Last Updated: May 18, 2021.
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.
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.
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”).
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.
Transaction Risks & Other Risks of Us
Our Fees & Payment
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.
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.
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.
c. If, despite the other terms of this Section, we are ultimately found to be liable to you, you agree that:
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.
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.
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: firstname.lastname@example.org.
We will endeavor to respond quickly to requests for assistance, but we can’t make any guarantees about timing or results.
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.
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.
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.
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.
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.
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.
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.