TRANSACTION TERMS

Last Updated: May 18, 2021.

 

  1. Notice; Agreement; Applicability

    PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS THAT MIGHT APPLY TO YOU. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

    These Transaction Terms apply to your use of www.getapenguin.com including any content, functionality, and services offered on or through www.getapenguin.com (the “Website”) and any offer, purchase, or sale of products through the Website. Any person who uses or engages with the Website is a “user” for purposes of these Transaction Terms.


    The Transaction Terms include, and incorporate by reference, our Privacy Policy [●PRIVACY POLICY URL●] and Terms of Use [● TERMS OF USE URL●]. By using the Website, clicking to accept or agree to the Transaction Terms when this option is made available to you, or placing an order for products from this Website, you: (1) accept and agree to be bound and abide by these Transaction Terms, our Privacy Policy, and the Terms of Use; and (2) affirm that you are of legal age to enter into this Agreement and form a contract in your jurisdiction of residence.

    These Transaction Terms are subject to change by XIT XTREME LLC (“XIT,” “Seller” “us,” “we,” or “our”) without prior written notice at any time, in our sole discretion. Any changes to the Transaction Terms will be in effect as of the “Last Updated” date at the top of the page. You should review these Transaction Terms prior to engaging in any transaction or making an offer through this Website. Your continued use of this Website after the “Last Updated” date will constitute your acceptance of and agreement to such changes.

     

  2. What We Provide

    The Website is an online platform that permits you to view information and purchase products sold by XIT (each, a “Product”). The Website is accessible by users who browse the website and to purchasers of Products on the Website (“Buyers”).


    Without limiting in any way our rights or disclaimers set out in the Terms of Use and Privacy Policy, we reserve the right to modify or discontinue, temporarily or permanently and in our sole discretion, all or any portion of the Website, including, but not limited to, user accounts, User Contributions, or any listing offering a Product for sale (“Listing”). You agree that we will not be liable to you or any third party for any modification, suspension, or discontinuance of all or any portion of the Website or any Listing. You agree that we have no responsibility or liability for the deletion, failure to store, or failure to preserve any data or content maintained on the Website or generated by you. 

     

  3. Other User Responsibilities & Conditions
    You agree to the following:


    a. As Buyer, you must read the full descriptions and terms in the Listing before buying a Product.

    b. When you commit to buy a Product, you are entering into a legally binding contract. We do not allow any exchanges, refunds, or returns of used, damaged, or otherwise non-returnable products. We reserve the right to determine if a returned product is in a used, damaged, or otherwise non-returnable condition. We do not have to provide a refund if you have changed your mind about a particular purchase, so please choose carefully. If there was an error in your order you have THIRTY (30) DAYS from the day you received your purchase to contact us regarding the order’s error. We have sole discretion to decide whether to accept the exchange, refund, or return. In any event, proof of purchase is REQUIRED for all orders necessitating Customer Service attention.

    c. Texas Business & Commerce Code § 2.401(b) (or, if found to be inapplicable, Uniform Commercial Code § 2-401(2)) applies to the transfer of ownership of any Product, unless the Buyer and Seller agree otherwise.

     

  4. Transaction Risks & Other Risks of Us

    The price displayed for products on the Website typically represents the full retail price of the product. However, if a product is mispriced on the Website and the item's correct price is higher than the displayed price, we will, at our discretion, either contact the purchaser for instructions before shipping or cancel the order and notify the purchaser of such cancellation. We do not warrant that product descriptions or other contents of the Website are accurate, complete, reliable, current, or error-free. If a product on the Website is not as described, your sole remedy is to return it in an unused, undamaged, returnable condition. The rights and remedies associated with returns are discussed above. You agree to assume all risks associated with dealing or communicating with other users on the Website and agree that all risks are borne by you and not Intaglio. We don’t control, evaluate, or monitor the behavior or communications of users of the Website, the information provided by users, or User Contributions (as defined in the Terms of Use).


    We reserve the right to delay or block the completion of any transaction for purposes of evaluating compliance with laws, risk prevention, fraud detection, or as we otherwise deem it necessary in our sole discretion to protect XIT and its users from harmful, fraudulent, deceptive, or wrongful activities or any violations of the Transaction Terms or Terms of Use.

     

  5. Our Fees & Payment

    We have the sole discretion to provide the terms of payment. Unless otherwise agreed, payment must first be received by us prior to our acceptance of an order. Unless a credit term has been agreed upon between you and us, payment for the Product shall be made by credit card, debit card, or other acceptable form of payment. Acceptable methods of payment are determined by us and may be changed without notice to you or anyone. We retain total discretion to cancel or deny orders. We are not responsible for pricing, typographical, or other errors in any descriptions by us, and we reserve the right to cancel any orders arising from such errors. You agree to pay all fees charged by us or on the Website, regardless of whether your account has been suspended, terminated, is otherwise unavailable. We may use a third-party service provider such as a payment processor (“Payment Processor”) for payment and order processing. We and the Payment Processor accept most major credit cards and may, at our discretion, offer alternative payment methods. By submitting your payment information to us, whether directly through the website or through the Payment Processor, you hereby authorize us to collect any and all fees due in connection with your purchase. You agree that, in addition to any other remedies available to us, we may suspend or terminate your Website account for failure to pay fees, and we may collect any fees owed from the proceeds of other transactions you consummate through the Website. You agree that we may ask a third-party service provider to take any action that we would be authorized to take ourselves. We are not affiliated with any Payment Processor or any credit card provider or bank. Your use of a given payment methods is subject to your agreement with that payment method provider, credit card company, or bank, but that will not affect your relationship with us. We disclaim any liability or warranties related to your relationship with your payment provider, credit card company, or bank. You are responsible for reviewing and agreeing to any applicable terms of use or service with these third parties.

     

  6. Taxes & Shipping

    Once you pay for the product, the Website will begin coordinating shipping. You hereby agree that risk of loss for purchased products shifts from us to you upon delivery of the purchased products to the shipment provider. We make no warranties as to how long it will take us to ship your product, but we work to ship products out quickly. Products purchased on the Website and shipped to Buyers may be subject to applicable state or local sales or use tax or similar transaction taxes. Tax may not be included in the Listing’s posted price. We may estimate those costs as a courtesy to you, but those estimates may not be accurate or reflect the actual amount of taxes payable. We reserve the right to collect taxes that we are required by law to collect as a marketplace, but unless we collect taxes at checkout, we bear no responsibility for collecting or paying taxes associated with the sale of the Product. Buyer is responsible for paying applicable taxes associated with the purchase and sale of a Product. Note that Buyer and/or Seller may be required by law to declare, pay, or collect taxes on Product purchases and sales. Any estimates we provide are for convenience; if you need help calculating your tax liabilities and reporting obligations, please consult with a tax professional.

     

  7. DISCLAIMERS

    a. YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE LISTING AND THE PRODUCT.


    b. YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED OR OFFERED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND FROM US, EITHER EXPRESS OR IMPLIED. YOU ACKNOWLEDGE THAT NEITHER XIT XTREME LLC NOR ANY PERSON ASSOCIATED WITH XIT XTREME LLC MAKES (NOR ARE YOU RELYING ON) ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE, OR ANY PRODUCTS, LISTINGS, OFFERS, OR INFORMATION ON THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER XIT NOR ANYONE ASSOCIATED WITH INTAGLIO REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, ANY LISTING, OR ANY SERVICES OR PRODUCTS OBTAINED OR OFFERED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, UNINTERRUPTED, SAFE, OF A CERTAIN QUALITY, OR AS DESCRIBED, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

    c. TO THE FULLEST EXTENT PROVIDED BY LAW, XIT AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY:

    i. WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE; AND

    ii. IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

     

  8. Release; Indemnification; Limitation of Liability

    a. You, on your own behalf and on behalf of your successors and assigns, agree to release, acquit, and discharge XIT and its affiliates, and each of their agents, members, managers, employees, officers, and contractors, (“XIT Parties”) from all claims, demands, suits, controversies, disputes, damages, rights, or obligations of any kind whatsoever, at common law, under contract, statute, or otherwise, whether known or unknown (“Claims”) arising out of or in any way connected with such disputes. In entering this release, to the extent a waiver is permitted by applicable law, you expressly waive any protections, whether statutory or otherwise, that would otherwise limit the coverage of this Section to include only those claims that you may know or suspect to existing your favor at the time of agreeing to this release.


    b. You agree to indemnify, defend, and hold harmless the XIT Parties from all Claims arising out of or relating in any way to any transaction entered into using the Website, any Product, offer, or communication, or any other matter related to use of the Website or facilitated by the Website. Your indemnification obligation specifically extends to, but is not limited to, your breach of the Terms of Use or​ Transaction Terms, your improper use of the Website, or your breach or alleged breach of any law or the rights of a third party. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TERMS OF THIS AGREEMENT SHALL BE ENFORCEABLE REGARDLESS OF WHETHER THE CLAIM OR LIABILITY IS BASED ON PAST, PRESENT, OR FUTURE ACTS, CLAIMS, OR LEGAL REQUIREMENTS, AND REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE INDEMNIFICATION RECIPIENT’S NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF THESE TRANSACTION TERMS OR ANOTHER AGREEMENT, OR A STRICT LIABILITY OFFENSE.

    c. If, despite the other terms of this Section, we are ultimately found to be liable to you, you agree that:

    i. In no event shall we be liable to you or any third party for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues, or diminution in value, arising out of, or relating to, and/or in connection with any breach of these Transaction Terms or the Terms of Use, regardless of whether such damages were foreseeable, whether or not we were advised of the possibility of such damages, and the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based; and


    ii. our sole and maximum liability to you is limited in all circumstances to the greater of the amount of fees in dispute that you paid to us in the 12 month-period prior to our action that gave rise to liability or $100.
     

  9. Applicability of Sections 11 and 12
    a. Some jurisdictions, such as New Jersey, do not allow certain disclaimers, exclusions of certain warranties, indemnification commitments, or certain attempts to limit liability. Accordingly, the terms of Section 11. Disclaimers and Section 12. Release; Indemnification; Limitation of Liability do not affect any warranties or liabilities that cannot be excluded, disclaimed, or limited in any circumstance under applicable law or impose any limitations or indemnification obligations that cannot be imposed in any circumstances under applicable law. However, if any portion of Sections 11 and 12 are found to be invalid or limited under applicable law, the other provisions of these Sections 11 and 12 shall not be affected.

    b. Nothing in these Transaction Terms shall limit the disclaimers, indemnification obligations and rights, and limitations of liability contained in the Terms of Use, Privacy Policy, or any other agreement between you and us.
     

  10. Disputes with Other Users

    We encourage users to resolve their disputes with each other independently. However, we reserve the right to intervene and take such action as we deem necessary based on the information available to us, including the history of each user and the facts and circumstances. If you are unable to resolve a dispute with another user, please email us at: info@getapenguin.com.

    We will endeavor to respond quickly to requests for assistance, but we can’t make any guarantees about timing or results.

     

  11. Resolution of Disputes with Us; Waiver of Jury Trial; Agreement to Arbitration

    a. PLEASE READ THIS SECTION CAREFULLY. YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

    b. Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort, injunctive and equitable claims) between you and us arising from or relating in any way to the Website, Products offered on the Website, any transaction or communication on the Website, or your relationship with us will be resolved exclusively and finally by binding arbitration. The arbitration will be administered by the American Arbitration Association in accordance with the Consumer Arbitration Rules then in effect.

    c. You agree to an arbitration on an individual basis. In any dispute, neither you nor we will be entitled to join or consolidate claims by or against other customers in court or in arbitration or otherwise participate in any claim as a class representative, class member, or in a private attorney general capacity.

    d. You have the right to opt out of this agreement to arbitrate on an individual basis by providing written notice of your intention to do so within 60 days of your initial agreement to these Transaction Terms.
     

  12. Governing Law & Jurisdiction

    a. All matters relating to the Website, these Transaction Terms, Products offered on the Website, any transaction, Listing, or communication on the Website, your relationship with us, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).

    b. In the event the terms of Section 14. Disputes with Others do not apply, any legal suit, action, or proceeding arising out of, or related to the Website, these Transaction Terms, Products offered on the Website, any transaction, Listing, or communication on the Website, your relationship with us, and any dispute or claim arising therefrom or related thereto shall be instituted exclusively in the federal courts of the United States or the state courts of the State of Texas, in each case located in Tarrant County, although we retain the right to bring any suit, action, or proceeding against you for breach of these Transaction Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
     

  13. Waiver and Severability

    a. No waiver by XIT of any term or condition set out in these Transaction Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of a party to assert a right or provision under these Transaction Terms shall not constitute a waiver of such right or provision.

    b. If any provision of these Transaction Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Transaction Terms will continue in full force and effect.
     

  14. Successors & Assigns; Assignment

    These Transaction Terms shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Neither party may assign any of its rights under these Transaction Terms without the prior written consent of the other party; provided, however, that we may assign any of our rights to our affiliate, or in connection with a sale of XIT assets or equity, regardless of whether such sale results in a change of control or the sale of all or substantially all the assets of XIT.
     

  15. Counterparts

    These Transaction Terms may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of these Transaction Terms delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of these Transaction Terms.
     

  16. Relationship of the Parties; Third Party Beneficiaries

    Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer relationship. Except as provided by Section 11. Disclaimers and Section 12. Release; Indemnification; Limitation of Liability, these Transaction Terms are for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Transaction Terms.
     

  17. Force Majeure

    We will not be liable or responsible to you, nor deemed to have defaulted under these Transaction Terms, for any failure or delay in fulfilling or performing any term of these Transaction Terms, when and to the extent such failure or delay is caused by or results from acts beyond our reasonable control, including:

    a. Acts of God;
    b. Flood, fire, earthquake, pandemic, sickness, explosion, or other similar disasters;
    c. War, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest;
    d. Government order or law;
    e. Actions, embargoes, blockades in effect on or after the date of these Transaction Terms;
    f. Action by any governmental authority;
    g. National or regional emergencies; or
    h. Strikes, labor stoppages, or slowdowns.

    We promise to give you notice within a reasonable amount of time of the event listed above, which will state the period of time the occurrence is expected to continue. We promise to take commercially reasonable steps to end the failure or delay and ensure the effects of such event are minimized.
     

  18. Entire Agreement

    The Terms of Use, our Privacy Policy, and the Transaction Terms constitute the sole and entire agreement between you and XIT regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.