Terms of Use

Last updated: July 23, 2020

Please read these Terms of Use carefully before using the Service. By accessing or using the Service You accept these Terms of Use.

Interpretation and Definitions

Interpretation

The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Definitions

For the purposes of these Terms of Use:

Affiliate means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.

Penguin Benefits Affiliates means the Company, its Affiliates, partners, officers, directors, representatives, interns, employees, consultants, and agents.

Account means a unique account created for You to access our Service or parts of our Service.

Country refers to: California, United States

Company (referred to as either "the Company", "We", "Us" or "Our" in this Agreement) refers to Penguin Benefits, Inc., 1750 Meridian Ave #5614, San Jose, CA 95150.

Content refers to content such as text, images, audio, video, any metadata associated with such content, or other information that can be posted, uploaded, linked to or otherwise made available by You, regardless of the form of that content.

Device means any device that can access the Service such as a computer, a cellphone or a digital tablet.

Feedback, Testimonials, Comments mean feedback, testimonials, reviews, innovations or suggestions, or any other verbal or written communication sent by You regarding the attributes, performance or features of our Service.

Orders mean a request by You to pay for our Service, or a request by You to book an appointment with Us, or the action of You submitting information (on Our Website, or through other means of communication such as email) to Us to request for or to initiate our Service to You.

Service refers to the Website, and any online or offline information and services available from Penguin Benefits to You, conditioned upon Your acceptance of these Terms of Use.

Terms of Use (also referred as "Terms") means these Terms of Use that form the entire agreement between You and the Company regarding the use of the Service.

Third-party Social Media Service means any services or content (including data, information, products or services) provided by a third-party that may be displayed, included or made available by the Service.

Website refers to Penguin Benefits, accessible from https://www.penguin-benefits.com.

You means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.

Acknowledgment

These are the Terms of Use governing the use of this Service and the agreement that operates between You and the Company. These Terms of Use set out the rights and obligations of all users regarding the use of the Service.

Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms. By accessing or using the Service You agree to these Terms. These Terms apply to all visitors, users and others who access or use the Service. If You disagree with any part of these Terms then You may not access the Service.

ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISTPUTES BETWEEN YOU AND PENGUIN BENEFITS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

You represent that You are over the age of 18. The Company does not permit those under 18 to use the Service.

Your access to and use of the Service is also conditioned on Your acceptance of and compliance with the Privacy Policy of the Company. Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Website and tells You about Your privacy rights and how the law protects You. Please read Our Privacy Policy carefully before using Our Service. Our Privacy Policy is available at https://www.penguin-benefits.com/PrivacyPolicy.

Disclaimer

PENGUIN BENEFITS, INC. (“PENGUIN BENEFITS”) IS NOT A LAW FIRM. THIS WEBSITE IS NOT INTENDED TO PROVIDE LEGAL ADVICE OR ESTABLISH STANDARDS OF REASONABLE BEHAVIOR. PENGUIN BENEFITS AFFILIATES, INCLUDING CHENGCHEN (“CC”) LI, ARE NOT ATTORNEYS, ACCOUNTANTS, OR HEALTHCARE PROFESSIONALS. THE INFORMATION AVAILABLE FROM PENGUIN BENEFITS, AND/OR PENGUIN BENEFITS AFFILIATES, IS NOT LEGAL ADVICE, ACCOUNTING ADVICE, OR MEDICAL ADVICE, NOR IS IT INTENDED TO BE CONSTRUED AS LEGAL ADVICE, ACCOUNTING ADVICE, OR MEDICAL ADVICE. THE CONTENTS ARE INTENDED FOR GENERAL INFORMATION PURPOSES ONLY. LAWS VARY GREATLY BY STATE. THE APPLICATION OF LAW VARIES WITH AN INDIVIDUAL’S SPECIFIC CIRCUMSTANCES. PLEASE CONSULT AN ATTORNEY FOR SPECIFIC INFORMATION REGARDING ANY SECTION OF THIS WEBSITE, OR FOR CONFIRMATION THAT ANY INFORMATION OR INTERPRETATION OF LAW IS ACCURATE, CURRENT, AND APPLICABLE TO YOUR SITUATION. CONSULT AN ATTORNEY FOR ALL OF YOUR LEGAL NEEDS. CONSULT A HEALTHCARE PROFESSIONAL FOR ALL MEDICAL NEEDS. CONSULT A CPA FOR ACCOUNTING ADVICE.

The information provided by Penguin Benefits has been compiled from sources and documents believed to be reliable and represents the best professional judgement of Penguin Benefits. Despite Our efforts to provide accurate information, errors may appear from time to time. PENGUIN BENEFITS MAKES NO CLAIMS, PROMISES, OR GUARANTEE ABOUT THE ACCURACY, COMPLETENESS, OR ADEQUACY OF THE INFORMATION CONTAINED IN OR LINKED TO THIS WEBSITE, OR OTHERWISE CONVEYED IN CONNECTION WITH OUR SERVICES. NO RESPONSIBILITY IS ASSUMED OR IMPLIED BY PENGUIN BENEFITS FOR ANY DAMAGE OR LOSS RESULTING FROM INACCURACIES OR OMISSIONS.

Placing Orders on Services

By placing an Order on the Service, You warrant that You are legally capable of entering into binding contracts.

Your Information

If You wish to place an Order for Our Service, You may be asked to supply certain information relevant to Your Order including, without limitation, Your name, Your email, Your phone number, Your credit card number, the expiration date of Your credit card, Your billing address, Your shipping information, and other information that We collect as outlined in Our Privacy Policy.

You represent and warrant that: (i) You have the legal right to use any credit or debit card(s) or other payment method(s) in connection with any Order; and that (ii) the information You supply to Us is true, correct and complete.

By submitting such information, You grant Us the right to provide the information to payment processing third parties for purposes of facilitating the completion of Your Order.

Order Cancellation

We reserve the right to refuse or cancel Your Order at any time for certain reasons including but not limited to:

Service availability
Errors in the description of prices for Services
Errors in Your Order

We reserve the right to refuse or cancel Your Order if fraud or an unauthorized or illegal transaction is suspected.

Availability, Errors and Inaccuracies

We are constantly updating Our offerings of Service. Our Service may be mispriced, described inaccurately, or unavailable, and We may experience delays in updating information regarding Our Services and in Our advertising on other websites.

We cannot and do not guarantee the accuracy or completeness of any information, including prices, Service descriptions, and availability of Services. We reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

Prices Policy

The Company reserves the right to revise its prices at any time prior to accepting an Order.

The prices quoted may be revised by the Company subsequent to accepting an Order in the event of any occurrence affecting delivery of the Service caused by government action, variation in taxes and any other matter beyond the control of the Company. In that event, You will have the right to cancel Your Order.

Payments

Payment can be made through various payment methods We have available, such as Visa, MasterCard, American Express cards or online payment methods (PayPal, for example).

Payment cards (credit cards or debit cards) are subject to validation checks and authorization by Your card issuer. If We do not receive the required authorization, We will not be liable for any delay or non-delivery of Your Order.

User Accounts

When You create an Account with Us, You must provide Us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of Your Account on Our Service.

You are responsible for safeguarding the password that You use to access the Service and for any activities or actions under Your password, whether Your password is with Our Service or a Third-Party Social Media Service.

You agree not to disclose Your password to any third party. You must notify Us immediately upon becoming aware of any breach of security or unauthorized use of Your Account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

Content

Your Right to Post Content

Our Service allows You to post Content. You are responsible for the Content that You post to the Service, including its legality, reliability, and appropriateness.

By posting Content to the Service, You grant Us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service. You retain any and all of Your rights to any Content You submit, post or display on or through the Service and You are responsible for protecting those rights. You agree that this license includes the right for Us to make Your Content available to other users of the Service, who may also use Your Content subject to these Terms.

You represent and warrant that: (i) the Content is Yours (You own it) or You have the right to use it and grant Us the rights and license as provided in these Terms, and (ii) the posting of Your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.

Content Restrictions

The Company is not responsible for the Content of the Service's users. You expressly understand and agree that You are solely responsible for the Content and for all activity that occurs under Your Account, whether done so by You or any third person using Your Account.

You may not transmit any Content that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, the following:

Unlawful or promoting unlawful activity.
Defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups.
Spam, machine – or randomly – generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling.
Containing or installing any viruses, worms, malware, trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third person.
Infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights.
Impersonating any person or entity including the Company and its employees or representatives.
Violating the privacy of any third person.
False information and features.

The Company reserves the right, but not the obligation, to, in its sole discretion, determine whether or not any Content is appropriate and complies with this Terms, refuse or remove this Content. The Company further reserves the right to make formatting and edits and change the manner any Content is displayed. The Company can also limit or revoke the use of the Service if You post such objectionable Content. AS THE COMPANY CANNOT CONTROL ALL CONTENT POSTED BY USERS AND/OR THIRD PARTIES ON THE SERVICE, YOU AGREE TO USE THE SERVICE AT YOUR OWN RISK. You understand that by using the Service You may be exposed to content that You may find offensive, indecent, incorrect or objectionable, and You agree that under no circumstances will the Company be liable in any way for any content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of Your use of any content.

Content Backups

The Company do not guarantee there will be no loss or corruption of data.

Corrupt or invalid backup points may be caused by, without limitation, Content that is corrupted prior to being backed up or that changes during the time a backup is performed.

The Company will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of Content. But You acknowledge that the Company has no liability related to the integrity of Content or the failure to successfully restore Content to a usable state.

You agree to maintain a complete and accurate copy of any Content in a location independent of the Service.

Disputes Resolution

If You have any concern or dispute about the Service, You agree to first try to resolve the dispute informally by contacting the Company.

Arbitration Agreement

PLEASE READ THIS ARBITRATION AGREEMENT SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHTS TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.

Any dispute or claim relating in any way to Your Use of any Penguin Benefits Services, or to these Terms, or the breach thereof, will be settled by binding, individualized arbitration, rather than in court, except that (1) You may assert claims in small claims court if Your claims qualify ; and (2) You or Penguin Benefits may bring suit in court to enjoin infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the “Last Updated” date of these Terms. The Federal Arbitration Act and federal arbitration law apply to this Arbitration Agreement.

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES) AND MUST FOLLOW THE TERMS OF USE AS A COURT WOULD.

To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to Penguin Benefits, 1750 Meridian Ave #5614, San Jose, CA 95150, or to info@penguin-benefits.com. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. JAMS’s rules are available at https://www.jamsadr.com/ or by calling 1-800-352-5267. If the arbitrator finds that You cannot afford to pay JAMS's filing, administrative, hearing and/or other fees and You cannot obtain a waiver from JAMS, Penguin Benefits will pay them for You. In addition, We will reimburse all such JAM’s filling, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location.

YOU AND PENGUIN BENEFITS AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration YOU AND PENGUIN BENEFITS AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL.

30-day Opt Out Rights

You have the right to opt out of these Arbitration Terms by sending a written notice of Your decision to opt out to info@penguin-benefits.com, within 30 days of first becoming subject to this Arbitration Agreement. Even if You submit an opt out notice for Arbitration Terms, other parts of this Terms of Use will continue to apply to You. An opt out notice does not revoke or otherwise affect any other arbitration agreements that You may have with Us currently or in the future.

Intellectual Property Infringement

We respect the intellectual property rights of others. It is Our policy to respond to any claim that content posted on the Service infringes a copyright or other intellectual property infringement of any person.

If You are a copyright owner, or authorized on behalf of one, and You believe that the copyrighted work has been copied in a way that constitutes copyright infringement that is taking place through the Service, You must submit Your notice in writing to the attention of Our copyright agent via email at info@penguin-benefits.com and include in Your notice a detailed description of the alleged infringement.

You may be held accountable for damages (including costs and attorneys' fees) for misrepresenting that any content is infringing Your copyright.

DMCA Notice and DMCA Procedure for Copyright Infringement Claims

You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing Our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright's interest.
A description of the copyrighted work that You claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work.
Identification of the URL or other specific location on the Service where the material that You claim is infringing is located.
Your address, telephone number, and email address.
A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.

You can contact Our copyright agent via email at info@penguin-benefits.com. Upon receipt of a notification, the Company will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Service.

Intellectual Property

The Service and its original content (excluding Content provided by You or other users), features and functionality are and will remain the exclusive property of the Company and its licensors.

The Service is protected by copyright, trademark, and other laws of both the Country and foreign countries. No part of this Service may be reproduced, stored in a retrieved system, republished, or transmitted in any form or by any means (electronic, recording, or otherwise) without prior written permission from Penguin Benefits.

Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of the Company.

Your Feedback, Testimonials, and Comments to Us

You assign all rights, title and interest in any Feedback, Testimonials, Comments You provide the Company. If for any reason such assignment is ineffective, You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback, Testimonials, and Comments without restriction.

Testimonial Authorization and Release Information

If You submit a testimonial to Us through Our Service, then You agree that We may copy, exhibit, publish or distribute the testimonial and any information You choose to upload with the testimonial (including but not limited to: Your name, brief biographical information, and images), for purposes of publicizing the Company's programs or for any other lawful business purpose. The testimonial and uploaded information may be used in printed publications, multimedia presentations, on websites or in any other distribution media. You agree that You will make no monetary or other claim against the Company for the use of the Testimonial.

You further agree that We may edit the testimonial and publish edited or partial versions of the testimonial. However, We will never edit a testimonial in such a way as to create a misleading impression of your views.

Links to Other Websites

Our Service may contain links to third-party web sites or services that are not owned or controlled by the Company.

The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that the Company 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 the use of or reliance on any such content, goods or services available on or through any such web sites or services.

We strongly advise You to read the terms of use and privacy policies of any third-party web sites or services that You visit.

Termination

We may terminate or suspend Your Account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if You breach these Terms of Use.

Upon termination, Your right to use the Service will cease immediately. If You wish to terminate Your Account, You may simply discontinue using the Service.

Indemnification

You agree to indemnify, defend and hold harmless Penguin Benefits and Penguin Benefits Affiliates from any claim, demand, disputes, liabilities, damages, losses, costs and expenses, including but not limited to, reasonable legal and accounting fees, arising out of or in any way in connection with: (i) Your access or use of Our Services, (ii) Your breach of these Terms, or (iii) Your violation of any law or the rights of a third-party.

Limitation of Liability

Notwithstanding any damages that You might incur, the entire liability of the Company and any of its Affiliates, partners, officers, directors, representatives, interns, employees, consultants, and agents (“Penguin Benefits Affiliates”), under any provision of this Terms and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You for the products and/or Services.

To the maximum extent permitted by applicable law, in no event shall the Penguin Benefits Affiliates be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Service, third-party software and/or third-party hardware used with the Service, or otherwise in connection with any provision of this Terms), even if the Company or any of Penguin Benefits Affiliates have been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

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. In these states, each party's liability will be limited to the greatest extent permitted by law.

"AS IS" and "AS AVAILABLE" Disclaimer

The Service is provided to You "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of Penguin Benefits Affiliates and its and their respective licensors and service providers, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, neither the Company nor any of the Company's provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

Governing Law

The laws of the Country, excluding its conflicts of law rules, shall govern this Terms and Your use of the Service. Your use of the Application may also be subject to other local, state, national, or international laws.

Right to Refuse Service

We reserve the right to refuse service, and cancel user access, to anyone for any reason at any time.

For European Union (EU) Users

Our Service is intended for use of only United States consumers. Please do not use Our Service if You are a European Union consumer.

United States Legal Compliance

You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.

Severability and Waiver

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.

Translation Interpretation

These Terms of Use may have been translated if We have made them available to You on our Service. You agree that the original English text shall prevail in the case of a dispute.

Changes to These Terms of Use

We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. It is Your responsibility to monitor changes to these Terms. By continuing to access Our Website or use Our Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the Terms at any time, in whole or in part, please stop using the Website and the Service.

If you have any questions about these Terms of Use, You can contact us:

By email: info@penguin-benefits.com

By visiting this page on our website: https://www.penguin-benefits.com/contact

Testimonial

Terms of Use

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