FIND YOUR PENGUIN

Terms of Service

Welcome, and thank you for your interest in Findyourpenguin.com (“Find Your Penguin,” “us” or “we”) and our services made available to you (the "user" or "you") through our website (the "Website" or the “Site”) and anyonline applications or mobile application and tools (the “Apps”).Find Your Penguin.com is owned and operated by Find Your Penguin. The Website and the Apps together constitute our service("the Service"). Unless otherwise specified, all references to the Services include the services available through the Find Your PenguinWebsite orany mobile App, including, but not limited to any personal interaction with any consultant, employee, executive, or officer of Find Your Penguin.The following Terms of Service are a legally binding contract between you and Find Your Penguin regarding your use of the Service.

Please read the following Terms of Service ("Terms" or "Agreement") carefully before accessing or using any of the Service. Each time you access or use the Service, you agree to be bound by these Terms. If you do not agree to be bound by all of these Terms, you may not access or use the Service. In addition, certain areas of the Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.

 

PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.

 

1.  Eligibility for Our Service

     By using our Services, you represent that you are at least 18 years old and are fully able and competent to enter into a contract, including the terms, conditions, representations and warranties set forth in these Terms.

2.  Description of Service

Find Your Penguinis a service providing online dating profile writing, date coaching and relationship adviceincluding, without limitation, personalized guidance in selecting photographs and drafting narratives to produce users’ online persona.

a.   The Serviceincludes (a) Find Your Penguin’s systems, procedures, processes and technologies, and (b) any software, applications, data, reports, and other content made available by or on behalf of Find Your Penguin.

b.   The Service does not include your User Content as defined in this Agreement.

c.   Find Your Penguin reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Find Your Penguin.

3.  Your Access and Use of our Services

a.   Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. Access to our Services may not be available in all locations. You are only entitled to access and use our Services for lawful purposes and pursuant to the terms and conditions of this Agreement and the Privacy Policy.Any action by you that, in our sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of our Services; or (iii) through the use of our Services, defames, abuses, harasses, offends or threatens, shall not be permitted, and may result in your loss of the right to access and use our Services.

b.   The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive Service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.

c.   Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission.  Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.

d.   Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services. 

4.    Proprietary Rights

As between Find Your Penguin and you, Find Your Penguin or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with these Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Find Your Penguin.

5.    Intellectual Property Rights

a.     Find Your Penguin’s names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the "Proprietary Marks"), are owned by Find Your Penguin. You may not use the Proprietary Marks without our prior written permission.

b.     We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.

c.     The information, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, "Our Content"), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.

d.     We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").

6.    Use of Our Content

a.     We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing.

b.     You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.

7.    Accounts and Registration

a.     To access some features of the Service you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You may also be required to provide us with information about you, which may be of a confidential nature and may include personal identifying information and/or financial information ("Your Information"). 

b.     If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity.  You also agree to keep Your Information current and to update Your Information if any of Your Information changes. 

c.     If you have been issued an account by Find Your Penguin in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Find Your Penguin, are responsible for any activity occurring in your account, whether or not you authorized that activity.

d.     Our collection, use and disclosure of Your Information is governed by this Agreement and our Privacy Policy.

8.      Payment

a.     All payments may be completed online through the use of third party payment processing services ("Processors") utilized by Find Your Penguin.

b.     All payments are final and non-refundable for any reason including dissatisfaction with the Services.

c.     Find Your Penguin and the Processors may receive updated credit card information from your credit card issuer or bank. Such updated information is provided at the discretion of your credit card issuer. Neither Find Your Penguin nor the Processors shall be responsible for any distribution of your credit card information.

9.    Consultation and Results

a.     Social relationships and dating activity involve many factors beyond the Services that are provided by Find Your Penguin and we do not guarantee that the use of our service, including without limitation, the services provided by any consultant, employee, executive, or officer of Find Your Penguin, will result in the user successfully securing a date.

b.     Find Your Penguin will provide advice and guidance to you, however you are at all times solely responsible for your interactions, online or in person, with individuals that you select to date or engage in any relationship with.

c.     Find Your Penguin utilizes their experience, knowledge and skill to deliver the Services and disclaims any representation, express or implied, that any consultant, employee, executive, or officer of Find Your Penguin has any relevant professional degree or certification to provide the Services.

10. Your Interactions with Others

a.     You are solely responsible for your interactions with the people you choose to date. You understand that Find Your Penguin currently does not conduct any background checks including, but not limited to, criminal, financial, sex offender or any other background checks or screenings. Find Your Penguin makes no representations or warranties as to the conduct of the people you date or their compatibility with you.

b.     In no event shall Find Your Penguin, its employees, consultants,executives or officers be liable (directly or indirectly) for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with others. You agree to take all necessary precautions in all interactions with the party you date.

11. Dating Websites

Your use of any dating website or platform ("Dating Sites") is controlled by the terms and conditions and privacy policy found on those websites. Find Your Penguin is not responsible for any activity you conduct on the Dating Sites and recommends that you read the privacy policies and the terms and conditions on your online Dating Sites.

12. Suspension and Termination of Services

a.     We reserve the right to modify, suspend or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you.

b.     You can deactivate your account at anytime. Upon termination or deactivation, all licenses and other rights granted to you in these Terms will immediately cease.

c.     We reserve the right to refuse access to the service to anyone for any reason at any time.

13. Interruption of Service

a.     Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.

b.     You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.

14. Third Party Links, Services and Content

a.     The Services may contain features and functionalities linking you to, or providing you with, certain functionality and access to third party services and content, websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When you visit or use a third party’s website you agree to read and consent to the third party’s Terms of Service and Privacy Policy and you release us from any liability.

b.     You acknowledge that we are not responsible for such content or services and that we are not an agent of any third party, nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible.

15. Electronic Communications

a.     When you use our Services or send email to us, you are communicating with us electronically.  You consent to receive communications from us electronically.  Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email or by posting notices on our Services. 

b.     You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

16. Electronic Transactions

Your use of the services includes the ability to enter into agreements and/or to make transactions electronically including, without limitation, in application purchases and other financial transaction. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including in application purchases, financial transactions, notices of cancellation, policies, contracts, and applications. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

17.  User Content Rights and Related Responsibilities; License

a.     "User Content" means, without limitation, any emails, digital files, images, photos, artwork, videos, audio and documents, or other content you upload, transmit, post or otherwise make available to Find Your Penguin and/or its users via the Services.

b.     In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.

c.     You agree to use our Services and the Content (whether provided by us or others) in a manner consistent with all applicable laws and regulations. You agree not to transmit or post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material.

d.     You are solely responsible for User Content. Find Your Penguin may remove or return any of User Content at any time for any reason or for no reason at all. We are not responsible for the accuracy, appropriateness, or legality of User Content.

18. Privacy and Your Personal Information

For information about the Find Your Penguin data protection practices and privacy policies, please read our Privacy Policy where you accessed these Terms of Service. This policy explains how we treat your personal information, and protect your privacy when you use the Services. You agree to the use of your data in accordance with Find Your Penguin Privacy Policy.

19. Copyright Policy

We respect the intellectual property rights of others. Please notify us by e-mail at info@findyourpenguin.com, if you believe that a user of the website or Services has infringed your intellectual property rights. We reserve the right to remove any User Content on the Services which allegedly infringes another person's copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on the Services which allegedly infringes another person's copyright. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").

20. Disclaimers; No Warranties

a.     FIND YOUR PENGUIN MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, THAT THE USE OF OUR SERVICE, INCLUDING WITHOUT LIMITATION, THE SERVICES PROVIDED BY ANY CONSULTANT, EMPLOYEE, EXECUTIVE, OR OFFICER OF FIND YOUR PENGUIN, WILL RESULT IN THE USER SUCCESSFULLY SECURING A DATE.

b.     FIND YOUR PENGUIN DISCLAIMS ANY REPRESENTATION, EXPRESS OR IMPLIED, THAT ANY CONSULTANT, EMPLOYEE, EXECUTIVE, OR OFFICER OF FIND YOUR PENGUIN HAS ANY RELEVANT PROFESSIONAL DEGREE OR CERTIFICATION TO PROVIDE THE SERVICES.

c.     OUR CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES ARE PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.

d.     WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT , THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICESOR THE SAFETY, RELIABILITY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT, THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES.

e.     IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE CONTENT AND THE SERVICES, AND THE PRODUCTS ASSOCIATED WITH OUR SERVICES.

f.      YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

g.     WE MAKE NO REPRESENTATIONS THAT OUR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY JURISDICTIONS. WHEN YOU ACCESS OR USE OUR SERVICES FROM A JURISDICTION, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

h.     SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

21. Limitations of Liability

a.     IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF OUR SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY DIGITAL DATA, IMAGES, PHOTOS, ARTWORK, VIDEOS, AUDIO, DOCUMENTS,INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH OUR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

b.     THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH, POSTED BY OTHER USERS OR ADVERTISED ON THE WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE WEBSITE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE WEBSITE SERVICE. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE WEBSITE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE WEBSITE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

c.     WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.

d.     OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, CONSULTANTS, EMPLOYEES, INDEPENDENT CONTRACTORS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.

e.     YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

f.      CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

22. Indemnity

a.     You agree that you will be personally responsible for your use of the Service, and you agree to defend, indemnify and hold harmless Find Your Penguin and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.

b.     We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

23. Release

a.     By using the Services, the Site or the App, you release, to the maximum extent allowed by law, Find Your Penguin, its officers, directors, employees, consultants, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services, the Site or the App, and any transaction effected through the Services, the Site or the App.

b.     If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

24. Amendments to this Agreement

We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services.  The date on which this Agreement was last updated will be noted immediately below these Terms.  Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.

25. Our Remedies

a.     You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. 

b.     For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of California, or a United States District Court for the State of California. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.

26. Dispute Resolution

THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.

 

For any dispute you have with Find Your Penguin, you agree to first contact us at info@findyourpenguin.com and attempt to resolve the dispute with us informally. If Find Your Penguin has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:

a.     You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.

b.     Applicable Law. You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.

c.     Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services delivered, sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate.

d.     Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.

e.     Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of California. You and we agree to submit to the personal jurisdiction of the courts located within California for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of California; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of California.

27. Law Enforcement

a.     Find Your Penguin is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If Find Your Penguin receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.

b.     Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), Find Your Penguin may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone.Find Your Penguinwill not release more information than it prudently believes is necessary to prevent harm in an emergency situation.

 

Miscellaneous

 

28. Severability

If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.

29. No Waiver

Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.

30. Survival

All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.

31. Entire Understanding

This Agreement and the Privacy Policyrepresent the entire understanding and agreement between you and us regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.

If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at info@findyourpenguin.com.

 

Last updated: February 1, 2017