top of page

Terms & Condiitons

Last Updated: 1/31/2024

​

  1. Introduction

  2. Important Disclaimers – Informational Platform Only: No Legal or Other Professional Advice 

  3. Platform Access and Availability

  4. Ownership

  5. Limited Right to Access and Use the Platform

  6. Acceptable Use

  7. Links from the Platform

  8. Linking to the Platform

  9. User Content

  10. Geographic Restrictions

  11. Disclaimer of Warranties; Limitation of Liability

  12. Indemnification

  13. Term and Termination

  14. Privacy

  15. Dispute Resolution; Arbitration Agreement; Class Action and Jury Trial Waiver 

  16. Miscellaneous

​

​

Introduction

The use of Penguin Benefits, Inc.’s (“we”, “us” or “our”) websites (including www.penguin-benefits.com) and browser-based and mobile applications and tools, in each case that expressly link to and indicate that they are covered by these Terms of Use (collectively, our “Platform”) by users (“you”, “your” or “users”) is subject to the terms and conditions contained in these Terms of Use (“Terms”).

​

Please read these Terms carefully before you begin using the Platform. These Terms are legally binding and your use of the Platform serves as your acceptance of the Terms, INCLUDING BUT NOT LIMITED TO THE IMPORTANT DISCLAIMERS IN SECTION 2 BELOW.

​

IMPORTANT: THESE TERMS INCLUDE A MANDATORY ARBITRATION PROVISION AND CLASS ACTION AND JURY TRIAL WAIVER in Section 15 THAT GOVERN ANY DISPUTES BETWEEN YOU AND US. PLEASE READ THEM CAREFULLY.

IF YOU DO NOT AGREE TO THE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION AND JURY TRIAL ACTION WAIVER, DO NOT USE THE PLATFORM.

​

We may amend the Terms by posting the amended versions on our Platform. You agree that such posting will constitute sufficient and effective notice. By continuing to use the Platform after we post an amended version, you confirm your acceptance of the Terms as amended. If you do not agree with any of the changes, you must immediately stop using the Platform, and your right to access and use the Platform will immediately terminate.

​

IMPORTANT DISCLAIMERS – INFORMATIONAL PLATFORM ONLY; NO LEGAL OR OTHER PROFESSIONAL ADVICE

The following disclaimers and limitations of liability shall limit neither (1) the more general disclaimers and limitations of liability in Section 11 or elsewhere in these Terms nor (2) the more specific disclaimers that may be set forth within our Platform with respect to certain tools or other features or functionalities:

​

WE OFFER THE PLATFORM SOLELY TO PROVIDE CONTENT FOR GENERAL INFORMATIONAL PURPOSES. WE DO NOT OFFER OR PURPORT TO OFFER, AND THE CONTENT AVAILABLE ON THE PLATFORM DOES NOT CONSITUTE OR PURPORT TO CONSTITUTE OR SUBSTITUTE OR PURPORT TO SUBSTITUTE FOR, LEGAL OR OTHER PROFESSIONAL ADVICE RELATING TO BENEFITS ELIGIBILITY, BENEFITS AMOUNTS OR ANY OTHER MATTER.

​

You should consult with a professional advisor or the official leave administrator of each benefit (e.g., state, insurers, third party administrators) regarding your specific situation and if you have legal questions, you are urged to consult a lawyer concerning your own situation regarding any specific legal questions you may have. For more specific FMLA information, see www.dol.gov/agencies/whd/fmla. For any state leave specific information, please consult applicable state websites for the most current state leave regulation information.

​

WE DO NOT WARRANT the accuracy, completeness, or usefulness of any information available on the Platform. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Platform, or by anyone who may be informed of any of its contents. We may update the content on this Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Platform may be out of date at any given time, and we are under no obligation to update such material.

​

Platform Access and Availability

The Platform is provided at our sole discretion, subject to your full compliance with these Terms, and is intended solely for your own personal, non-commercial use. We reserve the right to withdraw or amend our Platform, and any functionality, service, or material we provide on the Platform, in our sole discretion, without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period.

 

Ownership

All rights, title, and interest in the Platform and all text, displays, images, graphics, trademarks, logos, designs, names, representations, likenesses, audio, video, information, data, content, and other material displayed on, or downloadable from, the Platform (collectively, “Protected Material”) are and will remain the property of Penguin Benefits, Inc. or its licensors. Except for the limited right to access and use the Platform granted below, neither these Terms nor your use of the Platform convey or grant to you any rights in or related to the Protected Material.

 

Limited Right to Access and Use the Platform

Subject to your acceptance of and continued compliance with the Terms, we grant you a limited, non-transferable, non-exclusive right to access and use the Platform for your own personal, non-commercial use. You may not copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, reverse engineer, disassemble, decompile or use the Platform or any component of it, except as expressly authorized by us. Except as otherwise required by applicable law, any use, reproduction, distribution, modification, retransmission or publication of any Protected Material is strictly prohibited without the express written consent of the owner of the Protected Material. All rights not expressly granted herein are reserved by Penguin Benefits, Inc.

 

Acceptable Use

We prohibit certain kinds of conduct with respect to the Platform. We reserve the right to determine whether a user’s conduct violates these Terms, and to take action as we deem appropriate, which may include suspending access to the Platform.

​

Without limiting the foregoing, you agree that you will: not use the Platform in any way that violates these Terms or any applicable federal, state, local or international law or regulation; not use or attempt to use or impact or attempt to impact the Platform in any manner that could damage, disable, overburden, interfere with the proper working of, or impair the Platform (or any websites or systems connected to or supporting the Platform) or interfere with any other person’s use or enjoyment of the Platform; not use any automated or manual process, device, or technique to monitor or copy any Protected Material; not use the Platform to transmit or otherwise facilitate any false, inaccurate, misleading, libelous, defamatory, obscene, threatening, invasive, junk, spamming, abusive, illegal, or otherwise objectionable communications; not use the Platform to engage in any impersonation of any person; not use the Platform in any manner that violates, infringes, or misappropriates any party’s intellectual property, privacy, publicity, or other legal rights; and not otherwise use the Platform to disseminate any content or communications, or engage in any actions, that subject or potentially subject us or any other person to any harm.

​

Links from the Platform

The Platform may contain links to other sites and resources provided by third parties. We provide these links for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked from this Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

 

Linking to the Platform

You may link to our Platform provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our prior written consent. Subject to the foregoing, you will not (i) establish a link from any website that is not owned by you, (ii) cause the Platform or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site, or (iii) otherwise take any action with respect to the materials on the Platform that is inconsistent with any other provision of these Terms. You agree to cooperate with us in causing any unauthorized framing or linking to cease immediately. We reserve the right to withdraw linking permission in our sole discretion, without notice.

 

User Content

To the extent that any content submitted by you to the Platform or generated through your use of the Platform (your “User Content”) is protected by any copyright or other proprietary right, you hereby grant us a perpetual, irrevocable, fully transferable and sub-licensable, worldwide right and license to use your User Content in any way and for any purpose in connection with the Platform and related goods and services, and to distribute your User Content without any further notice or compensation to you of any kind for the whole duration of protection granted to such intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to our use and enjoyment of your User Content in connection with the Platform and related goods and services under applicable law. The foregoing license grant, and the above waiver of any applicable moral rights, survives any termination of these Terms.

 

Geographic Restrictions

We are based in the United States. We make no claims that the Platform or any of its content is accessible or appropriate outside of the United States. Access to the Platform may not be legal by certain persons or in certain countries. If you access the Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

 

DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

IN ADDITION TO AND WITHOUT LIMITING THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE UNDER SECTION 2 (IMPORTANT DISCLAIMERS):

​

YOU ACKNOWLEDGE AND UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR PLATFORM FOR ANY RECONSTRUCTION OF ANY LOST DATA. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY PRODUCTS OR SERVICES OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY PLATFORM LINKED TO IT.

​

THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING, THAT THE PLATFORM WILL BE OF A CERTAIN QUALITY OR SUITABILITY, OR WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

​

WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE PLATFORM, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY (AND OUR EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH US IS TO STOP USING THE PLATFORM.

​

TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITY AS SET FORTH HEREIN, THE SCOPE OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM REQUIRED UNDER SUCH APPLICABLE LAW.

​

Indemnification

You agree to indemnify, defend, save, and hold Penguin Benefits, Inc., its affiliated companies, owners, shareholders, members, officers, directors, managers, contractors, employees, agents and licensors (each, a “Penguin Benefits Entity”) harmless from and against any and all claims, losses, damages, and liabilities, including legal fees and expenses, arising out of or relating to: (i) your use of the Platform; (ii) your breach of these Terms; or (iii) your User Content. You are solely responsible for defending any claim against a Penguin Benefits Entity, subject to such Penguin Benefits Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all claims against a Penguin Benefits Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Penguin Benefits Entity without its prior express written consent. If we assume the defense of any claim, you agree to cooperate with our defense of such claims.

 

Term and Termination

We reserve the right to condition a user’s right to access and use the Platform on that user’s compliance with these Terms. We also reserve the right to terminate a user’s right to access and use the Platform, at any time, at our sole discretion. You may terminate these Terms by discontinuing your use of the Platform. Notwithstanding such a termination, Sections 2, 4, 9, 11, 12, 15 and 16 of the Terms will remain in force, and you will continue to be liable for all your activities during the time you used the Platform. ​​

Privacy

Access to and use of the Platform is subject to our Privacy Notice. By using the Platform, you confirm that you do not object to the practices described in our Privacy Notice.

DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION AND JURY TRIAL WAIVER

BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST US ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS ARBITRATION AGREEMENT. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION AGAINST US, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION BROUGHT AGAINST US BY SOMEONE ELSE.

​

INITIAL DISPUTE RESOLUTION AND NOTIFICATION. You and we agree that, prior to initiating an arbitration or other legal proceeding, you and we will attempt to negotiate an informal resolution of the Dispute (as defined below). To begin this process, and before initiating any arbitration or legal proceeding against us, you must send a Notice of Dispute (“Notice”) to us using the contact information in Section 16(g) below. For purposes of these Terms, initiating an arbitration means filing an arbitration demand (“Demand”).

​

Your Notice of Dispute must contain all of the following information: (1) your full name, address, and relationship to us; (2) a detailed description of the nature and basis of the Dispute; (3) a description of the relief you want, including any money damages you request; and (4) your signature verifying the accuracy of the Notice of Dispute and, if you are represented by counsel, authorizing us to disclose information about you to your attorney.

​

After receipt of your Notice of Dispute, you and we shall engage in a good-faith effort to resolve the dispute for a period of 60 days, which both sides may extend by written agreement (“Informal Dispute Resolution Period”). During the Informal Dispute Resolution Period, neither you nor we may initiate an arbitration or other legal proceeding.

​

If the Dispute is not resolved during the Informal Dispute Resolution Period, either party may initiate an individual arbitration as provided below, except for Disputes (i) that may be brought in an individual action in small claims court, or (ii) that relate to the ownership or enforcement of intellectual property rights. In addition, you and we each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. In any such case, your waiver of the right to a jury trial and the class action waiver set forth in this Arbitration Agreement shall continue to apply.

​

“Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and us concerning the Platform or Terms, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. You and we empower the Arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these Terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of the Terms are void or voidable.

​

CLASS ACTION AND JURY TRIAL WAIVERS. BY ENTERING INTO THE TERMS, YOU AND WE EACH EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY. ADDITIONALLY, YOU AND WE AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY AND THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED IN ANY PURPORTED CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR ON BEHALF OF THE GENERAL PUBLIC, OTHER USERS, OR ANY OTHER PERSONS. As such, you and we acknowledge and agree that each waives any right to participation as a plaintiff or a class member in a class action litigation or arbitration, or in any other collective or consolidated action, with respect to these terms. Neither you nor we may be a representative of any other potential claimants or class of potential claimants in any such dispute, nor may two or more users’ disputes be consolidated or otherwise determined in one proceeding. This will also preclude you and us from participating in or recovering relief under any current or future class, joint, collective, representative, or consolidated action brought by someone else.

​

Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules, the Supplementary Procedures for Consumer Related Disputes, and/or the Supplementary Rules for Multiple Case Filings (“AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

​

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Delaware.

  1. Initiating Arbitration. A party who desires to initiate arbitration must provide the other party with a written Demand as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879.) The Arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the proposed list of arbitrators by the AAA, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

  2. Location and Procedures. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the Arbitrator, unless you request a hearing and the Arbitrator determines that a hearing is necessary. If the claim exceeds $10,000, arbitration may be conducted in person, through the submission of documents, by phone, or online, and your right to a hearing will be determined by the AAA Rules. Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in Santa Clara County, California or in another jurisdiction to which you and we agree in writing; provided, however, that if circumstances prevent you from traveling to Santa Clara County, California, the AAA may hold an in-person hearing in the state where you reside. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

  3. Arbitrator’s Decision. The Arbitrator will render a written award within the time frame specified in the AAA Rules and shall provide a written decision with a statement of reasons if requested by either party. The Arbitrator may award declaratory or injunctive relief, but only in favor of the individual claimant, and only to the extent necessary to provide relief warranted by the claimant's individual claim. The Arbitrator shall not have authority to entertain any claim on behalf of a person who is not a named party, nor shall the Arbitrator have authority to make any award for the benefit of, or against, any person who is not a named party. The Arbitrator’s decision shall be final and binding on all parties. The Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.

​

You and we agree to submit to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

  1. Procedures for Multiple Case Filings. YOU AND WE AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF US IS WAIVING THE RIGHT TO BRING OR PARTICIPATE IN AN ARBITRATION INVOLVING MULTIPLE CASE FILINGS. Our receipt of twenty-five or more similar Demands for Arbitration (including yours) where representation of the parties is consistent or coordinated across claims (“Multiple Case Filing”) shall be subject to the additional procedures set forth below. Demands included in a Multiple Case Filing may proceed only in accordance with the procedures set out below, and subject to the AAA Supplementary Rules for Multiple Case Filings (“AAA Multiple Case Filing Rules”) to the extent not contrary to the terms of this Arbitration Agreement. If a court determines that this Section 15(E) is not enforceable as to your Demand, then your claim may only proceed individually in court consistent with these Terms.

    1. Batching: You and we agree that your and other individuals’ Demands deemed by us to be a Multiple Case Filing may be filed with AAA in batches of no greater than 50 individuals’ claims at one time, with 25 claims (or half of the total number of claims in a batch, if less than 50) selected by counsel for you and other claimants and 25 claims (or half of the total number of claims in a batch, if less than 50) selected by us. After your claim is batched and permitted to be filed as a Demand with the AAA, you and we agree that selection and appointment of one or more Arbitrators for your Demand shall be governed by the AAA Multiple Case Filing Rules.

    2. First (Bellwether) Batch: The first batch of up to 50 Demands are the Bellwether Arbitrations. If your Demand is included in the Bellwether Arbitrations, you and we shall cooperate with the Arbitrator(s) assigned to your arbitration to resolve your claim within 120 days of the initial pre-hearing conference.

    3. Stay of Filing of Other Demands: If your Demand is not among those selected for the Bellwether Arbitrations, your Demand cannot be filed until it is assigned to a batch and authorized to be filed in a later stage of this process. No arbitration fees will be assessed on you or we in connection with your Demand unless and until it is assigned to a batch and authorized to be filed with AAA.

    4. Mediation: After the Bellwether Arbitrations are completed, if your Demand remains unresolved, you and we agree to mediate your claim along with any other unresolved claims included in the Multiple Case Filing (“Global Mediation”). The mediator will be selected according to the procedure set forth in the applicable AAA mediation procedures, and we will pay the mediator’s fees. The Global Mediation shall be completed within 120 days of the selection of a mediator, unless extended by written agreement between you and us.

    5. Election To Proceed in Court: If Global Mediation is not successful in resolving your claim, and 100 or more claims included in the Multiple Case Filing remain unresolved, you or we may opt out of arbitration and elect to have your claim resolved in court consistent with Section 16(b) of these Terms. You or we must exercise this election within 45 days of the completion of Global Mediation.

    6. Sequential Arbitration of Remaining Batches: If neither you nor we opt out of arbitration, another batch of no greater than 50 individuals’ Demands will be selected from the Multiple Case Filing, with 25 claims (or half of the total number of claims in a batch, if less than 50) selected by counsel for claimants and 25 claims (or half of the total number of claims in a batch, if less than 50) selected by us. If your Demand is included in this next batch of 50 claims, your Demand will be filed with AAA, and you and we shall cooperate with the Arbitrator assigned to your arbitration to resolve your claim within 120 days of the initial pre-hearing conference. The process of batching up to 50 individual claims at a time will continue until the parties resolve all claims included in the Multiple Case Filing. No unbatched Demand can proceed to arbitration until the previous batch has been resolved.

    7. Tolling: For any claim subject to these Multiple Case Filing procedures, any statute of limitations applicable to your claim shall be tolled from the date we receive your Demand until the earlier of (1) the date your Demand is filed with the AAA, or (2) the date you or we opts out of arbitration pursuant to Section 15(E)(v).

    8. Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We will reimburse those fees for claims totaling less than $10,000 unless the Arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). The right to recover attorneys’ fees and expenses set forth in the Terms supplements any right to attorneys’ fees and expenses you may have under applicable law. You may not, however, recover duplicative awards of attorneys' fees or costs.

    9. Severability. If any part of this Arbitration Agreement, other than the class action waiver, is deemed or found to be unenforceable for any reason, the remainder shall be enforceable. The class action waiver is non-severable and if it is deemed or found to be unenforceable for any reason, the whole Arbitration Agreement shall be null and void.

​

Miscellaneous


Severability

You and we agree that if any portion of these Terms is found unlawful or unenforceable, in whole or in part, that provision will be ineffective only to the extent of such finding and as to such jurisdiction, without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which will be enforced to the fullest extent of applicable law.

​

Choice of Law; Venue

Except as set forth in the Arbitration Agreement above: you and we agree that these Terms and any dispute of any nature that might arise between you and us will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict or choice of laws principles, and that any action relating to any such dispute will be filed, and venue properly lie, only in the state or federal courts located in Santa Clara County in the State of California; and you and we expressly consent and submit to the exclusive and personal jurisdiction of such courts for the purposes of litigating such action.

​

Assignment

We may assign our rights and obligations under these Terms, in whole or in part, to any person or entity at any time with or without your approval. You may not assign any of the rights or obligations you have under these Terms without our prior written approval. Any such assignment without our prior written approval is ineffective and in violation of these Terms.

​

Entire Agreement

These Terms, including any additional policies referenced in the Terms, are the entire agreement between you and us regarding the subject matter hereof. They supersede all prior and/or contemporaneous understandings, regardless of the medium (oral, written, or electronic) and practice (custom, policy, course of business, precedent) by which such understandings were communicated.

​

No Waiver

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

​

Notices to Penguin Benefits, Inc.

All notices given by you or required from you under these Terms must be in writing and addressed to us at the address set forth in the Contact Information section, below. Any notices that you provide without compliance with this subsection will have no legal effect.

 

Contact Information

If you have questions, complaints, notices or claims with respect to the Terms, please direct such communications to Penguin Benefits, Inc., by contacting us at info@penguin-benefits.com

​

bottom of page