AN TRANSACTIONS THAT OCCUR BETWEEN YOU AND THRID PARTY MERCHANT SITES OR ANY INFORMATION THAT APPEARS ON ANY THIRD PARTY MECHANT SITES OR OTHER SITES LINKED TO OUR SITE. TO THE FULL EXTENT THAT THE RELEVANT LAW PERMITS AND IN ACCORDANCE WITH YOUR NON-EXCLUDABLE CONSUMER RIGHTS STATED BELOW, OUR EVERALL LIABILITY TO YOU REGARDING ALL CLAIMS ARISING FROM OR IN REALTION TO OUR SITE SERVICES OR PRODUCTS IS LIMITED, COLLECTIVELY, TO THE GREATER OF (I) THE TOTAL AMOUNT OWED FOR PRODUCT ORDER(S) THAT GAVE RISE TO OUR LIABILITY AND (II) FIFTY DOLLARS ($50.00 USD).
Certain jurisdictions do not permit the exclusion of particular warranties or the exclusion or limitation of liability, such as for consequential or incidental damages. As such, you may not need to abide by some of the above mentioned limitations and disclaimers. To the degree that we may not, as a matter or relevant law, disclaim any implied condition, warranty or guarantee, or limit liabilities, the extent and duration of the condition, warranty or guaranteed and the scope of our liability will be the minimum allowed by such relevant law.
- Procedure for Making Claims of Copyright Infringement. Penguin Health has the policy to take away Site privileges from any user who has infringed on copyright multiple times upon immediate notification to Penguin Health by the copyright owner of the legal representative of the copyright owner. Without placing limits on the foregoing, if you have reason to believe that someone has copied or posted your work on our Site and/or Services through any means that constitutes copyright infringement, please provide the following information to our Copyright Agent: (1) a signature, electronic or physical, by the person authorized to represent the owner of the copyright interest; (2) a detailed description of the work that you believe has been infringed; (3) a detailed description of the location of your infringed work within our Site and/or Services; (4) your telephone number, email address and address; (5)a written statement by you that states that you have good faith belief that the copyright owner, its agent or the law did not authorize the disputed use; and (6) a statement by you, under penalty of perjury, that the information declared above in your notice is correct and that you are owner of the copyright or you are acting as a representative of the copyright owner. You may contact Penguin Health’s Copyright Agent for notice of claims or infringement through the following: ___
- INTERNATIONAL USERS. People in countries from various parts of the world have access to our Site and our Site may mention Services and Products that are not available in your country. The mention of these Services and Products does not imply that Penguin Health has the intention of introducing these Services or Products to your country. Penguin Health’s Site and Services are controlled and offered through their facilities in the United States of America. Penguin Health does not make any representations that our Site or Products will be available to you in other locations. Accessing our Site or Services from other jurisdictions is your decision and you will be responsible for following local law. If you are located in the countries below, the subsequent provisions apply to you.
- United Kingdom. Third parties who are not a party to the Terms does not have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision within the Terms, but this has no effect on any remedy or right of such third party that exists or is available from the Act.
- Germany. In spite of anything to the contrary in Section 14, Penguin Health are not responsible for acts of simple negligence (unless they lead to a individual’s injury or death), except when they are the result of a violation of any significant contractual obligations (vertragswesentliche Pflichten).
- Dispute Resolution, Mandatory Arbitration, Class Action and Jury Trial Waiver. Please take time to carefully go through the following arbitration agreement in this Section 23.4 (“Arbitration Agreement”). This agreement requires that you arbitrate disputes with Penguin Health and places limits on the manner in which you may seek out relief from us. In this agreement, “Penguin Health”, “we” or “us” include the Penguin Health Parties.
- Applicability of Arbitration Agreement. You are in agreement that any claim or dispute in relation to your use of or access to our Site, or the Products we sell and distribute through our Site, to any of our advertising for our Products or Site, or this Arbitration Agreement, or to any part of your customer relationship with Penguin Health, shall be resolved by binding arbitration and not in court, except that (1) you or we declare claims in small claims court if they qualify and remain exclusively in such court; and (2) Penguin Health or you may seek reasonable relief in court for infringement or other mishandling of intellectual property rights (including domain names, trademarks, trade dress, trade secrets, patents and copyrights). This Arbitration Agreement applies, with no limitations, to all claims that were made or were contended before the effective date of this Arbitration Agreement or any previous version of this Arbitration Agreement.
- Arbitration Rules and Forum. The interpretation and enforcement of this Agreement is governed by the Federal Arbitration Act. In order to start an arbitration proceeding, a letter requesting an arbitration and describing your claim must be sent by you to our registered agent, National Registered Agents, Inc. 160 Greentree DR. Ste 101, Dover, DE 19904. JAMS, an established provider of alternative dispute resolution, will conduct the arbitration. Disputes that involve claims and counterclaims below $250,000, excluding attorneys’ fees and interest, will be subject ot JAMS’s most recent version of the Streamline Arbitration Rules and procedures that can be found at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subjected to JAMS’s most recent version of the Comprehensive Arbitration Rules and Procedures, which can be found at http://www.jamsadr.com/rules-comprehensive-arbitration/. You can also access JAMS’s rules through www.jamsadr.com or by through phone by calling JAMS at 800-352-5267. If JAMS is unavailable for arbitration, then an alternative arbitral forum will be chosen by the parties. If it is found by the arbitrator that you are unable to pay JAMS’s administrative, filing, hearing and/or other fees and are unable to obtain a waiver from JAMS, Penguin Health will assist you in paying them. Additionally, Penguin Health will reimburse any of the JAMS’s administrative, filing, hearing and/or other fees for claims that total less than $10,000 unless it is determined by the arbitrator that the claims are frivolous. By your choice, an arbitration can be done over the phone, based on written submissions, or in person within the country where you reside or at another mutually agreed upon location. Judgement on any award given by the arbitrator can be entered into any court with competent jurisdiction.
- Authority of Arbitrator. The arbitrator has the sole authority to (A) determine the extent and enforceability of this Arbitration Agreement; and (B) resolve disputes in relation to the applicability, interpretation, formation or enforceability of this Arbitration Agreement including, but in no limitation of, any claim that says that all or part of this Arbitration Agreement is void or is voidable. It is the arbitrator’s job to decide what your and Penguin Health’s liabilities and rights are, if any. There will be no consolidation of the arbitration proceeding with any other matters or combination with any other case or parties. The arbitrator will be given the authority to grant motions determinative of all or part of a claim. The arbitrator will be given the authority to grant monetary damages and also to grant any non-monetary relief or remedy available to the person under relevant law, the arbitral forum’s rules as well as the Agreement (which includes the Arbitration Agreement). A written award as well as a statement of decision detailing the important findings and conclusions upon which the award is based, such as the calculation of any awarded damages, will be issued by the Arbitrator. The authority given to an arbitrator for awarding relief on an individual basis is the same as that of a judge within a court of law. The arbitrator’s award is final and binding for both you and Penguin Health.
- Waiver of Jury Trial. YOU AND PENGUIN HEALTH HEREBY DECLARE THAT YOU WAIVE ANY STATUTORY OR CONSTITUTIONAL RIGHTS TO SUE IN COURT AND HOLD A TRIAL PRESIDED BY A JUDGE OR JURY. You and Penguin Health will instead opt for the resolution of all claims and disputes through arbitration under this Arbitration Agreement, except in the situations specified in Section 23(d)(i) above. The authority given to an arbitrator for awarding relief and damage on an individual basis is the same as that of a judge within a court of law and must adhere to this Agreement as would be done by a court. There is, however, no judge or jury in an arbitration, and court review for an arbitration award is very limited.
- Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES AND CLAIMS CONTAINED IN THE SCOPE OF THIS ARBITRATION AGREEMENT HAVE TO BE ARBITRATED INDIVIDUALLY AND NOT AS A CLASS OR A COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS ACCESSIBLE, AND CLAIMS BY ONE OR MORE PERSON(S) CANNOT BE CONSOLIDATED OR ARBITRATION WITH THOSE OF OTHERS. If a decision that has been issued states that relevant law prevents the enforcement of any of the limitations within this subsection regarding a given claim for relief, that and only that claim for relief has to be detached from the arbitration and brought to the state or federal courts located in Los Angeles County, California. Other claims will be arbitrated.
- 30-Day Right to Opt Out. You reserve the right to opt out of the provisions within this Arbitration Agreement through the delivery of a written notice regarding your decision to opt out at: email@example.com, within the 30 day window after you first became subject to this Arbitration Agreement. Your notice needs to have your name, address, your Penguin Health username (if it exists), the email address used to create your Penguin Health account (if it exists), and an clear statement conveying your desire to opt out of this Arbitration Agreement. Choosing to opt out of this Arbitration Agreement will not change the fact that all other parts of this Agreement still apply to you. Though you may be opting out of this Arbitration Agreement, there will be no effect on other arbitration agreement entered by you with other Penguin Health Parties or that you choose to enter with any Penguin Health Parties moving forward.
- Severability. If it is found that any part or parts of this Arbitration Agreement is invalid or unenforceable by the law, such part or part(s) in particular will have no force or effect and will severed and the rest of the Arbitration Agreement will continue to be enforced and in effect in full.
- Survival of Agreement. Despite the termination of your relationship with Penguin Health or the Agreement, this Arbitration Agreement will continue to take effect.
- Export Control. To the fullest extent that the relevant law permits, you are not allowed to use, import, export or transfer any of Penguin Health’s Products or materials except that which is authorized by U.S. law, the laws of the jurisdiction where you received Penguin Health’s Products or materials, and any other relevant laws. Specifically, but in no limitation to, to the full degree that the relevant law permits, Penguin Health’s Products and materials cannot be exported or re-exported (a) into any countries embargoed by the United States; or (b) to any person on the Specially Designated Nationals list of the U.S. Treasury Department or the Denied Person’s List of the U.S. Department of Commerce or Entity List. Through your use of Penguin Health’s Products and materials, you represent and warrant that (i) you are not part of any country subject to a U.S. Government Embargo, or that has received the designation of “terrorist supporting” country by the U.S. Government and (ii)you are not on any of the U.S. Government’s list of restricted or prohibited parties. You also shall not use Penguin Health’s Products or materials in any way that is prohibited by U.S. or other relevant laws, such as the design, manufacture, development or production of missiles, chemical, biological or nuclear weapons. You acknowledge and are in agreement that Penguin Health’s services, products and technologies are subject to the United States’ export control laws and regulations. You will obey these laws and regulations and will not export, re-export or transfer Penguin Health’s services, products or technology, indirectly or directly, into any country that breaches such laws and regulations, without prior authorization from the U.S. government.
- Force Majeure. Without placing limits on the foregoing, under no conditions will Penguin Health have liability for the failure or delay in performance due directly or indirectly from acts of forces, nature or causes that are beyond our reasonable ability to control, including but not limited to, the failure of computer equipment, failures of the Internet, failures of telecommunication equipment, failure of other related equipment, strikes, power failure, riots, labour disputes, civil disturbances, the shortage of transportation facilities, energy, fuel, material or labour, floods, fires, storms, explosions, pandemics, act of God, war, the acts of military of civil authorities, orders given by foreign or domestic courts or tribunals, or the non-performance of third parties.
- Consumer Complaints. In agreement with California Civil Code §1789.3, you can file any complaints that you may have to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by writing to them at 400 R Street, Sacramento, CA 95814, or through telephone at (800) 952-5210.